Balbir Sher Gill v. State of Delhi & Ors.

7. Whether the alleged Will was registered in back date by the plaintiff in connivance with the Sub-Registrar-III, New Delhi and/or his officers/agents. OPR

8. Whether the relief sought by the plaintiff is barred by limitation. OPR

9. Relief.”

11. Though the claim, of discovery of the document claimed to be the Will, after more than 20 years of demise of testator itself is a suspicious circumstance, I have asked the counsel for the petitioner to show how the document has been proved in accordance with law as the validly executed last Will of the deceased.

12. The counsel for the petitioner states that the document claimed to be the Will bears the signatures of two attesting witnesses and the petitioner has examined both the attesting witnesses i.e. Raj Singh as PW-2 and Subhash Chander as PW-4.

13. PW-2 Raj Singh, in his affidavit by way of examination-in-chief claimed (i) that he was working as a private security guard in Azadpur Sabzi Mandi in the year 1974 and came in contact with the deceased in the year 1975; (ii) that he used to visit the deceased in his house in Naniwala Bagh, Azadpur, Delhi in the year 1975 and had also visited the house of the deceased at Model Town, Delhi; (iii) that in the month of October, 1976, he was residing in Naniwala Bagh, Azadpur, Delhi and the deceased had informed him that he was executing a Will pertaining to his house in Model Town and asked Raj Singh to put his signatures on the document as an attesting witness; (iv) that the document dated 15th October, 1976 was signed by the deceased in his presence and he had put his own signatures on the said Will in the house of the deceased at Naniwala Bagh, Azadpur, Delhi; (v) that the contents of the document dated 15th October, 1976 were in English language and were explained by the deceased Teja Singh to him in Hindi and he had put his signatures thereafter only; (vi) that “there was another person present at the time of signing and he had also put his signature on the said Will”; (vii) that “contents of the Will dated 15-10- 1976 are true and correct and the contents of the Will was read over and made understood in Gurmukhi/Hindi and after understanding the contents of the same it was duly signed by the testator in my presence”; (viii) that the original Will was got registered by the petitioner in the office of the Sub-Registrar, Delhi on 26th July, 1999 and there also he had put his signatures as witness to the said document; (ix) that he had also signed an affidavit dated 23rd July, 1999 “which is Ex.PW-2/A”; and, (x) that he had also signed an affidavit dated 25th September, 2008 “which is Ex.PW-2/B”.

14. PW-2 Raj Singh, when appeared before the Court on 14th January, 2011, tendered his affidavit by way of examination-in-chief and referred to the document dated 15th October, 1976 as the Will of the deceased and purported to put points „A‟ and „B‟ against his signatures on the original document dated 15th October, 1976, on which Ex.PW-2/A was put. In his cross-examination, he deposed (a) that he could not read English; (b) that he signed the Will Ex.PW-2/A on 15th October, 1976; (c) that he knew the deceased since 1974 when he had joined a security service firm in Azadpur, Naniwala Bagh and often used to go to a tea shop which was near the house of the deceased; (d) that he was at that time 18-19 years old and the deceased at that time was 68-70 years old; (e) that he had initially told the deceased that they had come to know each other recently only and why was the deceased insisting on his signature as attesting witness but the deceased had insisted; (f) that the petitioner had called him to the office of the Sub- July, 1999; and, (g) he otherwise denied the suggestions of the counsel for the objectors.

15. The counsel for the petitioner states that the other attesting witness Subhash Chander under pressure from the respondents, failed to give any affidavit by way of examination-in-chief and a commission was issued for recording his evidence as PW-4.

16. PW-4 Subhash Chander, in his examination-in-chief deposed (I) that he had been residing in Model Town, Delhi; (II) that he knew the petitioner since childhood and used to go on and off to the residence of the petitioner;

(III) that he also knew the father of the petitioner “a little” as he used to visit the petitioner‟s residence; (IV) that he did not remember whether he used to sign as depicted at point A to A on the document claimed to be the Will Ex.PW-2/A, (I may however record that on Ex.PW-2/A, no point A to A are found); (V) that he did not know any Raj Singh; (VI) that he had studied till class 10 and used to sign in English; (VII) that on being shown the document Ex.PW-2/A claimed to be the Will, again he stated that he used to sign like this (probably referring to the signatures shown to him) but his signatures were different then; (VIII) that he could not say whether he signed on the document Ex.PW-2/A or not; (IX) that he could read English and also understood English to some extent; and, (X) that the document shown to him contained his signatures at points „B‟ and „C‟ (however it is not recorded on which document points „B‟ and „C‟ were so put; points „B‟ and „C‟ however are found on affidavit dated 23rd July, 1999 of Subhash Chander filed as Annexure P-3 to the petition being the affidavit filed before the Sub-Registrar (however the said affidavit is in original before this Court and could not have been filed before the Sub-Registrar)).

17. PW-4 Subhash Chander, in his cross-examination deposed (A) that the petitioner had been coming to him for the last 3-4 years stating, that Subhash Chander had to depose in Court but he did not know to what document was the petitioner referring to; (B) that it was only the petitioner who told him about Raj Singh and he otherwise did not know any Raj Singh; (C) that he came to Model Town in the year 1971-1973 and must have been 15-16 years at that time and was studying in class IX; (D) that he also used to know other family members of the petitioner but was on talking terms only with the mother of the petitioner and „used to meet‟ the father of the petitioner but did not speak to him much; (E) that he was not aware of any document which bears his signatures; (F) that he had not gone any place at the instance of the petitioner and had not signed any document at the instance of the petitioner; (G) that he did not know when the father of the petitioner died; (H) that he did not remember whether he had signed any Will of any person (“then said that I have not signed”); (I) that he could not tell what the petitioner does but knew that he used to deal in properties; (J) that he had sold his Model Town house in the year 1996 and the deal was done through the petitioner; (K) that he could not tell when the mother of the petitioner died; (L) that the address of the deceased was Metal Box Company, Faridabad; (M) that he could not tell whether the deceased was not keeping well for 25 years prior to his death, though it was mentioned in the Death Certificate shown to him that the deceased was ill for last 25 years; (N) that in the year 1976 he had a small General Store in Model Town at his residence and he could not tell what the petitioner was doing in 1976; (O) that at point X to X on the true copy of the Will annexed with the petition as Annexure-I, the name/signature of Subhash Chandra is affixed “but it is not so in the original Will at the said portion”; (P) that he could not tell the age of the deceased in 1976; (Q) that he could not tell the age of Raj Singh as he did not know any Raj Singh at all; (R) that he did not remember whether he had got the document, being his affidavit filed along with the petition, notarised; (S) that “I do not know any Raj Singh”; (T) that in 1976, the deceased used to reside at Naniwala Bagh as well as at Model Town and was working at some Metal factory in Naniwala Bagh; (U) that he did not know whether the deceased knew English but the deceased never talked in English to him; (V) that the petitioner had 3-4 younger siblings; (W) that he did not know if the deceased was residing in Faridabad in 1976 along with his son Dalbir Singh; (X) that he had never seen the deceased writing any application or FIR or any other document; (Y) that he did not remember whether he had visited any Sub-Registrar office for getting the document registered; (Z) that he did not remember whether he visited the Sub-Registrars office with the affidavit Annexure P-3 to the petition; (AA)

(LL) that the deceased never mentioned to him about any Will prepared by him and he did not remember whether he signed any Will prepared by the deceased; (MM) that he did not know how many properties the deceased had; (NN) that the petitioner had discussed with him about the properties of the deceased only in the previous 3-4 years; and, (OO) that the deceased had not signed Ex.PW2/A in front of him.

18. The counsel for the petitioner, during the hearing yesterday, on enquiry as to where was the Will for twenty years, stated that the Will was lying in a box containing the belongings of the father and which remained with the mother of the petitioner and was submerged in water in the flooding of the Model Town area in the year 1978. However on seeing the original document claimed to be the Will, it was observed during the hearing yesterday that the document did not appear to have been submerged in water at any point of time.

19. The counsel for the petitioner during the hearing on 4th July, 2019 was also asked to produce before this Court the Relinquishment Deed claimed to have been executed by the respondent no.3 Shammi of her share in the property in favour of the petitioner. The counsel for the petitioner has today in Court shown the original Relinquishment Deed and a copy thereof is taken on record and a perusal whereof shows (i) the same to have been executed by the respondent no.7 Surjeet Kaur not only for herself but also as a power of attorney holder of the respondent no.3 Shammi; (ii) the Relinquishment Deed to have been executed on the premise of the deceased Teja Singh having died intestate and the petitioner and each of the respondents no.2 to 7 having 1/7th undivided share in the property; and, (iii) the respondents no.3 & 7 having relinquished their 1/7th share each in the property in favour of the petitioner. Thus, on a perusal of the Relinquishment Deed it is evident that even according to the petitioner, as on the date of execution of the Relinquishment Deed i.e. 26th April, 2000, neither the petitioner nor the respondent no.3 Shammi nor respondent no.7 Surjeet Kaur were aware of any Will of the deceased Teja Singh.

20. The counsel for the petitioner, during the hearing today, has also sought to withdraw the argument made yesterday, that the Will was discovered after the Relinquishment Deed and after twenty years of the date of demise of Teja Singh. He has in this regard purported to take me through the petition and the rejoinder filed to the objections of the respondents no.2,3,4,5&7. However in the petition, there is not even a whisper of a pleading that the Will was not known to the petitioner for a period of twenty years as was argued yesterday and thus the question of pleading circumstances in which the Will remained hidden did not arise. However in the rejoinder, the petitioner, in reply to preliminary submissions, has pleaded as under:-

“II. The contents of para II of the preliminary submissions are wrong and hence denied. The said will was executed on15-10-76 and about the execution of the said will has been in the knowledge of all the respondents since the death of the father of the petitioner and the respondents. That as per family settlement and the desire of the father of the petitioner, all the respondents kept the property of the Faridabad and the property of Delhi mentioned in Will in question was left with the petitioner. The registration of the will has been got registered on 26-7-1999 is a matter of fact. It is specifically denied that the will has been got registered in back date.”

21. It is thus quite clear that what was stated during the hearing yesterday, that the Will remained hidden for twenty years or was submerged during the flooding of Model Town area in 1978, was contrary to pleadings. On enquiry from the counsel for the petitioner as to on what basis he has argued so, he states that he had yesterday, come to the Court straight from out of Delhi and the petitioner, present in Court, while briefing him had told him so.

22. As per the pleadings in the rejoinder aforesaid, the petitioner as well as the respondents no.3&7, since the death of their father had knowledge of the Will and all the heirs had accepted the said Will. If that was so, there was no question of respondents no.3 & 7 or for that matter any of the respondents, on the demise of their father, inheriting any share in the subject property and no need for the petitioner, on 26th April, 2000, while executing the Relinquishment Deed as Beneficiary, obtain relinquishment of 1/7th share of each of the respondents no.3&7. It is significant that the Relinquishment Deed expressly mentions the deceased to have died intestate and respondents no.3 and 7 inheriting 1/7th share each. If the purport in executing the Relinquishment Deed was only to remove any ambiguity and / or to perfect the exclusive title of petitioner on the basis of Will, the language of the Relinquishment Deed would have been different and respondents no.3 and 7 only declared having no share in accordance with Will and desire of the father.

23. The counsel for the petitioner of course today, while withdrawing his statement made yesterday of the Will having remained hidden for twenty years and/or having been submerged, has drawn attention to para 18 of the petition where the petitioner has pleaded the factum of execution of the Relinquishment Deed by the respondents no.3&7 by pleading “Moreover in order to make it more clear they have executed relinquishment deed in favour of the petitioner”. The said plea however is contrary to the document. As per the document i.e. the Relinquishment Deed, the same is not to ensure a better title to the petitioner in the 2/7th share of the respondents no.3&7 but to thereunder convey the said 2/7th share. If a registered document had been desired inspite of the Will, the language thereof would have been different and the document would have been in the form of a Deed of Declaration of acceptance of the Will. In terms of Sections 91 and 92 of the Indian Evidence Act, 1872, no plea in contradiction of the terms of a registered document can be taken or proved. The petitioner has in any case not proved that the Relinquishment Deed was executed for the reasons pleaded.

24. From the aforesaid scenario, it is quite evident that the petitioner, in the matter of filing this petition seeking probate of a document claimed to be the Will of his father, has indulged in forgery and fabrication of a Will. During the hearing yesterday I had also asked the counsel for the petitioner to also address on as to why prosecution of the petitioner of the offences committed by him, under Section 340 of the Code of Criminal Procedure, 1973 (Cr.PC) be not ordered.

25. The counsel for the petitioner only states that the petitioner has not indulged in forgery.

26. However the said would be a defence in the prosecution and is no argument to the show cause against Section 340 of the Cr.PC. I am of the view that if even in gross cases, the Court at the cost of burdening another Court, does not invoke the provision of Section 340 of the Cr.PC, persons like the petitioner will walk away from the Court with an impression that the maximum consequence of forgery and fabrication indulged in by them is of losing in the civil suit / petition and which will not in my opinion prevent them in future from indulging in similar offence.

27. To say the least, the two attesting witnesses examined by the petitioner in proof of the document claimed to be the Will have been unable to prove the same. Section 63 of the Indian Succession Act, 1925, while prescribing the mode of execution of unprivileged Wills, prescribes:

(i) that the testator shall sign or shall affix his mark to the Will;

(ii) that the signature or mark of the testator shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

(iii) that 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, in the presence of and by the direction of the testator;

(iv) that each of the witnesses shall sign the Will in the presence of the testator;

(v) that it shall however not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

28. If we test the testimony of the two purported attesting witnesses to the Will, it emerges (i) that PW-2 Raj Singh in his affidavit by way of examination-in-chief stated that at the time of signing, there was another person present and he had also put his signatures on the said Will; however he did not name the said other person; (ii) however since it is not the case of the petitioner or of any other witnesses, that any other person was present besides PW-2 Raj Singh and the deceased, the said only other person can be the other purported attesting witness i.e. PW-4 Subhash Chander; (iii) PW-4 Subhash Chander in his evidence repeatedly denied any knowledge of PW-

2 Raj Singh; (iv) PW-4 Subhash Chander in his examination-in-chief, when shown the document claimed to be the Will i.e. Ex.PW-2/A and when asked whether he used to sign in the manner shown in that document, first stated that he did not remember but upon being again asked the same question (and which was recorded subject to objection of the objectors since the evidence was being recorded on commission), stated that he used to sign like that; (v) the said objection is also for decision today; (vi) the petitioner, in examination-in-chief, having already asked PW-4 Subhash Chander about his signatures and PW-4 Subhash Chander having denied the same, was not entitled to again ask the same question and in response to which PW-4 Subhash Chander gave a contradictory answer; the same alone leads to inference that no weight or value can be given to the testimony of PW-4 Subhash Chander; (vii) however PW-4 Subhash Chander, while the second time admitting that he used to sign in the manner as on Ex.PW-2/A, stated that he could not say whether he had signed on Ex.PW-2/A or not; (viii) even otherwise, from the testimony of PW-4 Subhash Chander it is quite evident that his connect was with the petitioner only and not with the deceased Teja Singh; (ix) PW-4 Subhash Chander, in his entire testimony, has not proved that he was attesting witness to the document Ex.PW-2/A and has also falsified the statement of PW-2 Raj Singh, of both PW-2 Raj Singh and PW-4 Subhash Chander being present at the same time; and, (x) there is thus also a contradiction between the testimonies of the two attesting witnesses.

29. The counsel for the petitioner of course contends that PW-4 Subhash Chander came under pressure of the objectors. However the fact remains that the petitioner, though entitled to in law to have PW-4 Subhash Chander declared hostile and cross-examine him, did not chose to do so and without laying any foundation for such an argument, the argument cannot be permitted to be raised.

30. I may say that even otherwise, the alleged Will is shrouded in suspicious circumstances;-

Balbir Singh and respondents no.4,5,6&7, Satnam Singh, Prithvipal Singh, Kartar Singh as well as youngest daughter Surjeet Kaur were unmarried and only respondent no.2 Dalbir Singh and respondent no.3 Shammi were married;

SC 443, Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee AIR 1964 SC 529, P.P.K. Gopalan Nambiar Vs. P.P.K. Balakrishnan Nambiar AIR 1995 SC 1852, Jaswant Kaur Vs. Amrit Kaur (1977) 1 SCC 369 and Purnima Devi Vs. Kumar Khagendra Narayan Dev AIR 1962 SC 567.

Model Town house exclusively to the petitioner, Faridabad house has been given to the others; in the absence of any Will with respect to the Faridabad house, the petitioner, if the Will were to be proved, though having exclusively one of the two / three properties to himself, would also have a share in the other properties and which is also against the grain of what was expected of the deceased, seating oneself in the armchair of the deceased.

31. The counsel for the respondents no.2 to 5 has argued, (i) that the deceased was an illiterate person but the alleged Will is in legal language and there is no proof as to who drafted the same; though the petitioner has examined PW-3 Rajesh Kumar Gupta, Advocate but he posthumously got the Will registered and in cross-examination stated that he was not involved in drafting of the Will; and, (ii) that conflicting versions have been given by the petitioner of the date of knowledge/discovery of the alleged Will; while in the rejoinder aforesaid it is pleaded that the Will was known since the demise; in Civil Suit No.697/2014 of the Court of Ms. Sonam Singh, Civil Judge-05, Delhi, certified copy of which is on record, it was pleaded “That Raj Singh the witness of the will had disclosed about the execution of the will in the year 1978 to the Late mother of the plaintiff and also to the plaintiff. Therefore the Box of father was searched and the said will was found in the year 1978; That at that time Dalbir Singh, Satnam Singh and Prithvipal Singh were residing at Faridabad House at that time Smt. Shammi was already married. The fact of the will was already disclosed by Late Smt. Ishwar Kaur to all the family members since then”; a third version was taken during the arguments yesterday, when it was argued that the Will was discovered in the year 1996-97 and the story of the Will having remained submerged in the flooding of Model Town in the year 1978 was propounded.

32. The counsel for the respondent no.7 has argued (i) that the deceased died within 1½ months of his alleged Will and which itself is a suspicious circumstance; and, (ii) that the respondent no.7 Surjeet Kaur, at the time of demise of the father, was merely 11 years old and the deceased, in the normal course of human conduct, would have made a provision for her.

33. The counsel for the petitioner though has sought to contend that there is some evidence of the petitioner having helped his siblings but admittedly the said evidence is of post 1976 and which according to me is not relevant. The evidence if any, to justify the unequal unfair preference of the petitioner from amongst his other siblings, was to be of the reason stated in the alleged Will of the petitioner prior to the execution thereof helping his siblings and qua which there is no evidence.

34. The counsel for the petitioner at the close of this dictation in open Court has handed over copies of Rajesh Sharma Vs. Krishan Kumar Sharma 2014 (142) DRJ 660, Sridevi Vs. Jayaraja Shetty 2005 (2) SCC 784, M.B. Ramesh Vs. K.M. Veeraje Urs (2013) 7 SCC 490, Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur (2008) 8 SCC 463, order dated 12th October, 2017 in FAO No.402/2015 titled Amit Vs. State of NCT of Delhi, Surender Rana Vs. State 2017 (243) DLT 181, Ashok Kumar Dua Vs. Ranbir Kumar Dua 2008 (104) DRJ 662, Jaswant Kaur supra, Naveen Bhatia Vs. Raj Kumari Bhatia 2017 (165) DRJ 511 and Krishan Lal Dilawari Vs. State 210 (2014) DLT 439.

35. Such handing over of a bunch of judgments after dictation in open Court serves no purpose. Be that as it may, I have perused each of the aforesaid judgments and suffice it is to state that the same were decided on their own facts and which have no relevance to the findings hereinabove.

36. The counsel for the respondents no.2 to 5 in retaliation has also handed over a bunch of copies of Kavita Kanwar Vs. State (NCT Delhi) 2011 (2014) DLT 448, Jaswant Kaur supra, Rani Purnima Devi supra, Dinesh Kumar Vs. Khazan Singh 31 (1987) DLT 388, Yumnam Ongbi Tampha Ibema Devi Vs. Yumnam Joykumar Singh (2009) 4 SCC 780, Lalita Sharma Vs. Sumitra Sharma 178 (2011) DLT 358 and Yogesh Duggal Vs. State 179 (2011) DLT 557.

37. Having already decided in favour of the respondents, need to discuss the said judgments is not felt.

38. Resultantly the petition fails and is dismissed.

39. The petitioner is burdened with costs of the petition of Rs.1,00,000/payable to the contesting objectors in equal share within two months of this judgment.

40. A complaint be also made by the Registrar General of this Court under Section 340 of the Cr.PC, of the offence committed by the petitioner in the course of this proceeding, of forgery and fabrication of a Will and of giving false evidence in the present proceedings.

41. The parties to appear before the worthy Registrar General of this Court for the said purpose on 6th August, 2019.

42. The petition is disposed of.

43. CCP(O) No.22/2010 under Sections 11 & 12 of the Contempt of Courts Act, 1971 filed by the petitioner and directed against the respondent no.5 Prithvipal Singh is also pending before this Court.

44. The counsel for the petitioner states that the said CCP(O) was filed because the respondent no.5 Prithvipal Singh, in violation of the interim order was raising construction in the suit property at Model Town.

45. In the facts and circumstances aforesaid, it is not deemed appropriate to proceed with the CCP(O) which is closed.