Ashok Bhatia v. State of NCT of Delhi & Ors.

5. Thereafter, Shri Tilak Raj Bhatia executed another registered Will dated 18.12.2007, wherein he stated that ―whereas the Testator is the owner and in possession of the built up Flat No. 61 & 61A, Block No. 8 situated at Moti Nagar, New Delhi-15, with the lease hold rights of the land under the said property having by virtue of Lease and Conveyance Deed duly regd. No. 8853, in Addl. Book No. I, Volume No. 1928, at pages 63 to 66 dated 18.11.1968 in the Sub-Registrar, Sub-Distt. No. I, Delhi‖. He further stated that ―he is making said Will with his free will, without any pressure and with his sound and disposing mind………till he is alive, he shall remain the absolute owner of the suit property and after his demise, the same shall be bequeathed to the Executor (―in favour of my son Sh. Ashok Bhatia, son of Shri Tilak Raj Bhatia, R/o. 8/61, Moti Nagar, New Delhi-15‖). He also made clear that ―other legal heirs of the said Testator shall have no rights to interfere in this Will……. This is my last and final Will regarding the said property and I have executed this will without any pressure of any person/s‖.

6. It is asserted that during the life time of Late Shri Tilak Raj Bhatia, the respondent No. 3/Satish Bhatia had threatened the petitioner and his family to evict them from the suit property. Hence, the wife and the two sons of the petitioner were forced to file a Civil Suit bearing number CS (OS) 528/2009 for Declaration and Permanent Injunction in this Court against Late Shri Tilak Raj Bhatia and Mr. Ashok Bhatia. Late Shri Tilak Raj Bhatia filed his affidavit before the Hon’ble Single Judge categorically stating that he was the exclusive owner and had bequeathed the suit property by virtue of the two registered Wills dated 02.09.2005 and 18.12.2007. Not only this, he appeared in person before the Hon’ble Judge of this court during the proceedings and made his statement on oath, wherein he affirmed the contents of his Affidavit dated 04.12.2009 and deposed that he was the exclusive owner of the suit property and was in its possession along with his son Mr. Ashok Bhatia and his family. The learned Single Judge in Order dated 22.01.2010 observed that the Court had considered the demeanor of Sh. Tilak Raj Bhatia and was satisfied that he was in full possession of his senses and also capable of understanding whatever was asked. He supported the contents of the affidavit mentioning about the two Wills dated 02.09.2005 and 18.12.2007 in respect of the suit property of which he claimed himself to be the exclusive owner.

7. The petitioner has submitted that neither the ownership of the suit property is in dispute nor is it under challenge that he along with his family and father, Shri Tilak Raj Bhatia had been residing in the suit property. Furthermore, two Wills dated 02.09.2005 and 18.12.2007 had been executed by Late Shri Tilak Raj Bhatia in sound mind and are not disputed on record.

8. After the demise of Late Shri Tilak Raj Bhatia on 06.05.2010, the petitioner who has been named as the Executor/beneficiary of the registered Wills, has acquired absolute title in the suit property. Hence, the present petition has been filed for grant of Probate/Letter of Administration in favour of the petitioner in respect of the two Wills.

9. The petition is contested only by respondent No. 3/Satish Bhatia who in his Written Statement/Objections has taken the preliminary objections that the present petition is not maintainable as the requisites of Order VI (4) of the amended CPC have not been fulfilled. The plaint has not been filed in duplicate along with the original documents and the requisite affidavit. The Plaint has also not been verified, signed and instituted properly in accordance with the provisions of law and consequently, the Plaint is liable to be rejected outrightly.

10. Further objection is taken that the basic ingredients of a Will are not satisfied as only the self-acquired property can be the subject matter of a valid Will. The respondent No. 3 has claimed that prior to partition of the Country in 1947, Late Shri Tilak Raj Bhatia and his father, namely, Shri Bhagat Ram Bhatia were the residents of District Sargodha, West Pakistan. Late Shri Bhagat Ram Bhatia, the grandfather of the parties, was a money-lender by profession and had various landed properties in Sargodha, West Pakistan and was possessed of sufficient means. After the partition of the country, Late Shri Tilak Raj Bhatia shifted to Delhi along his wife and children. He preferred a refugee Claim with the Settlement Commissioner which was awarded to him by the Regional Settlement Commissioner and as per Displaced Persons (Compensation and Rehabilitation) Act, 1954 in lieu of the properties that were left in Sargodha, West Pakistan. In addition, the Land and Development Office, Ministry of Rehabilitation as per the Policy of the Government of India to rehabilitate the displaced persons/migrants from Pakistan, allotted the suit property comprising of ground floor and first floor for a total consideration of ₹6,602.20/- which was paid by Late Shri Tilak Raj Bhatia from the compensation amount so received.

11. Late Shri Tilak Raj Bhatia after partition of the country, started working under the name and style of Bhatia Cloth House from the common funds available to him pursuant to the compensation amount received, though it is not the subject matter of the petition.

12. The Claims that were preferred by Late Shri Tilak Raj Bhatia included not only the properties owned and possessed by him, but also the properties held and possessed by his father Late Shri Bhagat Ram Bhatia that were left in Sargodha, West Pakistan. By pooling the compensation received by Late Shri Tilak Raj Bhatia belonging to himself, his wife and father Late Shri Tilak Raj Bhatia made the payment of the amount for allotment of the suit property. In addition, valuable securities in the form of ancestral jewellery brought by him and his wife at the time of partition were also available which were sold by him to raise the claim amount. It is claimed that since Late Shri Tilak Raj Bhatia was not the exclusive owner of the suit property, no Will could have been executed by him.

13. The respondent No. 3 has further asserted that the present petition is an abuse of the process inasmuch as it is the counter-blast of the Civil Suit bearing number CS (OS) 889/2010 which was filed for the Partition of Joint Family Properties.

14. It is further asserted that so-called Will of Late Shri Tilak Raj Bhatia is on the face of it, rank concoction and fabrication even to the naked eye and cannot be given effect to even on the facts and circumstances of the case. Late Shri Tilak Raj Bhatia was staying with the petitioner and was continuously harassed by him, his wife and their son. Late Shri Tilak Raj Bhatia was deprived of basic needs like, food, medical assistance, etc. and he often complained about this misconduct of the petitioner and his family to the relatives who used to visit him. His relationship with the wife of the petitioner was so bad that she had filed a Suit against Late Shri Tilak Raj Bhatia, the father-in-law, when he was 94 years old.

15. So much so, the petitioner and his son used to beat Late Shri Tilak Raj Bhatia for not doing the deeds as per their whims and fancies. The conduct of the petitioner and his family towards Late Shri Tilak Raj Bhatia was so bad that a person of sound mind will not ever consider or contemplate execution of a Will which is much less such an unnatural Will or bequest. The intention to usurp the equal share of the members of the family despite knowing that the property had been purchased/allotted by the Ministry of Rehabilitation in lieu of the compensation awarded by the Settlement Commissioner in favour of Late Shri Tilak Raj Bhatia.

16. It is claimed that the petitioner got the documents executed by putting undue pressure and force on Late Shri Tilak Raj Bhatia, while he was confined to bed due to his old age and various ailments. Late Shri Tilak Raj Bhatia had no right, title and interest in the suit property and had not right to bequeath them to the petitioner and his family members.

17. It is further claimed that since Late Shri Tilak Raj Bhatia had an attachment with the properties, he preferred to stay in the family house despite bad behaviour of the petitioner and his family members. Mr. Subhash Bhatia (through his wife Ms. Promila Bhatia, who is one of the witness in the alleged Will and Mr. Vikas Bhatia) forcefully made and got signed the Will from him on the same date on which the Will for shop at Karol Bagh was allegedly executed which was given to Mr. Subhash Bhatia/ respondent no. 2.

18. It is submitted that these arrangements and connivance were designed to deprive respondent No. 3 from his valuable rights in the properties. Both the Will executed on 02.09.2005 and 18.12.2007 have been obtained fraudulently and are liable to be set aside.

19. On merits, the contents of the petitioner are denied and the objections taken in the preliminary objections are reaffirmed.

20. The petitioner in his Rejoinder controverted all the assertions made in the objections filed by the respondent No. 3/Satish Bhatia and reiterated his assertions made in the Plaint.

21. The issues were framed on 29.04.2013 which read as under: ―(1) Whether the deceased Sh. Tilak Raj Bhatia, father of the petitioner, was in a sound and disposing state of mind when he had executed the Will dated 18.12.2007? (OPP) (2) Whether the registered Will dated 18.12.2007 is a legal and valid document? (OPP) (3)Relief.‖

22. The petitioner in support of his case examined himself as PW-1/Ashok Bhatia and tendered his evidence by way of affidavit which is Ex.PW-1/X. The probate petition is Ex.PW-1/1, the original registered Will dated 02.09.2005 of Late Shri Tilak Raj Bhatia is Ex. PW-1/2, the last and final registered Will dated 18.12.2007 of Late Shri Tilak Raj Bhatia is Ex. PW-1/3, the Death Certificate of Late Shri Tilak Raj Bhatia is Ex. PW-1/4, the affidavit filed by Late Shri Tilak Raj Bhatia is Ex. PW-1/5, the statement of Late Shri Tilak Raj Bhatia made on 22.01.2010 is Ex. PW-1/6 and the copy of the Order dated 22.01.2010 is Ex. PW-1/7.

23. PW-2/Vaninder Singh, the attesting witness, tendered his evidence by way of affidavit which is Ex. PW-2/A and deposed that he was the attesting witness to the Will dated 18.12.2007/ Ex. PW-1/3 and identified his signatures at Point B and B[1] on the Will, while the Testator signed the Will at point A and A[1].

24. R3W[1] is the respondent No.3/Satish Bhatia who tendered his evidence by way of affidavit Ex. R3W1/A.

25. R3W[2] Mr. Atma Ram Sharma tendered his evidence by way of affidavit Ex.R3W2/A and deposed that the petitioner and his family members used to harass the Testator during the period when both the Wills got executed till the time of his death. The signatures on the Wills were got executed from Late Shri Tilak Raj Bhatia by putting undue pressure and by threatening and torturing him. He further deposed that Late Shri Tilak Raj Bhatia often used to complain in regard to the behaviour and misconduct of the petitioner and his family on various occasions.

26. Submissions heard. My issue-wise findings are as under. Issue Nos. 1 and 2 shall be decided together as they are interconnected. They are: ―(1) Whether the deceased Sh. Tilak Raj Bhatia, father of the petitioner, was in a sound and disposing state of mind when he had executed the Will dated 18.12.2007? (OPP) (2) Whether the registered Will dated 18.12.2007 is a legal and valid document? (OPP)‖

27. It is not in dispute that Late Shri Tilak Raj Bhatia was the registered owner of the suit property in whose favour the Conveyance Deed was duly registered on 18.11.1968.

28. The contesting respondent No. 3/Satish Bhatia has taken two fold objections; first is that the suit property was purchased from the settlement claims received by Sh. Tilak Raj in lieu of the properties left in Pakistan at the time of partition and he was not the exclusive owner; and second is that petitioner had forcibly obtained the signatures of Sh Tilak Raj on the two Wills.

I. Late Sh. Tilak Raj was not the exclusive owner:

29. The first objection taken by respondent no.3 is that prior to partition of the country in 1947, Late Shri Tilak Raj Bhatia and his father, namely, Late Shri Bhagat Ram Bhatia were the residents of District Sargodha, West Pakistan. After the partition of the country, Late Shri Tilak Raj Bhatia shifted to Delhi along his wife and children. He preferred a refugee claim with the Settlement Commissioner and was awarded compensation in lieu of the properties that were left in Sargodha, West Pakistan. In addition, the Land and Development Office, Ministry of Rehabilitation allotted the suit property comprising ground floor and first floor for a total consideration of ₹6,602.20/- which was paid by Late Shri Tilak Raj Bhatia from the compensation amount received. Essentially the claim is that the sale consideration was paid out of the compensation received in lieu of the properties left in Pakistan. Late Shri Tilak Raj Bhatia was not the exclusive owner of the suit property, and no Will could have been executed by him.

30. However, it is not under challenge that the Conveyance Deed had been executed in favour of the petitioner in the year 1968 and since then the same has not been challenged by any of the family members of Late Shri Tilak Raj Bhatia. Moreover, side from the bald assertions that the payment of sale consideration was from compensation amount, no evidence whatsoever has been led by respondent no. 3. This fact assumes significance as the respondent himself has stated that after coming to India Late Shri Tilak Raj Bhatia started the business under the name and style of Bhatia Cloth House from the common funds available to him pursuant to the compensation amount received. The suit property has been purchased in 1968 while they migrated in 1947. In the absence of any cogent evidence, Sh. Tilak Raj has been shown to be the sole owner of the suit property by virtue of the Conveyance Deed in his name.

31. In this regard, a reference may also be made to the decision in Gopala Menon vs. Sivaraman Nair & Ors. (1981) 3 SCC 586, wherein it has been held as under: ―6...........The absolute and unrestricted power to dispose of property is a necessary incident of an absolute estate. It is implicit, when an absolute estate is conferred, that the grantee is free to deal with and dispose of the property in any manner. Indeed, if an absolute grant is burdened with a restraint on alienation, the grant is good and the condition void.‖

32. Shri Tilak Raj Bhatia being the exclusive owner was therefore, competent to execute the Will.

II. The signatures on the Will were obtained by coercion and undue pressure:

33. Section 63(c) of the Indian Succession Act, 1925 provides the mode of execution of Will which reads as follows: ―63. Execution of unprivileged wills.––Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed (2013) 7 SCC 490 or engaged, or a mariner at sea, shall execute his will according to the following rules–– (a)-(b) * * *

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or 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.‖

34. As per the mandate of clause (c) of Section 63, a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary.

35. In Jagdish Chand Sharma v. Narain Singh Saini (Dead) Through LRs. and Others (1995) 4 SCC 459, the Apex Court referring to Section 63 of the Indian Succession Act, 1925 had illustrated that the provisions contemplate that in order to validly execute the Will, the testator would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testator or signature of the person signing for him has to be so placed that it was intended to give effect to the writing as a Will. Section 63 of the Indian Succession Act, 1925 mandates that the Will should be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other person sign it in the presence and on the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person and each of the witnesses has signed the Will in the presence of the testator, though it is not necessary that more than one witness be present at the same time and that no particular form of attestation is necessary. The execution and attestation of the Will are mandatory in nature and any failure and deficiency in adhering to the essential requirements would result in invalidation of the instrument of disposition of the property.

36. The need and necessity for stringent requirements of clause (c) to Section 63 of the Indian Succession Act, 1925 has been elucidated and explained in H. Venkatachala Iyengar v. B.N. Thimmajamma and Others. AIR 1959 SC 443. The Apex Court explained the statutory and mandatory requisites for validating the execution of the Will, and emphasized that the Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision whether the Will propounded is proved to be the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will, is required to prove by satisfactory evidence that:

(i) the Will was signed by the testator;

(ii) the testator at the time was in a sound and disposing state of mind;

(iii) the testator understood the nature and effect of the dispositions; and

(iv) that the testator had put his signature on the document of his own free will.

37. Ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. At the same time, the Apex Court observed that it is necessary to remove suspicious circumstances surrounding the execution of the Will and therefore, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence to this effect.

38. In Surendra Pal and Others. v. Dr. (Mrs.) Saraswati Arora and Another (1974) 2 SCC 600, the Supreme Court had observed that the propounder should demonstrate that the Will was signed by the testator and at the relevant time, the testator was in a sound and disposing state of mind and had understood the nature and effect of the dispositions, that he had put his signature on the testimony of his own free will and at least two witnesses have attested the Will in his presence. The nature and quality of proof must commensurate with such essentiality so as to remove any suspicion which a reasonable or prudent man may, in the prevailing circumstances, entertain. Where coercion and fraud are alleged by an objector, the onus is on him to prove the same and on his failure, probate of the Will must necessarily be granted when it is established that the testator had full testamentary capacity and had in fact executed the Will with a free will and mind. (b) Manner of Proof of Wills

39. It would be of assistance to first consider the law relating to the execution and manner of proof of Wills under the Indian Succession Act, 1925 and the Evidence Act, 1872.

40. Sections 68 and 71 of the Indian Evidence Act, 1872 which relate to proof of documents required by law to be attested, read as under: ―68. Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. ……

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

41. In Jagdish Chand Sharma (supra) referring to Sections 68 and 71 of the Evidence Act, it was observed: ―22.2. These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence.‖

42. The underlying principle as stated in the aforementioned judgements of the Apex Court were summed up by the Apex Court in the decision of Jaswant Kaur v. Amrit Kaur (1977) 1 SCC 369 as referred to in Raj Kumari v. Surinder Pal Sharma 2019 SCC Online SC 1747, as under: ―(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. (2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. (3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. (4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. (5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. (6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.‖

43. The issue was resolved beyond controversy in Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91 wherein it has been held that clause (c) of Section 63 of the Indian Succession Act requires and mandates attestation of a Will by two or more persons as witnesses, albeit Section 68 of the Evidence Act gives concession to those who want to prove and establish a Will in the court of law by examining at least one attesting witness who could prove the execution of the Will viz., attestation by the two witnesses and its execution in the manner contemplated by clause (c) to Section 63 of the Indian Succession Act,

1925. However, where one attesting witness examined fails to prove due execution of the Will, then the other available attesting witness must be called to supplement his evidence to make it complete in all respects to comply with the requirement of proof as mandated by Section 68 of the Indian Evidence Act, 1872.

44. The interplay of the above statutory provisions and the underlying legislative objective would be of relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient it would be to scrutinize the evidence adduced by the parties.

45. The petitioner to prove the Will in accordance with Section 63(c) of the Indian Succession Act, 1925 has deposed that his father Late Shri Tilak Raj Bhatia had executed the first registered Will dated 02.09.2005 Ex. PW-1/2 bequeathing the suit property to him and his family members i.e. wife and two sons and had categorically stated that none other the petitioner and his family members would be the owners of the suit property.

46. He after two years again executed the registered Will dated 18.12.2007/ Ex. PW 1/3, while he was in absolute sound mind. He had mentioned in the Will that ―till he is alive, he shall remain the absolute owner of the suit property and after his demise, the same shall be bequeathed to the Executor (―in favour of my son Sh. Ashok Bhatia, son of Shri Tilak Raj Bhatia, R/o. 8/61, Moti Nagar, New Delhi-15‖). He also made clear that ―other legal heirs of the said Testator shall have no rights to interfere in this Will….. This is my last and final Will regarding the said property and I have executed this will without any pressure of any person/s‖.

47. The other aspect is that the subject Will Ex. PW1/3 is a duly registered Will. In Rabindra Nath Mukherjee and Another v. Panchanan Banerjee (Dead) by LRs. and Others (1995) 4 SCC 459, the Supreme Court had observed that the doubt would be less significant if the Will is registered and the Sub-Registrar certifies that the same was read over to the executor who, on doing so, had admitted the contents. In each case, the court must be satisfied as to the mandate and requirements of clause

(c) to Section 63 of the Indian Succession Act.

48. The petitioner has deposed about the Will Ex.PW1/3 bearing the signatures of the deceased and being the last registered Will. The Respondent No.3 has not questioned the signatures of the Propounder or of the attesting witness. The registration of the Will further lends credence to its genuineness in the absence of any impeaching circumstances.

49. The petitioner thus proved the Will Ex. PW1/3 in accordance with Section 63(c) of Indian Succession Act.

50. The most significant independent evidence establishing the validity of the Will is the testimony of the petitioner who had deposed that the respondent No. 3 used to threaten the petitioner and his family members which compelled him to file a Suit for Declaration and Permanent Injunction bearing number CS(OS) 528/2009, certified copy of which is Ex. PW-1/5 before this Court. Late Shri Tilak Raj Bhatia appeared before the Court on 22.01.2010 in the said Suit and during the course of the proceedings, his statement, certified copy of which is Ex. PW-1/6, was recorded in the Court by Ld. single Judge wherein he affirmed his exclusive right and ownership in the suit property and further admitted the execution of the two Wills dated 02.09.2005 and 18.12.2007. Thereafter, the Order dated 22.01.2010, Ex. PW-1/7 was made as under: ―6.......... Today the statement of the first defendant was recorded. The same is part of the Court file. The Court has considered the demeanor of the first defendant and is satisfied that he is in full possession of his senses and also capable of understanding whatever is asked. He stated that the affidavit relied upon by the plaintiffs and placed on record was executed by him consciously and voluntarily. He has supported the contents of the affidavit mentioning about the two Will executed, dated 02.09.2005 and 18.12.2007. He also claims to be the exclusive owner of the suit property.‖

51. There cannot be any more credible and unimpeachable evidence than the statement made by a litigant before the learned Single Judge of this Court. Late Shri Tilak Raj Bhatia in his statement before this Court had categorically admitted that he is the owner of the suit property and executed the said two Wills dated 02.09.2005/ Ex. PW-1/2 and 18.12.2007/ Ex. PW-1/3 in his sound mind. The learned Single Judge who recorded the statement observed the demeanor of Late Shri Tilak Raj Bhatia, and recorded its satisfaction that Sh. Tilak Raj was in full senses and was capable of understanding his statements. It establishes not only that the Will had been executed by him but also that it was executed voluntarily in sound mind, without any pressure or coercion.

52. To corroborate and to prove the Will in terms of Section 68 of the Indian Evidence Act, 1872, the petitioner examined PW-2/Vaninder Singh, the attesting witness who deposed that on the request of Late Shri Tilak Raj Bhatia, he had accompanied him to the Office of the Subthe Will at Point A and A[1] in his presence, while he, an attesting witness had signed at Point B and B[1] in the presence of the Sub-Registrar. The witness was duly cross-examined by the respondent No.3/Satish Bhatia, but his credibility could not be shaken.

53. The unimpeached testimony of the petitioner which is fully corroborated by PW-2/ Vaninder Singh, the attesting witness proves the Will dated 18.12.2007/ Ex. PW-1/3 was the last and final Will duly executed by the father in favour of the petitioner.

54. The defence of Respondent no.3 essentially is that the petitioner got it executed under undue influence. The respondent No. 3/Satish Bhatia had tried to substantiate his claim on the ground that Late Shri Tilak Raj Bhatia was harassed and ill-treated by the petitioner and his family and the petitioner got executed the Will from Late Shri Tilak Raj Bhatia under coercion and undue pressure. The respondent No. 3 has also deposed that Late Shri Tilak Raj Bhatia was an old man and was not in sound mind. In his cross-examination, he admitted that he had no documents whatsoever by way of police complaint or any other litigation to show that Late Shri Tilak Raj Bhatia was under coercion or undue pressure or was of unsound mind or that he was deprived of his basic needs, such as food, clothing, etc. When given a suggestion that Late Shri Tilak Raj Bhatia never resided with him, he volunteered that Late Shri Tilak Raj Bhatia resided with him for two years i.e., between 2007 and 2008. Interestingly, if Late Shri Tilak Raj as per his deposition, came to reside with him in the years 2007 and 2008 i.e. after the Will was executed, he had every opportunity to correct the alleged misdeeds of the petitioner and to get the Will nullified. It is evident from the evidence of respondent no.3 that false ground to challenge the Will is sought to be concocted where there exists none.

55. The respondent no. 3 made another endeavour to support his averments of undue pressure on Late Shri Tilak Raj Bhatia by examining R3W1/2/ Mr. Atma Ram Sharma who deposed that he was the childhood friend of the respondent No. 3/Satish Bhatia and earlier used to reside at 8/18A, Moti Nagar, New Delhi. He used to frequently visit the house of the Testator as a friend and had continued to do so even after the demise of Late Shri Tilak Raj Bhatia. He also deposed that the petitioner had and his family used to harass the Testator during his life time and the wife of the petitioner was so cruel that Late Shri Tilak Raj Bhatia often complained to him that he was not provided with the basic amenities. He further deposed that the signatures on the two Wills had been obtained by the petitioner by putting undue pressure on Late Shri Tilak Raj Bhatia. In his cross-examination, he admitted that he had come to depose in the Court on the request of the respondent No. 3/Satish Bhatia. He further admitted that he was not even aware of the date of the Wills in respect of which he had come to depose, but volunteered that they may be year 2008-09. He also admitted that he was not aware of the content of the Wills. He further admitted that he never made any complaint to any authority about the alleged misconduct.

56. From the cross-examination of Mr. Atma Ram Sharma, it is evident that he had merely come to depose in the Court on the request of the respondent No. 3/Satish Bhatia and there is no cogent evidence to support either the allegations of Late Shri Tilak Raj Bhatia being ill-treated by the petitioner and his family members or of he being of unsound mind.

57. In Jaswant Singh (supra), it was held that suspicion generated by disinheritance is not removed by mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in sound and disposing state of mind when the Will disinherits those like the wife and children of the testator who would have normally received their due share in the estate. At the same time, the testator may have his own reasons for excluding them. Therefore, it is obligatory for the propounder to remove all the legitimate suspicions before a Will is accepted as a valid last Will of the testator.

58. In this case, the significant aspect is that Respondent no.3 has stated in his objections that Sh. Tilak Raj Bhatia on 18.12.2007 in addition to the Will in respect of the suit property, had also executed another Will on the same day in regard to the shop in favour of respondent no.2. The execution of two Wills in the name of different persons belies the claim of the respondent no.3 that they were executed under pressure. This is more so as the intention to bequeath the suit property was manifested in the first Will in 2005 and again in 2007. There are no suspicious circumstances established by the respondent no. 3 shrouding the Will which bequeaths the suit property to the petitioner to the exclusion of other legal heirs, more so, when none of the legal heirs except Respondent no.3 has come forth to unsuccessfully challenge the Will.

59. The defendant no. 3 had taken a plea that the present petition was a counterblast to Civil Suit bearing number CS(OS) 889/2010, renumbered as CS No. 11577/2016 which was filed for the Partition of Joint Family Properties. An Order dated 06.08.2022 was passed vide which the application for Order XII Rule 6 of the CPC filed by the petitioner herein was allowed, and the Suit for Partition was dismissed.

60. Therefore, the petitioner has been able to establish through cogent evidence that the Will Ex. PW-1/3 was the last and final Will of Late Shri Tilak Raj Bhatia by virtue of which the suit property has been bequeathed to the petitioner and he has also been appointed as the Executor.

61. Issue Nos. 1 & 2 are decided in favour of the petitioner. Relief:

62. The Probate with the Will annexed, is hereby granted to the petitioner in respect of the Will dated 18.12.2007/ Ex. PW1/3, subject to payment of requisite stamp duty/court fees as per the valuation report. On payment of the requisite court fee and other formalities noted above, the Probate in respect of Will 18.12.2007 be issued by the Registry to the petitioner.

63. The petitioner shall furnish Administrative bond with one surety to the satisfaction of the Registrar General of this court.

64. Accordingly, the present petition is allowed in the above terms.

JUDGE MARCH 06, 2023 S.Sharma/A.Sharma