1 In the court of [ENTITY], Additional District Judge-05, West District, Tis Hazari Courts, Delhi. Shri Bhagwan vs State & others (PC no. 89/06/03) Date of filing of petition 2-12-2003 Date of decision 22-3-2010 (Petition u/s 276 of [ACT] for grant of Probate) JUDGMENT:
Petitioner filed the present petition for grant of probate on the basis of registered [ENTITY] of his mother Smt. [ENTITY] (herein after referred to as deceased) dated 17-12-1998 in respect of her immovable property bearing no. RZ-511A, Khasra no. 58/13/2 situated in extended abadi of village Palam, Dada Dev Road, New Delhi. Deceased expired on 7-5-1999 leaving behind two sons and four daughters. The case was only contested by respondent no. 2 Shri [ENTITY] though he did not file any objections despite taking various opportunities whereas other respondents became exparte. The value of property in question was given at Rs. 7,36,560/- by Tehsildar, Palam.
In absence of any objections filed by respondent no. 2, no question arose to frame any issues. In order to prove his case, petitioner examined himself as PW-1, Sh. [ENTITY] LDC from office of Sub- Registrar to prove registration of [ENTITY] as PW-2 and Sh. [ENTITY], attesting witness of [ENTITY] as PW-3. Respondent [ENTITY] filed and tendered his affidavit of evidence as RW-1 but he did not turn up for his cross examination so his evidence was closed and the incomplete statement of respondent RW-1 cannot be read in evidence. Counsel for both parties did not appear to argue on the case nor filed any written submissions despite giving time.
The [ENTITY] propounded by petitioner dated 17-12-1998 is Ex. PW2/A. It was executed by the deceased and is allegedly bearing her thumb impression. It is English typed [ENTITY] of single page and attested by Sh. [ENTITY] PW-3 and one advocate Sh. [ENTITY]. PW-2 proved registration of this [ENTITY] in his office. Mere fact that PW-2 had no personal knowledge of the registration of this [ENTITY] is of no consequences as he deposed on basis of record. Registration of [ENTITY] attaches presumption of due execution by the testator after understanding its contents in sound disposing mind without any pressure or influence.
Respondent tried to challenge the ownership and title of the deceased qua the property in question but in the Probate proceedings, question of right, title and ownership of the deceased 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 property 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 property allegedly not belonging to her. 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 raised by the respondent that the deceased was not the owner of the property or it belonged to her husband Sh. [ENTITY] are irrelevant to this proceeding.
Respondent relied upon one [ENTITY] dated 2-12-1997 executed by Sh. [ENTITY] in his favour in respect of the property in question. His separate Probate petition in respect of that [ENTITY] has been dismissed as that [ENTITY] is found surrounded by various suspicious circumstances.
In this case, PW-3 proved how and in which manner the [ENTITY] was executed. He proved the due execution of the [ENTITY] as per provisions of [SECTION] of [ACT]. Though at one stage from the testimony of PW-3 it becomes doubtful whether the affidavit of his examination in chief was prepared according to his instructions or not but when he tendered the same in court by stating that he had signed the same after understanding its contents, then his affidavit has to be read in evidence. Nothing material in favour of respondent has come on record from the cross examination of PW-3. After going through the statement of petitioner PW-1 and attesting witness of the [ENTITY] PW-3, I find no suspicious circumstances on record to create doubt about the genuineness and validity of the [ENTITY] in question. PW-3 has specifically stated that deceased had put her thumb impression on the [ENTITY] after understanding its contents and advocate who had drafted the [ENTITY] at instructions of the deceased had read over the same in vernacular language. This version of PW-3 has remained unchallenged in his cross examination. Mere fact that witness could not remember the name of advocate who drafted the [ENTITY] or khasra no. upon which the property in question is situated or whether deceased put her right or left thumb impression etc. are not sufficient to discard his statement as it is natural that memory fades with the passage of time and a person is not able to remember minor facts after lapse of few years.
Respondent tried to challenge the mental status of the deceased in the cross examination of PW-3 but failed. He had not brought on record any document to show that deceased was incapacitated to execute [ENTITY] due to insufficient proper mental status. Infact I do not find any ground to impeach the credibility of statement of attesting witness of the [ENTITY]. Hence [ENTITY] in question is said to have been duly executed and is proved on record to be genuine and valid.
[ENTITY] becomes enforceable from the date of death of testator. Deceased expired on 7-5-1999 whereas the present petition was filed on 2-12-2003 after more then 4 years of her death. In this matter, respondent once filed an application under [SECTION] [ACT] on 4-2-2006 and petitioner filed reply of the same. From the contents of the application and reply, it has come on record that dispute between parties in respect of the bequeathed property had already started in the year 1998. Petitioner and deceased had filed a suit for partition of the property in question in the High Court bearing [CASE NUMBER] and after death of deceased, petitioner moved an application for substitution of her legal heirs. One another suit for injunction also started between parties in the year 1998 itself in the court of Civil Judge. These facts clearly point out that dispute between petitioner and respondent had already started in respect of property in question in the year 1998. There is no dispute of the fact that petitioner knew about the [ENTITY] in question since beginning. The right to apply for Probate/Letter of Administration had accrued in favour of petitioner just after death of his mother. 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 4 years of death of deceased when right to apply accrued and thus is barred by limitation. Hence this petition is liable to be dismissed even if [ENTITY] is proved to be duly executed and petitioner is not entitled to any relief. Accordingly present petition is dismissed. File be consigned to record room.
. ([ENTITY]) Dt.- 22-3-2010 ADDITIONAL DISTRICT JUDGE