FAO 124/2009 Page 1 of 14 * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO 124/2009 Reserved on : 25.11.2010 Date of Decision :02.12.2010 MADAN MOHAN ..... Appellant Through Mr. Rakesh Mahajan, Mr. Abhay Mani Tripathi, Advs. versus JAWAHAR LAL & ANR ... Respondents Through Mr. K.K. Srivastava, Adv. for R-1,4 & 6 Mr. R.K. Bedi, Adv. for R-2. CORAM: HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? : MOOL CHAND GARG,J 1. The lis subject matter of this appeal revolves around two Wills, one dated 23-09-1973 (hereinafter referred as „first Will‟) and the other dated 17-11-1986 (hereinafter referred to as the „second Will‟) both allegedly executed by deceased Smt. Roop Rani, who was the mother of Late Sh. Ajudhia Prakash and Jawahar Lal. Both the Wills are registered. Both sides have filed separate probate petitions with respect to their respective Wills and both are opposing grant of probate to each other. 2. After framing of issues, evidence was led by both the sides. Evidence of handwriting expert and finger print experts was also recorded. After conclusion of evidence and hearing the parties, the learned ADJ observing that both the Wills were executed by Late Smt. Roop Rani and both were registered held that the Will dated 17.11.1986 being later in time and proved as a valid and genuine Will, granted probate with respect to the second Will in favour of the respondents and dismissed the probate petition filed by Late Sh. Ajudhia Prakash, now represented by the present appellant as his son/legal heir seeking probate of first Will. It is this order dated 17.11.2008 of the learned ADJ which is impugned in this appeal. 3. According to the appellant, the second Will allegedly executed by Late Smt. Roop Rani is not a valid and genuine will and is surrounded by various suspicious circumstances. He relies upon the the first will and FAO 124/2009 Page 2 of 14 prays that the order passed by the learned ADJ be set aside and probated be granted in his favour on the basis of the Will dated 23.09.1973. 4. On the other hand, the respondents support the judgment of the learned ADJ and submit that since the Will dated 17.11.1986 was a later Will which was also duly registered and which stands proved to have been executed by Late Smt. Roop Rani while having a sound and disposing mind, the appeal should be dismissed. 5. Brief factual matrix of the case are that Smt. Roop Rani, wife of Sh. Jugal Kishore was the owner of the 40% share in the property bearing No. 2051-2056, Ward No. 5, Kinari Bazar, Delhi. She died on 22-11-1990. At the time of her death, she left behind four sons and three daughters besides her husband. Appellant, Sh. Ajudhia Prakash, who is one of the sons of the deceased, filed probate petition bearing No 122/08/91 for grant of probate claiming to be a beneficiary under Will dated 23.09.1973. On the other hand Sh. Jugal Kishore, husband of the deceased and respondent, another son of the deceased while admitting the execution of the first will contested the petition filed by Late Sh. Ajudhia Prakash on the ground that Late Smt. Roop Rani had executed another registered will dated 17-11-1986 hence the first will cannot be given any effect. 6. At the stage of framing of issues, both the petitions were consolidated and evidences were ordered to be recorded in common. On the basis of pleadings of the parties in both the cases, following issues were framed. “1. Whether the Will dated 17.11.1986 propounded by the petitioner Sh.Jawahar Lal is the last and genuine Will of Late Smt. Roop Rani wife of Shri Jugal Kishore and was it duly executed by her while she was in sound disposing mind? 2. If issue no. 1 herein above is decided in negative then whether the earlier Will dated 23.09.1973 propounded by the objector Sh.Ajudhia Parkash in PC No.101/94 (old number ) is the last and genuine Will of the deceased Smt.Roop Rani wife of Sh.Jugal Kishore and was it duly executed by her while she was in sound disposing mind? 3. Relief.” 7. It may be observed here that even though parties were litigating regarding the execution of the Will by Late Smt. Roop Rani but factually, none of the parties were seriously contesting the execution of the Will in question, even though, the appellant has taken a stand that second Will propounded by Sh. Jawahar Lal and others is a forged and fabricated document. FAO 124/2009 Page 3 of 14 8. To prove his case, the appellant examined OW-1, Sh. Sunil Mittal to prove the signatures of one of the deceased attesting witness on the first Will. Sh. Madan Mohan, son/legal heir of Sh. Ajudhia Prakash who is the present appellant stepped into witness box as OW-2. On the written request of the appellant, both the Wills were sent to CFSL for comparison of signatures and thumb impression of the deceased Smt. Roop Rani. Both the reports did not favour appellant. Thereafter, he summoned OW-3 Sh. B.K.Chadha (finger print expert of CFSL) and OW-4 Sh. D.R.Handa (handwriting expert of CFSL) for examination. However, nothing could be brought out in the cross-examination of these witnesses to the support the case of the appellant or to put any suspicion on the case of the respondents, who relied upon the second Will. 9. On the other hand, respondents had examined his son/attorney Sh.V.K. Malhotra as PW-1, Sh. Shatrughan Poddar from office of Sub- Registrar as PW-2 besides PW-3, Sh. Sushil Kumar Ahluwalia, one of the attesting witnesses of the second Will. 10. After recording the evidence, the learned ADJ formed an opinion that none of the parties were in fact, seriously disputing the execution of the two Wills left by Late Smt. Roop Rani. However, the ADJ holding that the Second Will dated 17.11.1986 was proved to have been duly executed by the deceased testatrix, granted probate of the said Will in favour the respondent and also holding that the second Will supersedes the first Will dismissed the first probate petition. 11. The learned ADJ has observed that the second Will exhibit PW-1/3 had signatures and thumb impression of testatrix, it was attested by Sh. Jugal Kishore, husband of the testatrix (since deceased) and Sh. Sushil Kumar Ahluwalia (PW-3) also proved the attestation of the Will and registration thereof on the same day. In view of that, the learned ADJ held that the second Will was free from any suspicious circumstances and since it was later in time, it supersedes the first Will and, therefore, granted probate with respect to the Second Will in favour of the respondent and dismissed the probate petition filed by the appellant qua the first Will. It is against this order passed by the learned ADJ, the appellant has come in appeal before this Court. The appellant has raised following objections which were raised by him in the objections filed to the grant of probate of the Second Will by the respondents. The objections are that:- “i) The Will dated 17.11.1986 is surrounded by suspicious circumstances in as much a s there was a delay of more than one and half years in propounding the will and the records show that Smt. Roop Rani expired on 22.11.1990 FAO 124/2009 Page 4 of 14 while the probate petition was filed by the respondent on 11.05.1992. ii) The deceased Smt. Roop Rani was of advanced age of about 80 years at the time of execution of the will, no medical certificate has been obtained to show that she was of sound and disposing mind at the time of execution of the will. iii) That the only attesting witness PW-3 appearing in this case, nowhere stated that he had put his signatures on the alleged will in the presence of the testatrix and/or the other attesting witness Mr. Jugal Kishore. Also, according to the appellant PW-3 is not a believable witness as he had been changing stands while deposing as a witness in as much as he had stated that “his grandfather was to go to kashmere gate” “for having his will registered”, “the will was signed by him in my presence”. But suddenly he shifts his stand probably on being pegged and says “the will was of grandmother and I had taken both his grandmother and grandfather to Kashmere gate”. Further in chief-examination PW-3 stated that” the Joginder Pal, Advocate also signed in my presence”, but in cross–examination he stated that “I had never met the lawyer of the executant and I do not know the name of the said lawyer” Hence for all this purpose evidence of PW-3 cannot be believed and have to be rejected. iv) That the appellant also raised doubts about the reports given by the finger print expert of CFSL and the handwriting expert in as much as according to the appellant the finger print expert during his cross examination has not ruled out the possibilities of perjury of the finger prints and thumb impressions. In regards to handwriting expert, appellant contends that the report of the handwriting expert cannot be relied upon because he had not adopted any scientific method and has given the report on the surmises and conjectures. v) Appellant had also raised objection that the will dated 17.11.1986 was drafted by Shri. M. Atiq Mirza Beg R/O Room No 3 Jama Masjid Delhi-110006, who was not called in witness box by the respondent.” 12. I have heard the submissions of the parties and have also perused the written synopsis filed by the appellant. 13. A perusal of the judgment goes to show that all the objections have been met by the learned ADJ on the basis of the evidence available on record. It would be relevant to take note of some of the observations made by the learned ADJ in this regard: “The relief to the petitioner cannot be denied merely on the ground that his petition was later in time or counter blast of petition of the respondent or he waited for several months in filing this petition after appearing in the case filed by the respondent. The law of limitation is not applicable in probate proceedings, otherwise also, even if it is presumed that limitation of three years as prescribed under Art 137 of FAO 124/2009 Page 5 of 14 limitation Act is applicable, then also petition filed by the petitioner is within period of limitation to be counted from the date of death of testatrix and is not suffering from any delay or latches. The case law cited by counsel for the respondent titled as Vijay kumar Tiwari Vs State 151(2008)DLT 513 is not applicable in the present facts and circumstance of the case because in that case before High court, the delay was coupled with various suspicious circumstances which is not the position in the present matter.” 14. It may be observed here that the second Will has been propounded by the respondents soon after they received the notice of the first probate petition filed by the appellant. In this regard, reference can be made to paragraph 8 of the second petition filed by the respondents wherein they have stated that: “8. That Shri Ajudhia Parkash, one of the sons of the deceased has filed a petition being Probate Case No.6/1991 for the grant of probate/letter of administration in respect of the aforesaid estate of the deceased on the basis of the Will alleged to have been executed by her on 23.09.1973. The petitioner who has received notice of the said Probate Case is filing separate reply to the said petition of Ajudhia Parkash. ” 15. It is, thus, clear that need for filing the second petition with respect to the later Will arose only after respondents received a notice of the filing of the probate petition by the appellant, who propounded the first Will despite existence of the second Will. 16. It may be observed here that in Delhi normally probate is not required and, therefore, issue of limitation only arises when right to sue arises. Reference in this regard can be made to the judgment delivered by the Supreme Court in the case of Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur, 2008 (TLS) 46042. 17. In this case, right to sue arose in favour of the respondents only when they received the notice of the first probate petition. In any event, the second petition has been filed within three years of the death of the deceased testatrix and, therefore, the issue of limitation has rightly been negated by the learned ADJ. 18. As far as the second objection regarding the testatrix being not of sound and disposing mind at the time of execution of the second Will, it has been observed by the learned ADJ that: “In his objections, respondent has nowhere taken any ground or defence that at the time of alleged execution of the second Will, testatrix Smt. Roop Rani was not having sound disposing mind or was not keeping good health . No medical evidence in this regard is produced by him. The suggestions given to PW-1 regarding illness of testatrix as well as her physically and mentally unwell position which are denied by the witness are FAO 124/2009 Page 6 of 14 contradictory from the pleadings of the respondent so in such circumstances, it is held that on 17-11-1986 when the second Will purported to have been executed, testatrix Smt. Roop Rani was in full senses and was capable to understand the nature of disposition. The arguments raised by counsel for the respondent that deceased was not got examined from any doctor before execution of the Will Ex.PW1/3 has no force as it is not mandatory that Will must bear the certificate of any doctor regarding sound mind position of the testator. Mere old age of testatrix at the time of execution of the second Will is no guarantee that her mental capacity was also affected to such an extent to make her unfit to execute it. Case law cited by counsel for the respondent titled as Satish Chander vs. State AIR 2005 Delhi 125 is totally distinguishable from the facts and circumstances of present case. When there was no defence raised regarding bad physical or mental condition of the testatrix by t he respondent, then no question of producing any medical certificate of fitness arises on the part of the petitioner.”(Respondent referred to herein is Late Sh. Ajudhia Prakash, deceased father of the appellant) 19. As regards the stand taken by the appellant that PW-3 was not a reliable witness, it has been observed by the learned ADJ that the said witness had taken the deceased testatrix along with her husband to the office of Sub-Registrar for the purpose of execution of the Will and its registration. He has categorically deposed that Smt. Roop Rani and Sh. Jugal Kishore signed the Will in his presence as well as in the presence of his lawyer. He also deposed that the Will was in English and interpreted in Hindi by Sh. Joginder Pal. Despite all this, there is no cross-examination of the said witness on the aspect of interpretation of the Will to the testatrix and others. He has also not challenged the factum of PW-3, testatrix and another witness Sh. Jugal Kishore having signed the Will in his presence. No question has been put to the witness on this aspect in his cross-examination. Here also, It would be appropriate to take note of the observations made by the learned ADJ while discussing the testimony of PW-3. It has been stated that: “PW-3 had taken testatrix Smt. Roop Rani and her husband Sh. Jugal Kishore to office of Sub-Registrar for purposes of execution of the Will. According to this witness, both Smt. Roop Rani and Sh. Jugal Kishore signed on the Will in his presence as well as in presence of their lawyer. He also deposed that Will was in English but interpreted in Hindi by the said lawyer. He also identified signatures of testatrix, witness Sh. Jugal Kishore, lawyer Sh. Joginder Pal as well as his own signatures on the second Will. No cross examination of PW-3 was done on the aspect of interpretation of the will to the testatrix and others. Respondent has not challenged the fact stated by this witness that testatrix and another witness Sh. Jugal Kiahore had signed on the will in his presence even by putting any suggestion to the contrary in his cross examination. Similarly there is no cross examination of fact deposed regarding identification of signatures of testatrix and witnesses on the FAO 124/2009 Page 7 of 14 Will. When a particular fact deposed by a witness is not disputed or challenged at all, then is presumed to have been admitted. Accordingly, it is held that tetatrix before execution of the will Ex. Pw 1/3 had understood its contents and nature of disposition. The words uttered by PW-3 that he never met the lawyer of the executant and did not know his name has to be read along with subsequent portion of the cross- examination when he said that he met lawyer first time on examination of the will. From these two portions of the cross execution of the will, he had never met or know the advocate Sh. Joginder Pal. Hence giving of name of this advocate in examination in chief and from picking of one portion of the cross examination regarding having not met the lawyer earlier cannot be said as was contradiction in his statement to disbelieve him. Mere fact that date of -17-11-1986 was given to PW-3 by the counsel or the petitioner in his examination in chief is not sufficient to discard his whole of the statement and to make him unreliable witness. The statement of this witness was recorded in court in year 1999 after a gap of about 13 years of the execution of the will. No one can deny this aspect that memory fades with the passage of time. The will was shown to the witness at the end of his examination in chief. No opportunity was given to him to refresh his memory. Hence in that situation, even if date of execution of the will is given by PW-3 at the suggestion or instance of the advocate of the petitioner at the time of recording of his examination in chief, then it is of no consequence. PW-3 also in response to the question put in the cross examination stated that except four of them , none was present at the time of registration of the Will before Sub-Registrar, Thus fact of appearance before Sub-Registrar for the purposes of registration of the Will is also established and this fact is not disputed further by putting any other question. The Will Ex. PW1/3 is a registered Will. PW-2 has proved its registration as per his office record. Absence of personal knowledge about its registration on the part of PW-2 does not draw presumption that it was not properly or legally registered as per provisions of Indian Registration Act. The document which is registered draws a presumption of its due execution. Respondent has failed to rebut this presumption also which is in favour of the petitioner. It is not mandatory as per law to get the Will registered. Even if the present Will Ex.PW-1/3 is treated as unregistered or improperly registered, then its due execution would not suffer any setback from the statement of W-2 wherein he denied having no personal knowledge about it. Hence from the statement of PW-3. fact of drafting of the Will signing of the same by testatrix and witnesses after understanding its contents , appearance before Sub-Registrar for the purpose of its registration and its due execution as per requirement of section 63 of Indian Succession Act is fully established . Nothing material has come on record in his cross examination to doubt his veracity and truthfulness. His statement cannot be discarded merely on the ground that he happens to be a friend of son of the petitioner. On this score only, he cannot be termed as an interested witness so too reject his testimony. Slip of tongue while giving statement in court by FAO 124/2009 Page 8 of 14 PW-3 at one occasion that grandfather of PW-1 had to go to Kashmere gate for having „his will’ registered can be ignored when at the later part of the examination in chief he corrected himself and stated that Will was of the grandmother and he had taken both grandmother(SMY. Roop Rani) and grandfather (Sh. Jugal Kishore) of Sh V.k, Malhotra(pw-1) to the office of Sub- Registrar. Statement of PW-3 also cannot be discarded simply on the ground that at the time of registration, his signatures were not taken on the back side of first page of the will where Sub registrar made his endorsements. When this witness is specifically saying that he had appeared before sub- registrar at the time of registration on which there is no cross examination, then simple absence of his signatures taken on back side of the page has no relevance because he has attested the will at the time of the execution. Morever registration is not required or necessary in case of Will. If execution of will is established. Then improper registration has no meaning. Accordingly it is held that second will dated 17-11-1986 Ex PW1/3 has been proved by PW-3 being the last and genuinely executed Will of Smt. Roop Rani. It is also held that it was executed in sound disposing mind position by her.” 20. In regard to the objection that the deed writer was not present or had not been examined, it was observed that: “The will was drafted by a deed writer. PW-3 in his cross examination stated that Will was drafted when he reached there. This version of PW-3 was not disputed in further cross examination. From this fact, it is also established that drafting of the Will had taken place in presence of this attesting witness. The examination of person who drafted or typed the Will is not mandatory. Even mentioning of the name and putting signatures by typist on the Will is also not necessary. Hence no adverse inference can be drawn against m the petitioner for non examination of the deed writer who drafted the Will. Similarly, if that deed writer had not appeared before Sub-Registrar at the time of registration of the Will, then it cannot be held that Will is not genuine. As per procedure and practice, executants and witness are normally required to appear before Sub-Registrar at the time of registration and there is no necessity that deed writer or typist or even the person who read over and explained the contents of the document to the party must also appear before Sub-Registrar. The Will also cannot be looked into doubt merely on the ground that deed writer had given his Jama Masjid address on the Will whereas it was drafted in the office of the Sub-Registrar situated in Kashmere Gate.” 21. In the light of the aforesaid deposition made by PW-3 and the report of the handwriting expert and finger print experts that the second Will was executed by Late Smt. Roop Rani and the said Will was later in time, the learned ADJ rightly came to the conclusion that the second Will was the last and final Will of Late Smt. Roop Rani and, therefore, rightly granted probate with respect to the second Will and in the circumstances, when there is a second Will available rightly dismissed the first probate petition. Even though experts have been examined to prove the finger prints and handwriting of the deceased testatrix, the very fact that the