Full Text
RFA 375/2010
JUDGMENT
Through: Ms.Madhulika Sareen, Advocate
Respondent
Through: Mr.V.K. Tandon, Advocate
To be referred to Reporter or not? Whether the judgment should be reported in the Digest?
G
CM No.3742/2011 (Apphcation for Add itional evdenç
After counsel for the parties had advanced substantial arguments, counsel for appellant has preferred the present application for adducing additional evidence before this court.
However, from a readina, of the appHcaton, I find 1:ha no coErut: reason or sufficient cause has been established by the counsel for appeUant as to why the applicatiort has been filed at such a heiated stage. In the absence of sufficient reason pleaded by the appellant, the present app!icaton cannot he entertained. 1 ako find force in the submission of counsel for the resnondent t:hat the
RFA 37512010 1 o 2011:DHC:17706 'apphcant by filing the present application is trying to delay the matter.
3. Accordingly, the application is dismissed. RFA Nó375/2010 ji.. The present appeal is directed against judgment and decrëè dated 17 03 2010 passed by learned Additonal District judge whereby he suit for rrcovery of oossession i!ed by the respondent was decreed 5 the b r i ef, lads nec essary to be noticed for dsposl of the present appeal are that th.e respondent claims herse!f to;be the pwnerbf II rrooerty bearirig ho 59B Ma! v I ya Naqar; Nw De!hi - i00. 1 i I - (herninat r referred to as suit property by vt[1] tue o a VJill dmd - I 7(J 02 19 / left u ro o',- tne 1tbci of i he pdri c s;ate 5 i r)dSt_ w h, o i- pired 01 1 1 1 7S A ppel'drt -d E pondr[1] are
0. in the said partition, the suit property fell in the appellant's share and that the respondent was given some cash from which she purchased a flat in Dehradun. To substantiate the aforementioned contention, the counsel for appellant has drawn the attention of the court to the deposition of PW-1, Smt. Prem Mahindroo, wherein she has admitted that the partition did take place during the lifetime of late Sh. Sham Dass. It is next submitted that when the partition had RFA 37512010 Page5of35 already taken place during the lifetime of late Sh. Sham Dass, there was no question for him to execute the alleged will in favour of the respondent and PW-11, Sh. Baidev Raj Wadhwa, The counsel for appellant next contends that there were some ancestral properties in Pakistan and when partition took place between the deceased father and his paternal uncles, two properties, being L-58 and [-59, Malviya Nagar, New Delhi came to his share and thus, suit property is an ancestral property. The suit property further fell to share of the appellant when oral partition took place in the year 1973. It is vehemently argued by counsel for appellant that there are material contradictions in the statements of the witnesses of the respondent which itself casts a.shadow of doubt on the version of the respondent. Submitting that the testimony of PW-1 is in complete contradiction with the testimony of PW-11, the cunsel states that while in her statement, PW-i, Smt. Prem Mahindroo deposes that the alleged Will pertained to only the suit property while PW-11, Sh. Baldev Raj Dhawan alleged himself to be also the beneficiary of some property through the alfged Will. The counsel for appellant contends that PW-1, Smt. Prem Mahindroo and PW-7, Smt. Nandini are interested witnesses, as both these witnesses were not summoned through the process of the court. The counsel has drawn the attention of the Court to the deposition of PW-7 wherein she has deposed that se has neither RFA 37512010 Page 6 0135 met the counsel who prepared the affidavit and that he ffidavit was got prepared by the respondent which was not attested in her presence. The counsel contends that the appropriate remedy for the respondent was to seek Probate/Letters of Administation impleading all the L.Rs of deceased Sh. Sham Dass but instead the respondent has filed the present suit against the appellant Only on the basis of disturbance of her possession in the suit property on the basis of the alleged Will dated 20.02.1973 under which she claims to be the beneficiary of the suit property. It is further contended by counsel for appellant that until and unless the respondent had made all the LRs as necessary parties or witnss in support of her case, the registration of the alleged Will in favour of the respondent was not possible. The counsel contends that the learned trial cburt has failed to take into consideration the factthat the respondent in her statement has herself admitted that she never obtained the NOCs of remaining LRS for getting thesuit property registered in her name. The counsel for appellant next contends that the learned trial court has failed to appreciate that evidence led by the appellant before the trial court. The counsel submits that the appellant has produced documents as well as witnesses to the effect that he was in possession of the suit property much prior to the year 1988. Attention of the Court is drawn to the statement of DW-2, Sh.Kishan RFA 37512010 Page 7of35 Singh, who deposed that gas connection at the suit premises was in the name of the appellant since 1983. Further, DW-3, Naresh Wadhwa and DW-6, Dalip Wadhwa who are family members have also deposed that they have no knowledge of the execution of the alleged Will and that the appellant has been residing in the suit property since long. The counsel also contends that the trial court has failed to appreciate the documents placed on record by the appellant to the effect of proving his possession over the suit property in the form of election card, gas connection, electricity and telephone bills all of which bear the address of the suit property as the address of the appellant. Per contra, it is contended by counsel for respondent that there is no infirmity in the judgement and decree passed by the learned trial court as the same is in accordance with law and that the appeal filed by the appellant is without any merit in the light of the fact that said Will is duly registered and has also been proved 40 beyond any reasonable doubt by the respondent. It is the case of the respondent that the suit property has been bequeathed to her by her deceased father late Sh. Sham Dass, who had executed a Will dated 20.02.1973 and the said Will was handed over to her at the time of her Kanyadaan. The counsel for respondent submits that in September, 1988 the appeflant) after his marriage, had requested the respondent to allow hrn to live in RFA 37512010. the suit property for a period of one year which was allowed by the respondent. it was only after one year when the respondent asked the appellant to vacate the suit property that the appellant started claiming himself to be the absolute owner of the suit property and started harassing and torturing the respondent and her daJghter. The counsel next submits that various criminal cases have also been registered against the appellant to this effect;
22. Refuting the contention of the counsel for appellant that the said Will dated 20.02.1973 is forged and fabricated since the testator was not in good health, the counsel for respondent vehemently argued that nothing has been placed on record by the appellant to show that the testator was not of sound mind or that the will was executed in suspicious circumstances. It is next contended by the counsel for respondent that the Will dated 20.02.1973 has been duly proved in the light of the statement of PW-3, Sh. RD Mhant who is the scribe of the Will as well as one of the two attesting wil:nesses.
RF[4] 375/2010 testator sign or affix his mark to the will or has seen some other person sign the will, in the presence, and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. Section 68 of the Evidence Act, 1872 further provides that if a document is required by law to be attested it shall not be used as an evidence until one attesting wifness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to the process of the court is capable of giving evidence. There is a proviso under Section 68 but we are not concerned with the proviso here. Commenting on these provisions, this Court in H. Venkätachala 7 laid down that Section 68 deals with the prOof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as an evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies 'on a document in a court of law;lt was further held that Section 63 of the Succession Act requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by.. two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. (See AIR p. 451, para 18.)"
27. A similar view has been expressed in Bharpur Singh V. Shamsher Singh reported in (2009)3 SCC 687 wherein the Apex Court elaborately discussed the law relating to proof and execution AIR 1959 Sc; 413 RFA 37512010 / of Wills with reference to its earlier decisions. The relevant portion of the judgment reads as under: "14. The legal principles in regard to proof of a will are no longer res integra. A will must be proved having regard to the provisions •contained in clause (c) of Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. In a case where the will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator. This Court in H. Venkatachala Iyengar v. B.N. Thimmajamma[2] opined that the fact that the propounder took interest in execution of the will is one of the factors which should be taken into consideration for determination of due execution of the will. lt..was also held that: (AIR p. 451, para
19) "One of the.important features which distinguishes a will from other documents is that the will speaks from the date of death of the testator, and so, when it is popounded or produced before a court, the testator who has aiready departed the world cannot say whether it is his will or 66 not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of. the departed testator. In H. Venkatachaia case, it was also held that the propounder of a will must prove:
(I) that the will was signed by the testator in a soUnd and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law,, courts woud be justified in making a finding in favour of propounder, and. if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be AIR 2.959 Sc 4413 RFA 3751202.0. ' removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein. It was moreover held: (H. Venkatachala case, AIR p. '452, para
20)
without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances; it would be a part of the initial onus to remove any such legitimate doubts in the matter."
17. This Court in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao held: (SCC pp. 447-48, paras 33-34) • "33. The burden of proof that the will has been validly executed and is a genuine document is on the • propounder. The propounder is also required to prove that the testator has signed the will and that he had (7006)] 3 SCC 433: (2006) 14 SCAt L 186 flEA 37512010 put his signature out of his own free 1l h ving a sound disposition of mind and understood e nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a • defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar
34. There are several circumstances which would have been held to be described (sic) by this Court as suspicious circumstances:
(I) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will; when the disposition appears to he unnatural or wholly unfair in the light of the relevant circumstances; • where propounder himself takes prominent part in the execution of will which confers on him substantal benefit. (See H. Venkatachala Iyengar v. B.N. Thimmajamma and T.K. Ghosh's Academy v. T.C. Pa/it[6].)"
19. The provisions of Section 90 of the Evidence Act, 1872 keeping in view the nature of proof required for proving a will have no application. A will must be proved in terms of the provisions of Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1.872. In the event the provisions thereof cannot be complied with, the other • provisions contained therein, namely, Sections 69 and 70 of the Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 of the Evidence Act postulates that execution must be proved by at least one of the attesting witnesses, if an attesting witness is alive and subject to the process of the (2002)2 5CC 85 (2005)2 5CC 78,[1] 09/'fl[2] SC ( 1 fOR )//l 5( 1'19 S C court and capable of giving evidence. (See B. Venkatamuni v. C.J. Ayodhya Ram Singh", SCC p. 458, para 19.)
20. This Court in An/I Kak v. Sharada Raje[8] opined that the court is required to adopt a rational approach and is fUrthermore required to satisfy its conscience as existence of suspicious circumstances plays an important role, holding: (SCC p. 714, paras 52-55) "52, Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the will annexed must also adduce evidence 1:0 the satisfaction of the court before it can be accepted as genuine. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order. It may be true that deprivation of a due share by (sic to) the natural heir by itself may not be held to be a suspicious circumstance but it is one of tha factors whih is taken into consideration by the courts before grant[ng probate of a will. Unlike other documents, even animus attetancfrLs a necessary ingredient for proving the attestation."
21. Unfortunately, the first appellate court as also the High Court did not advert to these aspects of the matter.
22. We may notice that in Jaswant Kaur v. Amrit Kaur[9] this Court pointed out that when the will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. An adversarial proceeding in such cases becomes a matter of court's conscience and propounder of the will has to remove all suspicious circumstances to satisfy that the will was duly executed by the testator wherefor cogent and convincing expIantion of Suspicious circumstances shrouding the making of will must: be offered.
23. Suspicious circumstances like the fol!owinQ may be found to be surrounded in the execution of the will:
(I) The signature of the testator, may be very shaky and douhtfulor not appear to be his usual signature. (2006)13 SCC '149 (2008)1 SCC 695 (1977)1 SCC 369 RFA 37512010 Page 15 &i 35 The condition of the testator's mind may be very feeble and debilitated at the relevant time. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural'heirs without any reasOn. The dispositions may not appear to be the result of the testator's free will and mind. The propounder takes a prominent part in the execution of the will. The testator used to sign blank papers. The will did not see the light of the day for long. Incorrect recitals of essential facts.
24. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of. the will had been duly proved or not. It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with."
28. Thus, to prove the execution of a Will, the propounder must bring in evidence at least one of the attesting witnesses to the said Will and must also remove all suspicious circumstances surrounding the execution of a Will. I have carefully perused the Will dated. 20.02.1973 exhibited Ex. PW-3/1. The testator late Sh. Sham Dass • has stated that he has six sons, namely Sh. Om Prakash, Sh. Hem Raj, Sh. Krishen Lal, Sh. Baldev Raj, Sh. Prem Prakash, Sh. Jai Gopal,and two daughters, namely Smt. Bagwanti and Kumari Laj Handa. Out of the six sons, four are married and well settled in their life and out of the two daughters; one is married whereas the respondent who is the younger daughter is unmarried. In the said Will, it has been categorically stated although Sh. Prem Prakash and the appellant, Sh. Jai Gopal are not married, but since the RFI[4] 37512010 Pagel6oI35 testator has spent much, even be.yond his capacity, for their welfare and settlement in life and both of them are well settled with the nucleus received from the testator, they are not in need any further assistance from the testator. The Will further states that the since, respondent, Smt. Laj Handa is unmarried and is in need of handsome assistance and also that son Hem Raj has also not received adequately in comparison to his other brothers and sister, it is only these who are the real liability and responsibility of the testator. Therefore, the testator has bequeathed the suit property exclusively in favour of the respondent and the tenancy rights in shop bearing no. 197, Lajpat Rai market, Delhi would be inherited by Sh. Baldev Raj exclusively. However, the said bequest is the condition that the respondent would pay a sum of Rs. 5000!- to Smt, Bhagwanti @ Srnt. Prem Mahindru and Sh. Baldev Raj woUld pay a sum of Rs. 5000/- on the marriage of Kurnari Ravi Prabha d/o Shri Keshav Das (sister's daughter of the executor's wife) who is residing with the testator since childhood.
29. The said Will has been signed by one Sh. PC Mahindru, who was the brother-in-law of respondent and the appellant, and Mr. RD Mahant as the attesting witnesses. The respondent, in order to prove the execution of the said Will, has examined PW-3, Sh. RD Mahant, who is the scribe of the Will as well as the attesting witness to the said Will. It would be useful to repduce the evidence of PW-3, Sh. RD Mahant, one of the attesting w sses to the Will: RFA 37512010 PageXJ f35 "I have seen the Will Mark-X. This Will was drafted by me on the instructions of Shri Sham Dass. Shri Sham Dass was my client. Shri Sham Dass had requested 2-3 days prior to the drafting of the Will, to draft this Will. On 20.2.73, Shri Sham Dass accompanied by another person, had come to my residence. The Will already drafted was available with me. I read over and explained the contents of the Will to the testator Shri Sham Dass and the person, who had come at my residence with Sham Dass. Shri Sham Dass admitted the contents of the Will to be correct and put his signatures and left thumb impression at points A, B and C. The person, who was accompanied Sham Dass signed as an attesting witness, at point-D.l signed as an attesting witness at point -E. I put my signatures at point-F as scribe of the V\Jill. Shri Sham Dass was in good health and sound disposing mind at the time of giving me instructions and then at the time of execution of the Will. The Will was made by Shri Sham Dass voluntarily. The Will is Ex.PW/3/1. Shri Sham Dass was having business in Lajpat Rai Market. I knew Shri Sham Dass since the year 1970." In his cross-examination by counsel for appellant, PW-3 deposed as under: "I had drafted the Will as a Lawyer. I do not now recollect the contents of the Will. I did not make any enquiry from the person accompanying the testator, if he was related to him or.. not. Shri Sham Dass had not stated to me that he wanted to - get this Wi registered. It is correct that Shri Sham Dass. could not read English. I had, therefore, explained the contents of the Will in Punjabi. After I • had explained the contents of the Will, he admitted the same and signed it. After the Will was executed, the Will was taken away by Shri Sham Dass. It is wrong to suggest that on 20.2.1973 Shri Sham Dass was bed-ridden. It is wrong to suggest that he was not in disposing state of mind to execute the Will. I never noticed Shri Sham Dass suffering from any ailment. It is wrong to suggest that Shri Sham [)ass had never come to my office. It is wrong to suggest that the Will was never executed in my office. It is wrong to suggest that I have deposed falsely." PW-3, Sh. RD Mahant has deposed in his examination-in-chief that the said Will dated 20.02.29173 was drafted by him on the j instructions of Late Sh. Sham Dass who had requested him to draft the said Will 2-3 days prior to the drafting of the Will. He further deposed that on 20.02.1973, late Sh. Sham Dass, accompanied by one another person, had come to his residence and the Will was already drafted by him. PW-3 read over and explained the contents of the said Will to the Late Sh. Sham Dass and the person who accompanied him. After admitting the contents of the Will to be correct, the testator Sh. Sham Dass had put his signatures and left thumb impression at points A, B and C on the said Will and the person accompanying him signed as an attesting witness at point
30. Since the other attesting witness Sh. P C Mahindroo had passed away before tendering his statement in the court, the respondent has brought in the witness box PW-1, Smt. Prem Mahindroo, who is the wife of Sh. PC Mahindroo and also real sister of both the parties to the appeal. In her evidence by way of affidavit, PW-1 has stated that she stayed in the suit property upto April, 1985 and thereafter vacated the suit property at the request of the respondent since the said property was willed in favour of the respondent by her father who 'expired on 18.01.1978. It is further stated by PW-1 that the last Will and testament of her father, late Sh. Sham Dass came to her knowledge after the death of the testator and the said Will was handed over to the respondent at the time of her marriage in Kanydaan on 11.10.1978 since the Will was in her favour. PVV-1 has fLirther categorically stated in her affidavit by way of evidence that the appellant had never resided in the suit property during her stay in the suit prOperty and that the suit property belongs to the respondent and neither she nor any of her brothers, including the is appellant, have any claim in the said property. In her cross examination by counsel for appellant, PW-1 deposed that the Will dated 20.02.1973 came to her knowledge after the death of the testator. It was when she was checking the papers of her deceased father that she found an envelope bearing the name of the respondent. The envelope contained the Will dated 20.02.1973 and that the execution of said Will was not disclosed by the tCstator RFA 37512010. Page 20 ui. S during his lifetime. PW-1 further deposed that she disclosed the said Will to all the relations at the time if marriage of the respondent and handed over the said Will to the respondent in her Kanyadaan. Narrating the contents of the Will, PW-1 stated that as per the Will, the suit property belonged to the testator during his lifetime and after his death, it would belong to the respondent. PW - 1 further stated in her cross-examination by counsel for appellant: that late Sh. Sham Dass had gi\/en some share to all of his legal heirs; House No. L-58A was given to brother Om Prakash, L-58B was given to brother Hem Raj, L-59B was given to respondent as she was unmarried, the sale proceeds of L-59A were distributed between brothers, Krishen Lal and appellant Jai Bhagwan and a shop was given to brother BR Wadhwa. Some cash was also given to brother Prem who left for USA. She has categorically deposed that the appellant is in possession of only one room in the suit property.
31. It would be relevant to reproduce the evidence of some of the material witnesses. PW-1, Smt. Prem Mahindru, sister of the parties has deposed as under: "That I had stayed in the aforesaid house of my father upto April, 1985. I had left the said house of my father at the
7. request of plaintiff as the said house had been willed in favour of plaintiff by my father. My father had expired on 18.01.1978. I continued to stay in the said house after the expiry of my father. After the death of my father, his last Will & Testament came to our knowledge and the present Will dated 20.2.1973 was handed over to the plaintiff at the time of her marriage (Kanyadan) on 11.10.1978 as the same was in her favour. f1\ That I say that during my stay in the aforesaid house the defendant never resided in the said property No.L-59-B, Malviya Nagar, New Delhi. The said property belongs to the plaintiff as per the wishes of my father and I have no claim in the said house nor any of my brother have any share in the said house including the defendant."
32. In her cross-examination by counsel for appellant, PW-1, Smt. Prem Mahindru deposed as under: "My father owned four houses and a shop, which are 58A & 5813, Malviya Nagar, and 59A & 5913, Malviya Nagar. The shop is in Lajpat Rai Market and its number is probabaly 197. The plaintiff was married on 11.10.78. The Will dated 20.02.73 came to my knowledge after the death of my father. When I was checking the papers of my father after his death I found. an envelope bearing the name of the plaintiff. I opened that envelope and found the Will dated 20.2.73. At that time the - plaintiff was also present. My father has not disclosed about the execution of this Will to me during his life time. When I had opened the box of my father I myself, and my sister the plaintiff, were only present. The plaintiff was married after the death of my father. Laj Handa was marred after discovery of the Will. I disclosed about the Will dtd. 20.2.73to all the relations at the time of marriage of the plaintiff and I also handed over the Will to the plaintiff at that time of Kanyadaan. The Will was registered after it was discovered. The Will was not registered till the marriage of the plaintiff. I am aware of the contents of the Will. As per the Will, house no.L-59B, Malviya Nagar, would belong to the testãtor during his life time and after his death it was bequeathed to the plaintiff. These are the only contents of the Will. I cannot tell the date of registration of the Will. Question: Who are the attesting witnesses to the Will Ex.PW3I1? Answer: All the brothers and sisters are the attesting to the Will Ex.PW3/1. it is correct to say that my late father had given some or the other property to every one of his legal heirs. House L58A was given to brother Gm Prakash, L--5813 was given to Hem Raj Verma, 59B was given to the pltf. as she was unmarried. Out of the sale proceeds of house no.59A some amount was given to my brother Krishan lal and some amount was given RFA 37512010 Paqe 22 of 35 to Jai Bhagwan. As far as I recollect the total sale consideration was Rs.33,000/- and Rs.17,000/- was given to Kishan Lal and Rs.16,000/- was given to deft. A shop was given to our brother B.R.wadhwa by our father. Some cash was given to our brother Prern by our father. it is wrong that I have not stayed in the suit property from 1974 to
1985. The deft was not residing in the suit property from 1971 to 1988. One nandani was tenant in the suit property from 1985 to 1988. The deft is in possession of only one room out of the suit property. The plaintiff is in possession since 1987" The respondent herself has deposed as PW-10. In her affidavit by way of evidence, PW-10, Smt. Laj Handa, has reiterated the contents of the plaint. In her cross-examination by counsel for appellant, PW-10, Smt Laj Handa deposed as under: • "My father has two properties vis: 197, Lajpat Rai Market, Delhi and second property is the suit property i.e. [-58, [-59, Malviya Nagar, New Delhi. My father was owner of the aforementioned properties. I am not awarewhether my father was occupying and using property, other than the properties aforementioned. It is correct that Will (Ex.PW-3/1)is of the year 1973. it is correct that property No.L-58 Malviya Nagar and property No.L-59, Malviya Nagar are two different property, each having area of 200 sq. yards. It is correct that as on today these properties have been divisioned and also known by L- 58A, L-5813, L-59A and L-5913, each having 100 sq. yards area. It is correct that the properties are known by such names/numbers i.e. L-58A, L-58B, L-59A and L-59B from the lifetime of my father; as such numbers were assigned during his lifetime. L58A is in the possession of Shri Om Prakash Wadhwa. It is correct that property known by number L-58A was given to Shri Om Prakash Wadhwa by my father. It is correct that L-58B was given to Shri Hem Raj by my father, as his share in the prbperty. It is correct that property No.L-59A was disposed off by my father. Q: What was given to the other two brothers and two sisters by your.father, as their share in the property? A:Shri Baldev Raj Wadhwa used to do business with father at • • Lajpat Rai Market, shop was given to him as his share. Shri 7' Prem Prakash Wadhwa was going aboard, he was given cash as his share, cash amount is not known to me. I was given property No.L-59B, Malviya Nagar, Delhi in the form of Will that the property will come to me after demise of my father, it was given to me as Kanyadan in my marriage. A flat measuring 50 sq. yards known by number 151, Gali No.], Janta Flat, Madangir was given to Smt. Prem Mehendru, was given by me to her on the request of my father. It is correct that I have my own house in Dehradun i.e. House No.244, Doon Vihar, Dehradun. At the time of my marriage the Will dated 20.02.1973 was handed over to me as Kanyadan by my elder sister named Prern Mahindru. The marriage ceremony was attended by my all brothers and sisters. It is correct that the above mentioned Will was unregistered at the time of its handing over to me. Jai.Gopál is residing in the suit property since 04.9.1988. It is incorrect S to suggest that the Will in question was not in the knowledge of family members at the time of my marriage. Since 1988 Jái Gopal is in continuous possession of the portion marked as red in Ex.PW10I[1]. It is incorrect to suggest that the entire portion except one room of the suit property is in possession of jai Gopal. The Will has been executed on 20.02.197 3. My father died on 18.01.78. Before the death of my father I was not aware of the Will. It is wrong to suggest that my father was ill before his death. It is wrong to suggest that the mutation was not done on the basis of Will. It is wrong to suggest that the mutation of the property was done in favour of plaintiff (Ms. Laj Handa) on the basis of her possession of her property. I came to know about the will at the time of marriage in the year 1978. It is correct that my brother Baldev Raj is also the beneficiary of this will." S I
35. PW-11, Sh. BR Wadhwa, brother of the parties, stated in his affidavit by way of evidence as under:
2. "That I say that my sister Smt. Laj Handa is the exclusiye owner of property bearing No.L59 B, Malviya Nagar, New Delhi. The said property was bequeathed to Laj Handa by our late father Sri Sham Dass under a Will executed by him on 20.02.1973 and the same is Ex.PW11/1. This property was self acquired by my late father. My father expired on 18.011978. The said Will came o my knowledge after the death of my father and more particularly before the marriage of my sister Srnt. Laj Handa. RFA 37512010 Page 24 c35 That I say that my brother Shri Jai Gopal was not residing in the aforesaid property prior to the year 1988. He was permitted to reside in the said property bymy sister Smt. Laj Handa in the year 1988 for one year only after the marriage of Shri Jai Gopal. That my sister Smt. Laj Handa has been in possession of house No.L-59 B, Malviya Nagar, New Delhi since 1952 along with other members of the family and singly after the death of our father with document like MTNL Phone No.6446625. That Shri jai Gopal Wadhwa had been residing in Màdangir since the year 1973 till 1988. I have also not issued any NOC as well as rent receipt to Jai Gopal. In fact, he had fabricated the NOC and rent receipts for which I along with my sister Laj Handa have filed a complaint with P.S. Hauz Khas." In his cross-examination by counsel for appellant, PW-11 deposed as under "It is incorrect that Will of my father was registered after his death. The Will was registered after all the brothers and sisters consented to the same. No documents in this regard have been filed at the time ot registration before sub-registrar. Sh. Jai Gopal had been residing in Madangiri, Delhi from 1973 to 1.988 and had both commercial and residential property in his possession. Three to five khokhas on the respective plots were constructed by jai Gopal. Jai Gopal had a residential property G087, Madangiri, Dakshin Pun, where he used to live and had also constructed a store according to his statement before SEM." It is also relevant to reproduce the statement of appellant Sh. jai Gopai who deposed as PW-3 in Suit no. 396/2004 titled as "jal Gopal v. Laj Handa". In his examination-in-chief, Sh. jai Gopal stated as under: "I am residing in property L-59B, Malviya Nagar, New Delhi since the year 1953. The property No.L-59B measured 100 sq. yards. It is only residential purposes. I have also opened a shop therein.. There was an oral partition of the property in the year 1973 when my father was bed-ridden on account of illness. At the time of partition, in 1973 Bhagwanti and Kirhsn LaI had already been given compensation by payments of money out of the sale proceeds of house No.L-59A. Then said, Bhagwati was given a fIat No.7/151, Madangir out of the sale proceeds, whereas Kishan Lal was paid cash. Shop at Lajpat Rai Market was given to Baldev Raj and Prem Prakash. Om Prakash was given a house measuring 100 sq. yards, r bearing No.L-58-A, whereas Hem Raj was given House NO.L- 58-13. A sum of Rs.[1] or 1.[5] lacs were paid to defendant No.1 (sic. respondent herein) out of which she built up a house at Dehradun. I was given house No.L-59/13. I am residing in this house since the time of the partition from 1973. I amrUnning a shop for the last about 35 years. 1 The defendant No.1 started putting up in Dehradun after her marriage. She came to Delhi in the year, 1988. On request of defendant No.1, I gave her One room on the front side of the house. The said room has been shown red in the site plan of the property L-59/13, Ex.PW3/1. Initially the room was given for the residence of daughter of defendant No,1.Subsequently, defendant No.1 also started residing there and brought her luggage. I had not permitted defendant no.1 to stay in the room of the suit premises. I do not know as where from defendant no.1 has brought the Will and wanted to get the house mutated in her name on the S basis of said Will. I came to know of the existence of the Will propounded by the.defendant No.1, in the year 1998 when I received a notice from the MCD for giving my no objection to the mutation. I talked to my other brothers and sisters. They showed ignorance of the Will propounded by defendant No.1.[1] am not very much aware of the contents of the Will propounded by defendant No.1. There is mention of one Baldev Raj in the said Will. The defendant no.1 had shown me the Will which was executed in the year 1973. It was not a registered Will. I have seen the Will Ex.PW3/1 in the Civil Suit Laj Handa v. Jai Gopal. Ex.PW3/1 is not the said Will. I do not know if defendant No.1 has filed in the court registered Will."
38. In his cross-examination by counsel for respondent, Sh. Jai Gopal, the appellant herein deposed as under: "It is cOrrect that the suit property was allotted to my father in the year 1953 as a refugee from Pakistan. I am not aware if in the year 1969 the rehabilitation department of Government of India had executed a lease deed in favour of my father in respect of the suit property including the other portiOns of L-59A. I can neither admit nor deny if Mark-Z[1] is the certified copy of the said lease deed. It is correct that the amount of lease money was paid by my father out of his personal earnings. My father must be the exclusive owner of • property no.L-59. None else was the owner of this property along with my father. My father expired in the year 1978. Laj Handa got married in the year 1978 or 1979. I was residing in the suit property after the marriage of l. j Handa. I cannot produce any document to show that I wa residing in RFi375/2O1O Page26 of 35 the suit property before marriage of Laj Handa or after the marriage of La.j Handa or any time till the year 1988. It is wrong to suggest that no oral partition had taken place in the year 1973. I was operating the said shop in property No.L-5913, Malviya Nagar, New Delhi for the last about 35 years. I was operating • this shop in the front portion of property L-5913, Malvya Nagar, New Delhi. There was a room got constructed at the place, about 35 years back where the shop was in operation. It is correct that the said portion/ shop was demolished by MCD being illegal structure. ) it is correct that on 22.03.1999 I had received a letter from MCD asking me furnish documents of ownership in respect of the suit property within three days failing which the suit property would be mutated in the name of Smt. Laj Handa. It is correct that on 25.03.1999 I had written a letter to MCD,. asking them not to mutate the property in the name of Smt.LajHanda as I have obtained stay from the Court The document Ex.PW-3/D-4 was written by me to the MCD. I had written the letter Ex.PW-3/D[4] after I had obtained the stay from Court. It is wrong to suggest that I had written a false letter to MCD on 25.03.1999 as the suit was filed on 30.03.1999. It is incorrect to suggest that at the time of marriage of Smt. Laj Handa in 1978 my elder sister Smt. Bhagwanti. (sic. Prem Mahindru) had disclosed about the same to all the family members and it was then when I first came to know of the Will. It is wrong to suggest that as per the said Will the shop in Lajpat Rai Market was to be taken over by Sh.Baldev Raj and property No.L-59-13 was to go in favour of Smt. Laj Handa. Vol. No sLich Will exists. It is correct that I had carried out some illegal construction at the back of house i.e. Suit property which has been demolished by the MCD. The room in the front side, as stated by me earlier in my statement was demolished after some time of the demolition on the backside. The 'Malba' of the illegal construction which was demolished by the MCD has been removed."
39. The version of the responden.t is further supported by the evidence of PW-11, Sh. BR Wadhwa, who is also the real brother of the appellant and the respondent. PW-11 has stated in his affidavit by way of evidence that the respondent, Smt. Laj Handa (respondent) is the exclusive owner of the suit property as the said property was bequeathed to her by their father late Sh. Sham Dass under a Will executed by him on 20.02.1973. It is stated that the Will came to their knowledge after the death of the father and more particularly before the marriage of the respondent. It is further stated in his affidavit that the appellant was permitted to reside in the suit ) property by the respondent in the year 1988 for one year only after the marriage of the appellant and that the respondent has been in possession of the suit property since 1952 along with other family members and singly since the death of the father. In his crossexamination by counsel for appellant, PW-11 reiterated that the Will dated 20.02.1978 was registered after the death of the testator after all the brothers and sisters consented to the same. He further deposed that the appellant had been residing in Madangiri, Delhi from 1973 to 1988 and had both commercial and residential property in his possession. To further prove the registration of the said Will, the respondent has summoned Mr. J. Narain, UDC, Office of Sub-Registrar-I, Kashmere Gate, with the summoned record, i.e., the Will dated 20.02.1973 of Shri Sham Dass. PW-1, Mr. j. Narain, from the office of Sub-Registrar deposed in his examination in chief as under: "I have brought the summoned record i.e., the will.dated 20.2.1973 of Shri Shyam Das registered with Sub registrar office bearing registration no.4594 addl. Book no[3], vol. no.585, pages 183 to 185 registered on 25.3.88. Photocopy on record Ex.PW1/A is the true copy of the registered will in our record. I cannot tell when this will was presented for registration as I have joined the deptt on July 2003." In his cross-examination by counsel for appellant, PW-1, deposed as under: "From the record brought by me today I cannot say as to when the Will was presented for registration. I can simply say that this Will was registered on 25.3.88."
42. Contending that the Will dated 20.02.1973 has been executed under suspicious circumstances,.the counel for appellant has strongly urged before this court that the Will dated 20.02.1973 has been registered after a lapse of ten years and the respondent has failed to explain the cause of such a long delay. Admittedly, the Will dated 20.02.1973 was registered in the year 1988 after a long lapse of ten years. PW-10, Smt. Laj Handa who is the respondent in the present appeal, has stated in her evidence that she applied for the registration of the Will dated 20.02.1973 on 12.10.1979 but before the Will could be registered, the officials of the office of Submarried in Dehradun, she could not pursue the matter with the office of Sub-Registrar and it was in the year 1988 that PV\I-10 pursued the matter with office of the Sub-Registrar and the Will was found thereafter. The counsel for appellant contends that the respondent has failed to bring on record any document in furtherance of her averment that the Will was misplaced by the officials of the Sub-registrar and further states that why no steps were taken by the respondent to locate the said Wil!. The aforesaid argument of the counsel for appellant is without any merit since the Will stands duty registered and even otherwise a Will is not a compulsory registered document and nothing material turns on this sub m iss ion. The next limb of the arguments of counsel forappellant is that: the testator late Sh. Sham Dass was not in sound disposing stat of mind at the time of the execution of the alleged Will. He contends that in 1973, the testator was suffering from ill-health and was ridden. However, no evidence has been led by the appellant to show that the medical condition of the testator was such that he was not in a position to execute the Will and the medical reports have also not been placed on record or procured by the appellant in order to substantiate the aforesaid contention. The counsel for appellant has further sought to contend that the ) suit property is an ancestral property and thus, it cannot be bequeathed in favour of the respondent by execution of any Will whereas the counsel for respondent contends that the suit property is the self acquired property of the testator late Sh. Sham Dass. The appellant contends that the suit property was allotted to his father late Sh. Shcarn Dass in the year 1953 as a refugee from Pakistan in lieu of the ancestral properties left by him in Pakistan. I do not find any merit in the aforementioned contention of the counsel for appellant in the light of the fact that while one hand, the appeUant has denied any knowledge of the fact that a lease deed in respect RFA. 375/2010 of the suit property was executed by the rehabilitation department of Government of India in favour of late Sh. Sham Dass whereas on the other hand, the appellant himself has deposed in his crossexamination before the trial court that the lease money for the suit property was paid by the father Late Sh. Sham Dass out of, his personal earnings. He has further deposed that late Sh; Sham Dass was the exclusive owner of the suit property and no one else was the owner along with his father. Further, the respondent has also placed on rccord the lease deed in respect of the suit property which is duly exhibited as Ex. PW-3/2. PW-1, Smt. Prem Mahindru, in her cross-examination by counsel for appellant, has categorically negated the suggestion that the suit property was purchased Dy late Sh. Sham Dass out of the sale proceeds of ancestral properties left in Pakistan. Accordingly, the aforesaid contention of the counsel for appellant is without any merit. - The counsel for appellant has not denied the signatures or the thumb impression of.late Sli. Sham Dass nor has he made any 4D, request to the trial court or to this Court to compare the signatues or the handwriting of the attesting witnesses or the testator. I find that the appellant filed suit being Suit no. 17/2000 for declaration that the Will dated 20.02.1973 is forged and fabricated and further sought permanent injunction against the respondent and her daughter restraining her from dispossessing the appellant from the suit property but the said suit was dismissed in default: for non-appearance of the appellant on 04.02.1999. Subsequently another suit being Suit No. 52/1999. was filed by the appellant seeking the same relief which was also dismissed in default for nonappearance of the appellant on 26.02.1999.
47. Even Otherwise, the counsel for respondent has contended that the issue that whether the Will dated 20.02.1973 is forged nd fabricated has already been decided in favour of the respondent vide judgement and decree dated 17.03.2010 in another suit CS •. No. 95/09/99 titled "Sh. Jai Gopal Wadhwa v. Smt. Laj Handa and Others" and since the said judgement has not been challenged by the appellant, it has attained finality. The appellant thus, cannot now in subsequent proceedings dispute the authenticity of the said Will. A perusal of the judgement dated 17.03.2010 passed by the Additional District Judge makes it clear that the trial court while pronouncing the said judgment has dealt with the genuineness of the execution of the Will dated 20.02.1973. Issue no. 1 was framed as 'Whether the Will dated 20.02.1973 of late Sh. Sham Da.s is a forged and fabricated documents. If so, its effects?." After considering the evidence led by both the parties, the.learned trIal court decided the said issue in favour of the respondent herein thereby holding that the said Wi is a genuine document; Accordingy, I find force in. the contention of the counsel for, respondent that the appellant cannot challenge the authenticity of the Will in another subsequent proceeding. RFII 375/2010 Pagt 32 of 35 Ak
48. PW-iJ, Sh. Baldev Raj has also deposed that the Will dated 20.02.1973 has also been accepted as a valid Will in Suit NO. 377/1999 titled as "Sh. Baldev Raj Wadhwa V. Union of India" filed by PW-11 seeking declaration and mandatory injunction against the Union of India who continued to issue rent receipts in respect of shop no. 197, Lajpat Rai market in the name of Late Sh. Sham Dass. A, copy of the judgment dated 11.08.2008 passed in the aforementioned suit is exhibited as Ex. PW-1112 wherein accepting the Will dated 20.02.1973, the trial court passed a decree declaring Baldev Raj as the lesee of the said shop and directed the Union of India to execute all necessary documents for transfer of the tenancy rights in favour of Sh. Baldev Raj. 49; PW-6, Sh, Kauhal Kumar, LDC, Legal Cell, House Tax Departme:nt, New Delhi has brought the summoned records before the trial court. A perusal of the summoned record exhibited as Ex. PW6/1 (Golly) makes it evident that the respondent Laj Handa had applied for the mutation of the suit property in her name to the MCD on S 15.10.1998 and submitted a registered copy of the Will dated 20.02.1973; death certificate of late Sh. Sham Dass and also No Objection Certificates from six out of eight legal heirs. I have perused the letter dated 25.03.1999 exhibited as EX. PW-3/D[4] wHtten by the appellant to the MCD office thereby stating that the appellant has approached the competent court seeking a stay order, aqainst the said Wiil. The counsel for respondent contends that the RI-A 37512010
46) appellant was successful in obtaining a stay order from the court on the basis of a license obtained by the appellant from the MCD in respect of his shop. However, the said license was forged and was cancelled subsequently. This fact is corroborated by the judgement dated 08.06.2009 and order of sentence dated 12.06.2009 wherein the appellant was convicted under section 420/468/471 IPC 'for / forging documents in order to obtain a trade license from the MCD for running his shop in the name of Laxmi Electric Works at the suit I property. An appeal was filed against the conviction of the appellant which was dismissed vide judgement dated 27.10.2009. further, PW-.4, Mr. Rajbir Singh Chauhan, Record Clerk, MCD has deposed in his examination-in-chief that the license issued to the appellant was only an ad hoc license which was subsequently cancelled vide order dated 12.01.2000. - 50. It is next contended by counsel for appellant that the appellant has been in possession of the suit property since birth. In order to substantiate its arguments, the appellant has placed on record documents pertaining to gas and electricity connections at the suit property, election card, ration card, [IC Poiicy, and the like, all of which bear the address of the appellant as L-5913, Malviya Nagar. The counsel for appellant has examined DW-4, Sh. Ashok Kurnar Sharma, (JDC from the Electoral office, Malviya Nagar; DW-5, Sh. BN Dua, Inspector, Food and Civil Supply Department, Circle 43) Sheikh Sarai and DW-7, Sh. Karam Chand, Officer from BSES, Saket, RFA 37512010 Page 34 of.[5] Delhi to prove his possession of the suit property. As far as the aforementioned contention is concerned, I concur with the view of the trial court that the possession of the suit property by the appellant is no relevance since the Will dated 20.021973 has been duly proved and as per the said Will, the suit property has been bequeathed in favour the respondent. Accordingly, the appeHant cannot assert his right to stay in the suit property. It is pertinent to mention that in order to substantiate his claim; the. counsel for appellant has examined DW-3, Sh. Naresh Wadhwa sb late Sh. Hem Raj Wadhwa and DW[6], Sh. Dilip Wadhwa sb Late Sh. OP Wadhwa. A perusal of the statements of the DW-3 and DW-6 would reveal that nothing material has been brought forth from their statements. Thus, in view of the observations made above, I do not find any infirmity in the judgement and decree dated 17.03.2010 passed bi the learned trial court. Accordingly, the appeal is dismissed. •. jiy 15, 2011 'ssn/msr' R F A i2(i /