[ENTITY] Vs. [ENTITY] In the Court of Additional District Judge02, South District, Room No. 602, Sixth Floor, Saket Courts Complex, New Delhi In the matter of : PC No. 144/2011 Sh. [ENTITY], Son of late Sh. [ENTITY], R/o C4/95, Safdarjung Development Area, New Delhi. Petitioner Versus 1. [ENTITY] through Deputy Commissioner (South), New Delhi. 2. Sh. [ENTITY], s/o Late Sh. [ENTITY], R/o A18, 3rd Floor, Friends Colony East, New Delhi. 3. Sh. [ENTITY], s/o Late Sh. B.S Modi, R/o R3/25, Raj Nagar, Ghaziabad, UP. 4. Dr. [ENTITY], s/o Late Sh. [ENTITY]. R/o 40, Fitz Roy Avenue, Harborne, Barmingham, U.K. B17 8 RJ. 5. Smt. [ENTITY], w/o late Sh. Rajendar Kumar Modi. 6. Sh. [ENTITY], s/o late Sh. [ENTITY], Both presently residing at: 18, Sukhdev Vihar, New Delhi. 7. Sh. [ENTITY], S/o Sh. [ENTITY]. R/o S48, Panchshila Park, New Delhi. Respondents Date of filing :15.11.2008 Date of Institution :17.02.2011 Decision Reserved on :15.09.2014 Date of Decision :27.09.2014 [CASE NUMBER] [ENTITY] Vs. [ENTITY] JUDGMENT
{on Petition under [SECTION] of the [ACT]) for the grant of probate/letter of administration of the Will dated 20.07.1959 of Sh. [ENTITY]} Petitioner's Case 1.1 Sh. [ENTITY] (since deceased) has six children namely petitioner [ENTITY], respondent no.3 [ENTITY], respondent no. 4 Dr.[ENTITY], respondent no. 7 Sh. [ENTITY] and Sh. [ENTITY] (since deceased, father of respondent no.2) Sh. [ENTITY] (since deceased, husband of respondent no.5 and father of respondent no.6). Sh. [ENTITY] died on 27.06.1973 (his death certificate is now Mark P1), (hereinafter referred as deceased), he was ordinarily residing at Modi Nagar but at the time of death he was at C4/95, Safdarjung Development Area, New Delhi, he was cremated at Gar Ganga, Hapur, UP as per his desire.
1.2 The deceased had four immovable properties viz. (i) House at C4/95, Safdarjung Development Area, New Delhi. (ii) Industrial plot at Sahibabad, having plot No.12, site No.II, Loni Road, Mohan Nagar, Ghaziabad (U.P.). (iii) Factory and land at Railway Road, Nabha Punjab and (iv) Factory building and land bearing No. IP25, Govindpuri, Modignagar, UP.
The deceased had executed Will dated 27.07.1959 (its true typed photocopy is now Mark P2) without accompanying copy of Will and he [ENTITY] Vs. [ENTITY] bequeathed his entire properties in favour of his six sons equally. However the properties located at Nabha, Punjab and Govindpuri Modi Nagar were dealt by the legal hears as per Will and the same has been disposed off. The legal heirs of deceased has also entered into oral agreement/partition dated 10.03.1974 in respect of third property at Safdarjung Development Area, New Delhi and on 20.10.1986 they partitioned the property mutually, they divided it by metes and bound. However it is subject matter of civil suit [CASE NUMBER] before Hon'ble High Court of Delhi.
1.3 The remaining property at Sahibabad, Loni Road, Mohan Nagar, Ghaziabad, UP was not the subject matter of oral partition, therefore, it is liable to be transferred in the name of all the brothers/legal heirs of the deceased in equal share and the present petition has been filed for probate/ letter of administration on the basis of said Will in respect of this property. 1.4 There is no legal impediment to allow the petition. The deceased was ordinarily residing at Delhi and he also died at Delhi, therefore, the court has jurisdiction to entertain and allow the petition.
Respondents' Case 2.1 The citation was published in the [ENTITY]sman dated 24.01.2009 besides its publication in the court complex, however, no one came forward from the general public/[ENTITY]/respondent no.1 to participate in the proceedings. 2.2 The citation was also served on the other respondents. The respondent no.2, the respondents no. 5 and 6 and respondent no. 7 filed their separate objections/reply to the petition, but the common substances is [ENTITY] Vs. [ENTITY] that petition has been filed by suppressing the material facts. The subject matter of probate petition is pending before Hon'ble High Court of Delhi in [CASE NUMBER], which was filed prior to the probate petition. Moreover, petitioner [ENTITY], respondent no. 3 Sh. [ENTITY] and respondent no. 4 Dr. [ENTITY] relinquished their right, interest, title in favour of three namely Sh. [ENTITY] (predecessor of respondent no. 5 and 6), Sh. [ENTITY] (predecessor of respondent no. 2 ) and Sh. [ENTITY], (respondent no. 7) but this fact has been with held by the petitioner. The petitioner has no right in the subject matter of the probate petition and petition is liable to be dismissed, also on the doctrine of estoppel. Moreover, the subject property has also been transferred in favour of Sh.[ENTITY], [ENTITY] and Sh. [ENTITY] with the approval and permission of UPSIDC. It has been subdivided and transferred to 59 persons. It was a lease hold property. But there was no oral agreement/partition on 10.03.1974 nor any division of property on 20.10.1986. The petition is malafide and it is liable to be dismissed. However, it is matter of record with regard to properties of Sh. [ENTITY] and his demise.
2.3 Whereas the petitioner filed a common rejoinder/replication to the separate objections of respondents no.2, 5 & 6 and of respondent no.7. The petition is reiterated as correct. It is explained that there is no concealment of any fact, there is mentioning of civil suit pending before Hon'ble High Court of Delhi, the suit was filed by respondent no.5, 6 &7. The suit is in respect of [ENTITY] Vs. [ENTITY] partition of property No. C4/95, Safdarjung Development Area, New Delhi, and for permanent injunction. Neither the property has been transferred in the name of anyone nor it is subdivided in the name of 59 persons nor there is any approval of UPSIDC. In case, it is transferred, without prejudice, the same is illegal and at the back of petition.
2.4 The other respondents no.3 and 4 have not filed there reply nor they appeared despite service of citation, they were proceeded exparte. Issues
3. From the pleadings of the parties following issues were framed by Ld. Predecessor:
1. Whether the deceased has executed a legal and valid Will?
2. Whether the plaintiff is entitled to prayer made in the present petition?
3. Relief.
4. In order to establish the issues the petitioner was given opportunity to lead evidence, the case was adjourned number of times, from 27.10.2010 and it was last opportunity on 17.02.2011; there was request that there could be letter of administration, straightway, without leading evidence. Lastly, PW1 Sh. [ENTITY] entered into the witness box. He was examined in chief on 04.03.2011 and he was also partly cross examined on 04.03.2011, then on 29.04.2011 and 24.11.2011. During the pending of this case for petitioner's evidence, the parties got referred to Delhi High Court Mediation and Conciliation Centre, pursuant to referral order in other case, wherein the petitioner, the respondent no.2,4, 5 & 7 entered into settlement [ENTITY] Vs. [ENTITY] agreement dated 28.02.2013 and they resolved their disputes amicably, the said settlement dated 28.02.2013 (now Ex.A1) has been tendered. During the phase of petitioner evidence, the respondent no.2,5, 6 &7 gave their joint statement on 03.03.2014 and tendered their respective affidavits (Ex.A2 to Ex.A5) along with settlement Ex.A1.
The case was again posted for petitioner appearance, statement and evidence, but for want of appearance of petitioner it was directed on 02.05.2014 that cost of Rs.15,000/will be imposed. Again on 31.05.2014, petitioner/PW1 failed to appear and application for exemption was filed vis a vis that no evidence is to be led by the petitioner nor he intends to step into the witness box. [ENTITY]ment of counsel was recorded and petitioner closed his evidence. In view of statement by the respondent no. 2, 5 & 6 and respondent no. 7, no evidence was led by them; the case was put for final hearing.
Final hearing
5. Sh. [ENTITY], counsel for the petitioner advanced final arguments. He submits that it is a plain case of petitioner, there is no dispute of property of the deceased, the Will left by the deceased, legal heirs of the deceased as well as the settlement arrived before Delhi High Court Mediation and Conciliation Centre and by virtue of clause 17 of settlement agreement it was agreed that there would be no objection to grant probate in respect of the Will of the deceased, the respondent no. 2, 5 & 6 and respondent no. 7 have also given their statement to the court. On 29.04.2011 [ENTITY] Vs. [ENTITY] the petitioner has also placed on record certified copy of Will, it suffices the requirement of law. In "[PRECEDENT], it was held that certificate issued by the Registrar is to some extent an evidence of the execution of the document and the admission of signature before the Registrar by the executant can form an evidence of the execution of the document. The execution of Will can also be proved by approved circumstantial evidence. Further reliance is placed on [PRECEDENT] (this case law is filed today), wherein it was held that law is well settled. Once the Will is registered, there is presumption of its genuineness until and unless there are very strong reasons which create doubts about its execution or it suffers from some lacuna which is provided by law for execution of a valid Will. The petition satisfies requirement of law and petitioner is entitled for letter of administration.
Findings 6.1 The contentions are assessed, in the light of facts, features, evidence and material on record vis a vis statutory provisions of law and the precedent/case law. Now the issues are taken.
6.2 Issue no.1 and 2 :
1. Whether the deceased has executed a legal and valid Will?
2. Whether the plaintiff is entitled to prayer made in the present petition?
Since both the issues are related with each other, as findings on issue no.1 may have consequences with the result of issue no.2, therefore, [ENTITY] Vs. [ENTITY] because of common discussion, the issues are taken together. 6.3 Because of the features of case as well as developments taken during pending of petition, it requires to reproduce the statutory provisions of law in respect of proof of Will, which are enshrined in [SECTION] of [ACT] and u/[SECTION] of [ACT], besides law with regard to proof of Will. The same are reproduced hereunder :
(a) [SECTION] of [ACT]: Execution of unprivileged Wills Every testator, not being a soldier employed in an expedition or engaged in actual warfare, (or an airman so employed or engaged) or a mariner at sea, shall execute his Will according to the following rules:
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other persons in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(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 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.
(b) [SECTION] of [ACT]: 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 [ENTITY] Vs. [ENTITY] 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 [ACT], unless its execution by the person by whom it purports to have been executed is specifically denied.
(c) "[PRECEDENT] held, a Will is required to be attested by two or more witnesses each of whom has seen the Testator signing or affixing his mark on the Will or has seen some other persons signing the Will in the presence and by the direction of the Testator or has received from the Testator a personal acknowledgment of the signature or mark or his signature or the signature of such other person and that each of the witnesses the Will in the presence of the Testator.
(d) '[PRECEDENT] held that: "the requirement of proof of a Will is the same as any other document excepting that the evidence tendered in proof of a Will should additionally satisfy the requirement of [SECTION] of the [ACT] and [SECTION] of the [ACT]. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the Court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the Will was duly executed by the testator, then the factum of execution of Will shall be said to have been proved."
(e) [PRECEDENT], held since [SECTION] of [ACT] requires a Will to be attested, it cannot be used as evidence, until, as required by [SECTION] of the [ACT], one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process [ENTITY] Vs. [ENTITY] of the court and capable of giving evidence.
6.4 Now by reading the facts, evidence and law together, it is apparent that for proof of Will, the special provision of [ACT] are to be read with [ACT]. The following conclusions are drawn:
(i) Admissibility of a document is a condition precedent for proof of document. To say, first of all the document is to be admissible and then it is to be proved.
(ii) Typed true copy is Mark P2, neither copy of Will nor certified copy of the Will was filed during evidence of PW1 nor any witness has been produced who is related with the Will. The petitioner had just placed on file certified copy of Will, it has not been proved in terms of [SECTION] of [ACT].
(iii) The Will Mark P2 is a typed copy, it does not bear signature of any one (either of testator or of witnesses), thus Will has also not been proved. There is no whisper in petition or statement of PW1 about original Will. Moreover, typed true copy Mark P2 is not supported by copy of Will, to cull out signature of testator and of witnesses. It has also not been proved that Will was signed or bore signature of testator and of witnesses.
(iv) There is no dispute that certified copy of a document or of Will is admissible in evidence but admissibility of a document would not dispense with proof of the document or Will.
To say, the petitioner failed to comply the requirement of [SECTION] of [ACT] r/w [SECTION] of the [ACT], which are to be read together in respect of proof of Will.
(v) From the inception, the petitioner was given repeated adjournment to enter into the witness box, inclusive of last opportunity and there was request [ENTITY] Vs. [ENTITY] that there could be straightway letter of administration without leading evidence because the Will is not disputed. Subsequently, there was also settlement through Mediation Center, Delhi, that settlement dt.28.02.2013, Ex.A1, is also on record and after this settlement again petitioner was given opportunity to lead further evidence, since requirement of law for proof of Will is to be met out. The petitioner did not appear in the witness box again nor got examined any witness in respect of proof of Will but closed the evidence.
(vi) Settlement between the parties to the petition or with the others would also not dispense with proof of Will, since it is requirement of law, being special piece of legislation of the [ACT] and also special provision for proof of Will as per [SECTION] of [ACT].
(vii) Merely filing of document in support of pleadings would not tantamount to either admissibility of document or its proof, the certified copy of Will was filed but it would not tantamount to proof of Will. 6.5 In view of the conclusions drawn in paragraph no.6.4 above, it is held that petitioner could not prove Will in the present petition for letter of administration, therefore, both the issues no.1 and 2 are decided against the petitioner.
6.6 Issue no.3: Relief.
In view of the findings given on issues no.1 and 2 above, the petition is dismissed.
File be consigned to record room.
Announced in the open Court ([ENTITY]) on Asvina 5, Saka, 1936 Addl District Judge02 (S) Saket, Delhi. 27.9.2014