CS (OS) No. 1199 of 2006 Page 1 of 28 IN THE HIGH COURT OF DELHI AT NEW DELHI CS (OS) No. 1199 of 2006 Reserved on: September 13, 2013 Decision on: October 29, 2013 SANTOSH DUTTA ..... Plaintiff Through: Mr. S.K. Bhaduri, Advocate. versus SURENDER KRISHAN BALI & ANR. .....Defendants Through: Mr. Suhail Dutt, Senior Advocate with Mr. N.K. Kantawala, Mr. Ritesh Mehra and Mr. Sankalp Goswami, Advocates for Defendant No.1. Mr. Prag Chawla, Advocate for Defendants 2 and 3. CORAM: JUSTICE S. MURALIDHAR JUDGMENT 29.10.2013 1. The present suit was filed on 29th August 2005 by late Smt. Santosh Dutta, daughter of late Shri Bal Krishan Bali and late Smt. Kaushalya Bali (now represented by her legal representatives (LRs) against her siblings Shri Surender Krishan Bali, Defendant No.1, Yogesh Ahuja, Defendant No.2 and Smt. Anju, Defendant No.3 (both of whom are the children of her deceased sister Smt. Kailash Ahuja and are residing in the United States of America). The relief sought in the suit is for seeking declaration of her 1/3rd share in the suit property at C-9/2, Vasant Vihar, New Delhi and for a preliminary and CS (OS) No. 1199 of 2006 Page 2 of 28 final decree of partition, possession, rendition of accounts and permanent injunction in respect of the suit property. 2. The facts in brief are that the deceased Plaintiff is the eldest daughter of late Shri Bal Krishan Bali who expired on 27th November 1991 and Smt. Kaushalya Bali who expired on 20th October 2003. While according to the Plaintiff both her parents died intestate, the case of Defendant No.1 is that each of them left a Will. He claims that late Shri Bal Krishan Bali left a Will dated 18th April 1988 and Smt. Kaushalya Bali left a Will dated 28th October 1999. The Plaintiff expired on 26th December 2007. She is stated to have executed a Will dated 23rd July 2007 in favour of her son Shri Ashwani Kumar Dutta. The other LRs of the Plaintiff were impleaded as Defendants but have not appeared. 3. While directing summons to be issued in the suit on 31st August 2005, the Court restrained Defendant No.1 from selling, alienating or creating any third party interest in respect of the suit property. Thereafter interlocutory orders have been passed permitting the Defendant No.1 to let out portions of the suit property. The terms and stipulations of such lease deeds have been set out in the orders dated 25th September 2007 and 13th January 2010. Defendant No.1 was directed to place on record the copy of the lease deed, file quarterly accounts of the rent collected and expenses incurred. It was further directed that in the event the Plaintiff succeeded in the suit, she would CS (OS) No. 1199 of 2006 Page 3 of 28 be entitled to the share of the rent and to that extent there shall be a charge on the share of Defendant No.1. 4. Attempts at mediation during the pendency of the suit failed. On 25th September 2007, the following issues were framed in the suit: (1) Whether late Shri B.K. Bali executed a legal and valid Will dated 18th April 1988? OPD-1 (2) Whether late Shrimati Kaushalya Devi executed a legal and valid Will dated 28th October 1999? OPD-1 (3) If Issue Nos. 1 and 2 are answered in favour of the Plaintiff, what is the share of the parties in the suit property? Onus on the parties. (4) Relief. 5. On behalf of the Defendant No.1 the following witnesses were examined: (i) Surender Krishan Bali (DW-1) (ii) Smt. Neelam Chawla (DW-2) (iii) Vinod Kumar, Record Clerk from the office of Sub-Registrar (DW-3) (iv) Shri S.C. Dewan (DW-4) CS (OS) No. 1199 of 2006 Page 4 of 28 (v) Shri Ramesh Vohra (DW-5) (vi) Shri Rajan Mittal (DW-6) (vii) Shri Gopal Aggarwal, Sub-Registrar-III, Asaf Ali Road, New Delhi (also wrongly numbered as DW-6) (viii) Shri Nagender Prashad, Assistant Cooperative Society Branch, Delhi Development Authority (DW-7) (ix) Shri Diwan Singh, Officer from Punjab National Bank, Connaught Place, New Delhi (DW-8). 6. On behalf of the Plaintiff, Shri Ashwani Kumar Dutta was examined as PW-1and Shri Arun Kumar as PW-2. Issue No. (1): Whether late Shri B.K. Bali executed a legal and valid Will dated 18th April 1988? 7. The Court first takes up Issue No.1 concerning the validity of the Will dated 18th April 1988 of late Shri Bal Krishan Bali. The said Will reads as under: “This is the last will of me, B.K. Bali, aged 78 years, resident of C-9/2 Vasant Vihar, New Delhi, made on this 18th day of April, 1988. 2. I hereby revoke all former wills and codicils made by me. 3. I appoint Shrimati Kaushalya Bali, my wife, resident of C-9/2, Vasant Vihar, New Delhi, as the sole CS (OS) No. 1199 of 2006 Page 5 of 28 executor of this my will. If for any reason she is unable to act as executor of this my will, in that event Shri S.K. Bali, my son, at present residing at 9 Silver Sands, Juhu Park, Road, Bombay will act as my executor of this my will. 4. I own along with my wife Smt. Kaushalya Bali a double-storied house No. C-9/2 Vasant Vihar, New Delhi-110057, built on a plot of land measuring 400 sq. yards, which is my wholly self-acquired property. I hereby bequeath the aforesaid built house to my wife, Shrimati Kaushalya Bali for life without any power of alienation and after her death to my son, Shri S.K. Bali, at present residing at 9 Silver Sands, Juhu Park Road, Bombay-400049. He has helped me financially in the construction of the house. 5. I have two daughters, viz. (1) Mrs. Santosh Datta, wife of late Shri Chand Narain Datta, residing at 30/23 East Patel Nagar, New Delhi, and (2) Mrs. Kailash Ahuja, wife of Shri Pratap Ahuja, at present residing at 1412 Meander Drive, Naperville, I L 60656, USA. I bequeath national savings certificates of the value of Rs.15,500/- (Rupees fifteen thousand and five hundred only) to my daughter Mrs. Santosh Datta and national savings certificates of the value of Rs.15,200 (Rupees fifteen thousand and two hundred only) to my daughter Mrs. Kailash Ahuja, which had been purchased by me from time to time in my own name but on which I have nominated my daughters separately as my nominees. On my demise my daughters will be entitled to receive the proceeds of these certificates to themselves as their property. My wife and son will not have any claim or right to share the proceeds of these national savings certificates. 6. I also bequeath all my money and other property, movable and immovable, whatsoever and wheresoever, CS (OS) No. 1199 of 2006 Page 6 of 28 not otherwise disposed of specifically by this will to my wife, Shrimati Kaushalya Bali. In witness whereof, I the said, B.K. Bali, have put my signature to this my will on the day and the year first above written i.e. the 18th day of April, 1988. Sd/- (B.K. Bali) Testator Signed by the above testator in our presence at the same time and each of us has in the presence of the testator signed as the attesting witnesses. “Drafted by me Sd/- (B.K.Bali) 1. Sd/-B.P. Mittal B-8/1 Vasant Vihar, New Delhi 110057 2. Sd/- Jiwan Das A-11/3 Vasant Vihar, New Delhi 110057 ” 8. The original of the above Will has been exhibited as DW-1/1. In para 4 the words “along with my wife Smt. Kaushalya Bali” has been handwritten by insertion above the typed words, “I own” and marked A to A and there are the initials of Mr. B.K. Bali on the left hand margin. Above the words ‘B.K. Bali, Testator’ there is the signature of Shri B.K.Bali and marked as ‘Point A’. By the side of the typed letter there are hand written words “drafted by me”. The signature of the first attesting witness Shri B.P. Mittal is at ‘Point X’ and of the second witness at ‘Point C’. The reverse page of the Will has several endorsements. On the top of left hand corner there are handwritten words “document signed at residence on medical ground”. The second is a rubber stamp with the handwritten words being filled and CS (OS) No. 1199 of 2006 Page 7 of 28 signed by the Sub-Registrar with the date of 25th April 1988. It also bears the signature of Shri B.K. Bali. The second endorsement contains his registration number details and has the signature of the Sub-Registrar. Below that in a single line there are three signatures. The one on the left is of Shri B.K.Bali, the middle of Shri Jeewan Das and the one in the right purportedly of Shri B.P. Mittal. The bottom of the reverse page of the Will contains another rubber stamp of the Sub-Registrar with the date 4th May 1988. There is a handwritten endorsement alongside the said rubber stamp in black ink signed with date of 25th April 1988 stating: “Addition on Page No.I Clause No.4 is attested by the parties”. 9. The case of Defendant No.1, as stated in his affidavit of examination-in-chief is that Shri B.K.Bali executed the aforementioned Will on 18th April 1988 and it was duly registered in the office of the Sub-Registrar and that Shri Jeevan Das and Shri B.P.Mittal were the attesting witnesses to the Will. 10. The Will is sought to be assailed as to its genuineness both by the Plaintiff as well as Defendants 2 and 3 on several grounds. It is submitted that under Section 63(c) of the Indian Succession Act, 1925 (‘ISA’), the Will is required to 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. One of the witnesses, Shri Jeevan Das, was not examined but his son Shri S.C.Dewan was examined. CS (OS) No. 1199 of 2006 Page 8 of 28 According to the Plaintiff, Shri Dewan did not bring any authenticated document signed by Shri Jeevan Das so as to verify the signatures of Shri Jeevan Das. To prove the signature of the other attesting witness Shri B.P. Mittal, his grandson Shri Rajan Mittal was examined. His evidence has also been criticised by the counsel for the Plaintiff and Defendants 2 and 3 on similar grounds. 11. It is submitted by the Plaintiff and Defendants 2 and 3 that there are differences between the copy of the Will as provided to the Delhi Development Authority (‘DDA’) by Defendant No.1 for the purpose of mutation. The said copy was purportedly a certified true copy and has also been exhibited as Exhibit DW-7/2. It is pointed out that there are material differences in the endorsements on the reverse of the certified copy of the Will submitted to the DDA and those on the alleged original Will. Further, the handwritten portions on the first page of the certified copy of the Will differed when compared with the original Will. Further, there are several dates that figure on the body of the Will. The first paragraph states that it is made on 18th April 1988. The endorsement on the reverse shows two dates i.e. 25th April 1988 as well as 4th May 1988. The third date is 22nd April 1988 as shown in the peshi register brought by Shri Vinod Kumar, Record Clerk from the Office of Sub-Registrar at Asaf Ali Road, New Delhi. It is accordingly submitted that there are several suspicious circumstances that cast grave doubts on the genuineness of the Will. 12. The further ground of attack is that the endorsement on the CS (OS) No. 1199 of 2006 Page 9 of 28 reverse of the Will that the document was signed at the residence on medical ground proves that the testator late Shri B.K. Bali was not in a sound state of mind and was not even physically fit to go to the office of the Sub-Registrar. No medical witness has been examined to prove the sound state of mind of the testator. It is submitted that the original Will could not be located in the office of the Sub-Registrar and only the peshi register was brought. This by itself indicates that the Will was perhaps not even registered. The other defect pointed out is that the extent of the suit property mentioned is 400 sq. yds whereas it is actually 420 sq. yards. 13. Before examining the above submissions, it is necessary to notice the relevant statutory provisions. Under Section 3 of the Transfer of Property Act, 1882 the word ‘attested’ has been defined as under: "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.” 14. Section 63(c) of the ISA reads as under: “The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his CS (OS) No. 1199 of 2006 Page 10 of 28 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”. 15. Under Section 68 of the Indian Evidence Act, 1872 (‘IE Act’) at least one attesting witness has to be called for the purposes of proving the execution of the document, if such attesting witness is alive. The proviso to Section 68 makes it clear that where the document in question is a Will, then examination of one attesting witness is essential. Section 69 IE Act talks of the situation where no attesting witness can be found. It reads as under: “If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.” 16. 1 Before proceeding to analyse the evidence in the present case, the law as explained in the decisions of the Supreme Court may be noticed. In H. Venkatachala Iyengar v. B.N. Thimmajamma 1959 Supp (1) SCR 426, it was observed (SCR, para 18): “What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The CS (OS) No. 1199 of 2006 Page 11 of 28 party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such handwriting under sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether they will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he CS (OS) No. 1199 of 2006 Page 12 of 28 understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.” 16.2 The Supreme Court further noted (SCR, para 20) that: “The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator” Further, the Court stated (SCR, para 21): “…in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.” 17. The aforementioned principles have been reiterated in Bharpur Singh. v. Shamsher Singh (2009) 3 SCC 687 as well as Benga Behera. v. Braja Kishore Nanda (2007) 9 SCC 72. 18. In the present case, admittedly, both attesting witnesses to the CS (OS) No. 1199 of 2006 Page 13 of 28 Will of late Shri B.K.Bali expired prior to the trial. Defendant No.1 examined Shri Rajan Mittal grandson of late Shri B.P. Mittal. The relevant portion of his affidavit of examination-in-chief reads as under: “That late Sh. B.P. Mittal expired on 5th May 1994 and the deponent was major at that stage and had seen his grandfather’s writing and signing and also recognise his signature and the deponent has seen the Will executed as Ex.DW-1/1 and signature appearing on the Will are in the knowledge of the grandfather of the deponent and the same are appearing at point ‘C’ and ‘D’ on the Will Ex. DW-1/1.” 19. In the cross-examination Shri Rajan Mittal admitted that his grandfather had not put his signature on the Will in his presence but that he knew Shri B.K. Bali and that he also knew Shri Jeevan Das. He clearly states that “I have seen the Will exhibit DW-1/1 and it bears the signature of my grandfather only at one place at point ‘X’.” Although he did not bring any document bearing the signature of his grandfather, he was very clear that the signature on the Will in the witness column was that of his grandfather. Nothing significant has been elicited in his cross-examination to discredit the evidence of Shri Rajan Mittal. Being the grandson of the attesting witness, it is likely that he recognizes the signature. 20. Shri S.C. Dewan son of Shri Jeevan Das was examined as DW-4. In his affidavit of examination-in-chief dated 13th November 2007 he stated in paras 2 to 5 as under: CS (OS) No. 1199 of 2006 Page 14 of 28 “2. That late Shri Jeewan Dass was the witness who signed on the Will dated 18th April 1988 executed by Shri B.K. Bali s/o Shri Amar Nath Bali r/o C-9/2, Vasant Vihar, New Delhi-110057. 3. That the deponent’s father was the signatory of the Will before the Registrar and solemnly state that the signatures appearing on the Will Ex.DW-1/1 is the signature of the father of the deponent and he has signed the Will at point ‘A’ and ‘B’. 4. That the deponent is well conversant with the handwriting of the father of the deponent and as such he can verify the signature of the father of the deponent. 5. That the deponent had seen his father’s writing and signing.” 21. The cross-examination of Shri Dewan did not yield anything that could discredit the truth of the above statements made by him on affidavit. He clearly stated that “signature at point ‘C’ at DW-1/1 are that of my grandfather Shri Jeevan Das”. He denied the suggestion to the contrary. 22. The requirement in law, on a collective reading of Section 63(c) ISA and Section 69 IE Act, is only that where neither of the witnesses is available for examination then the evidence of a person who is able to prove the signatures of the attesting witness would be sufficient. Such person should be able to show that the attestation is the handwriting of the attesting witness. Secondly, it must be shown that the signature of the person executing the document is in the CS (OS) No. 1199 of 2006 Page 15 of 28 handwriting of that person. As far as the first requirement is concerned, both Shri Rajan Mittal and Shri S.C. Dewan have been able to prove the signatures of the attesting witnesses Shri B.P.Mittal and Shri Jeevan Das respectively. As far as the second requirement is concerned, the signatures per se of Shri B.K. Bali on the Will are not in doubt. Although under Section 18(e) of the Registration Act, 1908 a Will is not compulsorily registrable, the fact that the Will of Shri B.K.Bali is registered lends it a greater weight as to the presumption of genuineness of his signature. 23. The discrepancies pointed out between the certified copy of the Will furnished to the DDA and that produced as the original Will before the Court can possibly be explained by the requirement at the relevant time by person executing documents to do so simultaneously in duplicate. This is traceable to Section 52 of the Registration Act which reads as under: “(1) (a) The day, hour and place of presentation, the photographs and finger prints affixed under Section 32A, and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it; (b) A