1 In the court of [ENTITY], Additional District Judge-05, West District, Tis Hazari Courts, Delhi. Suresh Kumar vs State & others (PC no. 92/06/03) Date of filing of petition 8-9-2003 Date of decision 22-3-2010 (Petition u/[SECTION] of [ACT] for grant of Probate of the [ENTITY]) JUDGMENT:
Petitioner filed the present petition for grant of probate on the basis of [ENTITY] of his father Sh. [ENTITY] (herein after referred to as deceased) dated 2-12-1997 in respect of his two immovable properties bearing no. RZ-511 and RZ-512, Dada Dev Road, Raj Nagar-II, village Palam, New Delhi, contents of locker no. 54/18142 in State Bank of Patiala, Palam Colony branch and FDR of Rs. 1 lakh bearing no. 418302/599197. Deceased expired on 15-2-1998 leaving behind two sons i.e. petitioner and respondent no. 2 and four daughters i.e respondents no. 3 to 6. The case was only contested by respondent no. 2 Shri [ENTITY] whereas respondents no. 3 to 6 became exparte.
In his objections, respondent no. 2 described the [ENTITY] as forged and fabricated document. Competency of the deceased to execute the [ENTITY] was also challenged on the ground that he was not the owner of the immovable properties in question as it belonged to Smt. [ENTITY] who had executed a [ENTITY] in favour of respondent as well as Smt. [ENTITY] and Master [ENTITY]. In respect of [ENTITY] of Smt. [ENTITY], a probate case has been filed. Reference to two cases pending between parties in respect to the properties in question has also been given in the objections.
Petitioner in reply to the objections, affirmed the contents of his petition while denying the allegations of the respondent and on the basis of the pleadings of the parties, the following issues were framed by my ld. Predecessor vide order dated 14-2-2008:
1. Whether the [ENTITY] dated 2-12-1997 of Sh. [ENTITY] is proper and valid? OPP
2. Whether the [ENTITY] dated 2-12-1997 of Sh. [ENTITY] is forged and fabricated? OPR-2
3. Whether the petitioner is entitled to the grant of Probate/Letter of Administration in respect of the [ENTITY] dated 2-12-1997 of Sh. [ENTITY]? OPP
4. Relief.
In order to prove his case, petitioner examined himself as PW-1 and Sh. [ENTITY] attesting witness of the [ENTITY] as PW-3. Statement of PW-2 Sh. [ENTITY] cannot be read in evidence in view of the orders dated 18-10-2008 and 8-9-2008 as he was not recalled for completion of his cross examination. Respondent no. 2 examined himself as RW-
1.Counsel for both parties did not appear to argue on the case nor filed any written submissions despite giving time. My decision on the above mentioned issues is as under;
Issues no. 1 and 2:-
These two issues are interconnected and required to be dealt with together. The unregistered [ENTITY] purported to be executed on 2-12- 1997 by the deceased is Ex. PW1/2. It is a handwritten [ENTITY] in Hindi but is bearing alleged signatures of deceased in Urdu as well as his thumb impression. This [ENTITY] is attested by three witnesses including PW-3. Stamp of one attesting Notary Public is also affixed on it without any signatures. This [ENTITY] bears signatures and stamp of one advocate Sh. [ENTITY] who had drafted it.
Number of questions put to PW-1 in cross examination relates to the ownership, title and sale of the immovable properties belonging to the deceased. In the Probate proceedings, question of right, title and ownership of the deceased qua the properties is not to be seen as per settled law of Supreme Court given in case [PRECEDENT]. Hence the dispute raised by respondent that deceased was not the owner of the properties in question cannot be considered in this proceeding. In the Probate proceedings, this court is concerned with the question of genuineness and due execution of the [ENTITY] and not to decide whether the deceased was competent to execute the [ENTITY] or not in respect of properties allegedly not belonging to him. According to this judgment of Supreme Court, even question whether property exists or not is also not to be considered by the probate court and has only to see the legality and validity of the [ENTITY]. Accordingly the dispute whether the deceased was owner of the properties or it belonged to Smt. [ENTITY] are irrelevant to this proceeding.
After going through the statement of petitioner PW-1 and attesting witness of the [ENTITY] PW-3, I find number of suspicious circumstances on record which have remained unexplained and accordingly there arises no occasion to enforce the [ENTITY] in question.
PW-1 stated that age of the deceased was 75 years at the time of execution of [ENTITY] in the year 1997 whereas according to PW-3, he was aged about 78 years but [ENTITY] contains an averment that age of deceased was 85 years at that time. Death certificate produced by the petitioner says that he died at the age of 75 years in the year 1998. Further more [ENTITY] is dated 2-12-1997 but PW-1 specifically stated that it was executed on 1-12-1997. According to PW-1, the [ENTITY] was prepared and executed in the chamber of an advocate in Tis Hazari Court whereas according to PW-3 its execution was done at the residence of petitioner. PW-1 states that [ENTITY] is in the handwriting of Sh. [ENTITY], Notary Public who also attested the same by signing but [ENTITY] Ex. PW1/2 point out that it was drafted by Sh. [ENTITY] advocate. [ENTITY] is not found attested by any Notary Public though stamp of Notary Public without any signatures exists on the [ENTITY]. [ENTITY] is also not signed by Sh. [ENTITY] advocate/Notary Public as alleged by the petitioner. These contradictions in the light of other circumstances explained below become very important and create doubt about the due execution of the [ENTITY].
[ENTITY] is signed by three witnesses namely Sh. [ENTITY], Sh. [ENTITY] and PW-3 Sh. [ENTITY] in sequence wise. PW-3 in his affidavit of evidence stated that deceased had executed [ENTITY] in his presence and put his signatures on both the pages in Urdu after hearing the contents carefully in his presence and in presence of other witness. He identified signatures of deceased, his own signatures as well as signatures of another witness on the [ENTITY]. This witness however had not stated anything about putting of thumb impression on [ENTITY] by the deceased. While tendering his affidavit, PW-3 stated that his affidavit is correct and he signed the same after reading its contents but this witness changed his stand in cross examination. In cross examination, he totally denied signing of deceased on the [ENTITY] in his presence. He also denied signing of witness [ENTITY] on the [ENTITY] in his presence though at earlier portion of cross examination he stated about his signing in his presence also. He did not know who else signed the [ENTITY] on his back as he immediately left the house just after signing it. Signatures of witness [ENTITY] is at serial no. 2 whereas PW-3 signed at serial no. 3. Had [ENTITY] signed before PW-3 on the [ENTITY] then PW-3 had not denied his signing which leads to the inference that signatures of [ENTITY] were inserted on the [ENTITY] lateron. This witness PW-3 is not sure whether this [ENTITY] is forged from which it can be held the [ENTITY] was not duly executed as alleged in his affidavit.
PW-3 further admitted that he was called by petitioner in his house and had signed on the [ENTITY] at his instance who is his friend. Thus his status being of interested witness can be presumed. Other witnesses are the relatives of the petitioner i.e. brother in laws. The possibility of forging the [ENTITY] in such circumstances cannot be ruled out. Neither PW-1 nor PW-3 in their affidavits of evidence deposed about signing of the [ENTITY] by Sh. [ENTITY] in his presence though he is also one of the attesting witnesses of the [ENTITY].
[ENTITY] consists of two pages. On first page, there are signatures of three attesting witnesses whereas on second page, signatures of only two witnesses remained. The first page does not bear any stamp or seal of Notary Public whereas it is available only on second page. The [ENTITY] is drafted by advocate Sh. [ENTITY]. He had wrote words 'drafting by me' and then signed under it and also put his signatures on the second page of the [ENTITY]. However if the position and location of signatures of PW-3 on second page is seen then it can be said that he had signed in a small space between words 'drafting by me' and signatures of Sh. [ENTITY] which clearly point out that he signed on it subsequently and not at the time of execution of [ENTITY]. Thus this witness PW-3 is not a reliable attesting witness of the [ENTITY]. Further more if the signatures of deceased in Urdu on both pages are minutely seen then it can be said that both have lot of differences. The possibility of combining two different pages of [ENTITY] or replacing one page of [ENTITY] cannot be ruled out.
PW-3 stated that [ENTITY] was already written when he reached house of petitioner. PW-1 stated that [ENTITY] was written by Sh. [ENTITY] advocate cum Notary Public but actually it was drafted by Sh. [ENTITY], advocate. Non examination of Sh. [ENTITY] or Sh. [ENTITY] is fatal to the case of petitioner due to discrepancies occurred above. The version of PW-1 that [ENTITY] was written by advocate in his own handwriting at the dictation of the deceased and lateron it was read over to deceased also cannot be believed. No explanation has come how and in which manner the alleged thumb impression of the deceased came on the [ENTITY] when in this regard nothing is deposed by PW-1 and PW-3 in their respective affidavits of evidence.
After considering the statements of petitioner and attesting witness, I am of the view that [ENTITY] is surrounded by various suspicious circumstances which could not be clarified and explained by the petitioner so this [ENTITY] Ex. PW1/2 cannot be relied upon and enforced. This [ENTITY] appears to be forged and fabricated so both these issues are decided in favour of respondent and against the petitioner.
Issue no. 3:-
[ENTITY] becomes enforceable from the date of death of testator. Deceased expired on 15-2-1998 whereas the present petition was filed on 8-9-2003 after more then 5 years of his death. Respondent in his objections referred about two civil suits pending between parties in respect of estate of the deceased instituted in the year 1998 and petitioner in reply to these objections have admitted it. RW-1 also in his statement alleged that dispute between him and petitioner had started in the year 1999 which fact is not challenged further. It clearly point out that dispute between petitioner and respondent had already started in respect of properties of the deceased in the year 1998 or 1999 itself. Petitioner admitted that he was present at the time of execution of [ENTITY] which shows that he was in the knowledge of this [ENTITY] since beginning. The right to apply for Probate/Letter of Administration had accrued in favour of petitioner in the year 1998 or 1999 itself just after death of the deceased or atleast when civil suits were instituted. The limitation period had already started from that day to file this petition.
[SECTION] of [ACT] is applicable to the Probate or Letter of Administration proceedings and limitation of filing such petition is three years. In this regard reliance can be placed upon the decision of Supreme Court given in case [PRECEDENT] and [PRECEDENT]. The present petition was filed after more then 5 years of death of deceased or from the date of accrual of right to apply and thus is barred by limitation. Otherwise also when [ENTITY] in question is not found genuine, duly executed and is surrounded by various suspicious circumstances then this petition is liable to be dismissed on merits also. In such situation, there remains no other option except to dismiss the present petition. This issue is decided in favour of respondent and against the petitioner.
Issue no. 4 (Relief):-
In view of the above discussions, it is held that petitioner is not entitled to any relief and his petition is accordingly dismissed. Petitioner is burdened with costs of Rs. 5000/- to be paid to the respondent no. 2. File be consigned to the record room.
. ([ENTITY]) Dt.- 22-3-2010 ADDITIONAL DISTRICT JUDGE