Hardeep Singh v. Mohinder Singh & Anr

1. This application under Order 41 Rule 27 read with section 151 CPC seeks production of additional evidence by way of getting the signatures of the executors on three documents verified from the CFSL. The signatures sought to be verified are of i) Late Smt. Joginder Kaur, interalia on the plea that the Will dated 01.09.2014 is forged; it was never executed by her; that her actual Will is dated 07.09.2014, as relied upon by the appellant; ii) the No Objection Affidavit dated 08.12. 2014 filed by the respondent no. 1; and iii) the appellant’s signature on it.

2. The Court is of the view that the forensic examination and evidence ought to have been sought by the appellant before the Trial Court. He had 2018:DHC:3186 every opportunity for doing so. But, he chose not to do so. Furthermore, he has not sought any relief in terms of the Will dated 07.09.2014 referred to by him. He has not sought the relief of probate apropos it. The Will propounded by the respondent’s father was dated 01.09.2014; trial apropos the same was held; evidence was recorded and once it was proven, the probate was granted. There was no occasion to doubt the proven Will because the appellant led no evidence to suspect its veracity. Furthermore, he did not seek to prove the Will dated 07.09.2014 mentioned by him.

3. In view of the above, the application is dismissed.

4. On 23.01.2018 the Court had, inter alia, passed the following order: “….. 1. The learned counsel for the respondent No. 1 states that by order dated 06.04.2016, the appellant had been protected from dispossession from the suit property till the next date of hearing. However, this protection was not extended on the subsequent date. Therefore, in effect the appellant has no protection legal today. He further submits that the decree holder is 78 years old, he and his late wife suffered harassment for a long period by the appellant. To substantiate this grievance, he refers to the document of inheritance (PW-1/H). He also refers to various police complaints regarding the harassment caused by the appellant to the parents. He submits that the impugned order does not suffer from any infirmity and the appeal ought to be dismissed.

3. It is the appellant‟s case that the Will, Ex. PW1/A is forged because it could not have been signed on 01.09.2014, since that is the day on which his mother was admitted to a hospital for the treatment of cancer. On the basis of documents obtained on 14.10.2015 through RTI, the mother was “registered with Institute of Liver and Billary Sciences (ILBS) as an OPD patient on 1st September, 2014 at 9:11 a.m., her vitals were checked at 9:12 a.m. and the patient was given consultation by Dr. Dipanjan Panda, Assistant Professor (Oncology) at 10: 29 a.m. The patient was admitted in Day Care on 1st September, 2014 at 11:14 a.m. for Chemotherapy and discharged at 2:25 p.m.....”

4. The learned counsel for the appellant also submits that the alleged Will could not have been signed by his mother in favour of his father/respondent No. 1 because she was admitted to the aforesaid hospital at about 9.00 a.m and administered Chemotherapy at 11.14 a.m., therefore, she was not in a position to sign the documents.

5. During the course of hearing the petitioner has stood up in the Court a number of times. At 14.52 hours, he has again interrupted the Court proceedings and says that his lawyer is unable to represent his case properly. In the circumstances, Mr. Prateek Tanwar, Advocate, seeks discharge of his vakalatnama. Accordingly, his vakalatnama is discharged.

6. The appellant argues in person. He refers to the impugned order and argues primarily in English and then in Hindustani as well. He fully understands the import of the judgment.

7. It is his case that since his mother was admitted to the hospital from 9.11 a.m. to 2.25 p.m., she could not have signed the Will, which according to his father, was signed around 12 noon. He submits that, therefore, the medical certificate, Ex. PW 1/B issued by Dr. P. K. Gupta, the local Consultant, Physician and Cardiologist, cannot be relied upon. He further submits that he never issued any NOC to his father apropos his mother‟s estate nor has she disinherited him from the same. It is his case that the complaints, if any, made to the police against him, were by the father and never by the mother. He relies upon an intimation to the SHO dated 26.08.2014, Ex. PW1/L. His primary argument is that since the mother was admitted in the hospital, she could not have signed the Will at her residence. According to him, this would rather challenge the law of identity, as a person cannot be present at two places simultaneously.

8. The substance of his argument is based upon the testimony of his father given in his cross-examination on 14.09.2015, which reads as under:- “.......Ques: Can you say as to what all work did Late Smt. Joginder Kaur performed on the day she executed the Will? Ans: Since she was unwell, therefore, I saw to it that she did not perform any work and took rest on bed for most of the time. I do not recall at what time was the Will executed. On that day, she remained in the house whole day long. The Will was first got typed according to the instructions of Late Smt. Joginder Kaur and then it was got signed from her. Doctor was also called at that time to assess the mental condition of my wife. The doctor was called on the same day when the Will was executed by my wife to assess her fitness to execute a Will. The doctor visited my wife around 12 O' Clock noon at our house. The doctor left after issuing the fitness certificate. Thereafter, my wife signed the Will in presence of the witnesses. xxxx xxxx xxxx Ex.PW1/D and E were drafted by me at the instructions of Late Smt. Joginder Kaur and they were signed by her. It is correct that the publication of disowning /debarring Shri Hardeep Singh was published in the newspaper "The Tribune' and 'Dainik Tribune' in my name pursuant to my public notices Ex.PW1/I and J. It is correct that these were not issued by Late Smt. Joginder Kaur. It is wrong to suggest that the joint declaration Ex.PW1/H is a false and forge document. The Will was first attested by the attesting witness Mr. Sharma and then by Mr. G V Singh. I do not remember whether the witnesses signed with the same pen as Late Smt. Joginder Kaur. The witnesses also recorded their addresses while signing the Will. Because I had to take care of Late Smt. Joginder Kaur, neither did I have time to visit various offices for registration of the Will nor did I consider its registration necessary. Late Smt. Joginder Kaur never asked me or insisted upon for registration of the Will.”

9. The Court would note that the impugned order has granted the Letters of Administration not on the basis of the mere statement that the Will was signed at 12 o‟clock at the residence but on the basis that there was no denial or doubt about the execution of the Will (Ex. PW1/A) by the mother i.e. her signatures were not contested. The Trial Court also considered the fact that the two witnesses supported the execution of the Will, one of whom, namely, Mr. G. V. Singh (PW[2]) was cross-examined extensively while no searching question was asked from the other witness.

10. The deceased Ms. Joginder Kaur, is survived by her husband- Mr. Mohinder Singh/respondent No. 1 and two sons, one of whom is the appellant and the other is Mr. Gurdeep Singh-respondent No. 2. The learned counsel for the respondent No. 2 submits that the said respondent is ordinarily a resident of Norway and has supported the case of his father-respondent No.1 in the probate petition as well as in this appeal i.e. he has no objection to the inheritance of the property in terms of the Will, Ex. PW1/A.

11. The appellant contends that:- (1) The mother could not have bequeathed the entire suit property i.e. Flat No.8067, Sector-D, Pocket A, Vasant Kunj, New Delhi, since she was only a coowner of the same. Before the Trial Court, the appellant had objected to the bequeathal on the ground that the said Will purported to transfer all assets owned by the mother, which was not possible since she owned only half of the said property alongwith the father. (2) The second ground raised was that the attesting witnesses had stated that the Will, Ex. PW 1/A was apropos the entire suit property, whereas the mother was only owner of 50% thereof, hence, the Will could not be relied upon. (3) Furthermore, Mr. G. V. Singh (PW[2]), the attesting witness to the Will, had stated that he had only put his signature as a witness of the Will, but perusal of the same would show that he has mentioned his address as well. (4) It was also contended that the medical certificate, Ex. PW1/B issued by Dr. P. K. Gupta could not have been relied upon since it did not refer to her being a cancer patient and the said doctor could not have assessed her mental state apropos her ability to execute a Will, especially the fact that when the medical certificate was issued, purportedly at 12 in the afternoon, the appellant‟s mother was undergoing treatment at ILBS, from where she was discharged around 2.25 p.m.

12. The Court notes that each of the aforesaid contentions was addressed and rejected by the learned Trial Court. The reason being that the use of the word „owner‟ in the Will, Ex. PW1/A covers the term „co-owner‟ and since the suit property not being demarcated, she could have transferred her interests therein to whomever she desired. The Trial Court also reasoned that for the grant of probate, the Court is to look at whether the signature appended on the Will was disputed or not. In the present case, the mother‟s signature on the Will was not contested. The Trial Court reasoned as under:-