TEST.CAS. 2 OBJ/2003 Page 1 of 23 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 12th April, 2019 Date of decision : 13th May, 2019 + TEST.CAS. 2 OBJ/2003 & I.A.7197/2010 JAI SINGH ..... Petitioner Through Mr. Mandeep Singh Vinaik, Ms. Anjali Sharma, Mr. Deepak Bashta, Mr. Shashwat Bhardwaj and Mr. Abhimanyu Gupta, Advocates (M. No.9810001275) versus STATE ..... Respondent Through Mr. Ravi Gupta, Sr. Advocate with Mr. Aditya Vikram, Mr. Avinash, Mr. Sachin Jain, Advocates (M. No.9873846199) CORAM: JUSTICE PRATHIBA M. SINGH JUDGMENT Prathiba M. Singh, J. 1. The present petition under Section 276 of the Indian Succession Act, 1925 has been filed seeking grant of probate of the Will of late Sh. Inder Singh dated 10th March, 1995. The Petitioner is the elder brother of the testator. Notice was issued in the petition on 27th May, 2003. The three legal heirs of the testator have filed a common objection petition, objecting to the grant of probate. On 19th July 2006, the following issues were framed: 1. Whether the deceased executed a will dated 10th March 1995? 2. If issue no.1 is proved in the affirmative, whether the will in question is a valid will in the eyes of law? TEST.CAS. 2 OBJ/2003 Page 2 of 23 2. On behalf of the Petitioner-Sh. Jai Singh, three witness statements were filed: that of Sh. Jai Singh himself, and the two attesting witnesses to the Will, namely Sh. Kamal Singh and Sh. Ankur Walia. Though the two attesting witnesses filed their affidavits by way of evidence, only Sh. Ankur Walia had appeared for cross examination. On behalf of the Respondents, the affidavits by way of evidence have been filed by Sh. Raj Kumar, the son of the testator’s sister, and Sh. Vikas Dagar, one of the sons of the testator. 3. The submission of Mr. Vinaik, Advocate appearing for the Petitoner is that the Petitioner – Sh. Jai Singh had two brothers, Sh. Sher Singh and Sh. Inder Singh. The Petitioner was the eldest son of late Sh. Risal Singh. The testator - Sh. Inder Singh was suffering from Polio, and was handicapped. However, his elder brother, Sh. Jai Singh always emotionally supported him and even gave financial support to him. The family had a large number of moveable and immoveable properties and other assets. After the death of the father, the family entered into a family settlement, under which all the family members including the testator agreed to the division and the respective shares of all the heirs. However, one property i.e., land admeasuring 91 Kanals 4 marlas at Village Raisina, District Sohna bearing Khasra No. 99/22/2 (1-16), 102/1 (7-15), 2(8-0), 3(2-16), 6( 2-2), 7(4-13), 8(7-15), 9( 8-0), 10( 8-0), 11(8-0), 12( 6-18), 13( 8-0), 14 (8-0), 15(8-0), 26(1-2), 101/1/1(0-3), 10/2 (0-4) was not mentioned in the family settlement. The same is the subject matter of the Will in question. According to learned counsel for the Petitioner, this land was in fact purchased by Sh. Jai Singh in the name of Sh. Inder Singh, with the clear understanding that the said land would revert to Sh. Jai Singh. Thus, the same was not part of the family settlement and was bequeathed by the testator in favour of his TEST.CAS. 2 OBJ/2003 Page 3 of 23 elder brother. 4. It is submitted that the narration given in the Will supports these facts, and in fact while all the other assets of Sh. Inder Singh went to his legal heirs, this land was to vest in Sh. Jai Singh upon the death of Sh. Inder Singh. This is corroborated by the fact that the original title deeds of the subject land are in the possession of the Petitioner and the Petitioner also claims that he is physical possession of the land, which is being cultivated by him. Sh. Inder Singh unfortunately passed away in a road accident on 10th July, 1999. Mr. Vinaik states that upon the death of Sh. Inder Singh, when the Petitioner wished to seek mutation of this land, in view of the stand taken by the government authorities, the Petitioner decided to seek a probate for the Will. Thus, though the Will was executed in 1995 and Sh. Inder Singh passed away in 1999, since there was no objection whatsoever from any party, probate was not sought until the mutation proceedings were being delayed due to non-grant of probate. Under these circumstances, the Petitioner preferred the present probate petition. It is submitted that none of the legal heirs of the testator raised any objection to the grant of probate till November, 2005 though they were served with a copy of the petition in 2003 itself. 5. It is submitted that the Petitioner has discharged his onus by producing one of the attesting witnesses, namely Sh. Ankur Walia, who is an independent witness and not part of the family. The other witness to the Will was the court clerk of the lawyer in whose chamber the Will was signed. 6. It is submitted that all the three witnesses who have appeared for the Petitioner have clearly supported the execution of the Will. The two witnesses who appeared on behalf of the Petitioner, namely the Petitioner TEST.CAS. 2 OBJ/2003 Page 4 of 23 himself- Sh. Jai Singh PW-1 and Sh. Ankur Walia, PW-2 have clearly established the execution and signing of the Will in the presence of the two witnesses, as also the fact that the circumstances surrounding the Will were bona fide and did not raise any suspicion. It is the submission of learned counsel that Sh. Jai Singh, being the elder brother of the testator, was always looked up to by the testator, in a father-like position, and thus the bequest in favour of Sh. Jai Singh is not surrounded by any suspicion whatsoever. In fact, due to the handicapped status of Sh. Inder Singh, he was always given support by Sh. Jai Singh and it was only because of this that Sh. Inder Singh and the entire family agreed that the subject land would revert to Sh. Jai Singh upon the demise of Sh. Inder Singh. Thus, it is submitted that none of the legal heirs are entitled to object to the grant of probate inasmuch as all of them were aware of these facts. It is submitted that until 2005, the legal heirs of Inder Singh, having made no attempt obtain possession of this land or even the title deeds of the land, this shows that by their conduct, the family had accepted that this land would always be with Sh. Jai Singh. No proceedings whatsoever had been filed by the legal heirs of Sh. Inder Singh asserting any right to the subject land prior to the objections in the present case. 7. It is submitted that though Article 137 of the Limitation Act, 1963 applies to probate petitions, limitation only arises when there are circumstances that lead to a challenge to the Will by the heirs of the testator. 8. On the other hand, learned senior counsel Mr. Ravi Gupta appearing for the objectors submits that the Will is a forged and fabricated document. He relied upon various suspicious circumstances, surrounding the execution of the Will. He submits that whenever there are suspicious circumstances, TEST.CAS. 2 OBJ/2003 Page 5 of 23 the onus is very heavy on the Petitioner, to prove not just the signing of the Will, but the manner of execution, the manner of the bequest, production and possession of the Will, as also the delay. He submits that the following are the various suspicious circumstances surrounding the execution of the Will:- (i) The Will is a three page document, however, the signatures appear only on the last page. (ii) The last page contains a very general statement of the testator and the main bequest is in the first two pages, which are not signed by the testator. (iii) The Will is not registered. (iv) The names of the attesting witnesses are filled up in hand. (v) One of the witnesses is in fact the court clerk of the lawyer in whose chamber the Will is claimed to have been signed. (vi) There is no clarity in the evidence as to who prepared the Will and where it was typed and dictated. (vii) The text of the Will does not justify the grant of the subject property in favour of the Petitioner. When admittedly the testator had three legal heirs, there was no reason why such a Will ought to have been executed. (viii) The Will itself does not give reasoning for excluding the legal heirs. (ix) There is no evidence placed on record as to the source of funds from which Sh. Jai Singh had purchased the subject land in the name of the testator, since that was a crucial circumstance leading to the preparation and execution of the alleged Will as per the TEST.CAS. 2 OBJ/2003 Page 6 of 23 Petition. The facts relating to the purchase of the subject land and the person from who it was purchased ought to have been placed on record. (x) The averments in the affidavit which was filed by Sh. Jai Singh were also very general in nature, and no reason has been given as to in what manner Sh. Jai Singh came into possession of the original Will. (xi) The Will is in English language and there is no statement that the contents of the Will were read over to the testator, and that the same were understood by him. (xii) Even the background i.e. that the governmental authorities sought a probate in order to mutate the property in favour of the Petitioner has not been pleaded or established. (xiii) The Petitioner himself admits in cross examination that cash payments were made for the purchase of the land and no proof whatsoever was shown as to the manner in which the consideration was paid. (xiv) The entire circumstances and the production of Sh. Ankur Walia as the attesting witness to the Will, when admittedly he was a friend of the son of the Petitioner, who himself was the beneficiary of the Will leads to suspicion. (xv) The presence of the propounder of the Will - Sh. Jai Singh at the time when the Will was executed, is a suspicious circumstance. 9. It is thus submitted that the court’s conscience has to be fully satisfied before a probate can be granted. 10. The objectors dispute that the Petitioner is in possession of the land. TEST.CAS. 2 OBJ/2003 Page 7 of 23 The objectors state that they were not aware of the existence of the Will until they were served with the probate petition in 2003. 11. The following judgments are relied upon by the objectors:- (i) Geeta Roy v The State 2014 (142) DRJ 502 (ii) Rajinder Kumar Gupta v The State and Ors., FAO 430/2008, Decided on 23rd July, 2012 (iii) Kavita Kanwar v State (2014) 211 DLT 448 (iv) Shri Narain Singh v The State & Ors. (2014) 211 DLT 632 (v) Ved Prakash v Om Prakash 2013 (9) AD (Delhi) 461 (vi) Sudershan Lal Maini v Virender Kumar Maini 2012 (187) DLT 414 (vii) Prem Nath Chopra v Arun Chopra and Ors. 209 (2014) DLT 144 (viii) Lalita Sharma v Sumitra Sharma 2011 (178) DLT 358 (ix) Bharpur Singh & Ors. v Shamsher Singh AIR 2009 SC 1766 12. In rejoinder, Mr. Vinaik, ld. Counsel for the Petitioner relied upon Section 114 of the Indian Evidence Act, 1872 to argue that it is the clear and settled legal position that certain facts can be presumed and it is not necessary to prove each and every fact. Specific reliance is placed upon presumption (g) in the Illustration of the said Section. The most important submission, according to Mr. Vinaik is that if the objectors are challenging the execution of the Will, and claim that the same is forged and fabricated, there was no reason as to why the objectors could not have got forensic examination of the Will carried out. Since the forensic examination of the Will was not even sought by the objector, the same goes to show that the objectors were clearly aware of the genuine nature of the Will. They were further aware of the fact that forensic examination would have conclusively TEST.CAS. 2 OBJ/2003 Page 8 of 23 established that the Will was genuine. The objectors have filed their objections in a very cavalier manner, and the same has been done after a long delay. All this goes to show that the objector was aware of the Will, and the objections raised are frivolous and not genuine. It is further submitted that the fact that Sh. Jai Singh does not remember the person from whom the purchase of the subject land was made ought to be held in his favour, rather than against him. Further, the involvement of Sh. Jai Singh at the time of the signing of the will is natural behaviour for a person like Sh. Inder Singh, who always regarded his elder brother with a great deal of respect and, since the event of the signing of the Will was on an important day, i.e., the birthday of the Petitioner, the presence of the elder brother cannot be considered to be suspicious. Findings 13. A perusal of the Will dated 10th March, 1995 shows that it relates only to the agricultural land at Village Raisina, District Sohna, Haryana. The testator has given the details of his parentage and his siblings. He has clearly mentioned that he was handicapped at an early age and that his brother i.e. the Petitioner – Sh. Jai Singh has supported him in his life. The manner in which the Petitioner has supported the testator by arranging to have a truck transferred to his name, and also engaging him to supervise the business of brick kilns, has been specifically mentioned. The background in which the subject property was purchased along with another property in village Ghasola, and thereafter at village Kundal, is clearly narrated in the Will. It is also recorded that a family settlement was entered into in 1994 amongst the brothers. However, the subject property was not part of the family settlement. The testator clearly states that it is his wish that the TEST.CAS. 2 OBJ/2003 Page 9 of 23 property, after his death, should go to his brother Sh. Jai Singh, who was instrumental in purchasing the subject land. The text of the Will is important and is set out hereinbelow: “This is the last Will of me, Inder Singh, S/o Late Shri Risal Singh made on this 10th day of March, 1995. I state that this is my last Will with respect to the subject property and any other Will, codicil and documents of testamentary nature pertaining to the agricultural land at Village Raisina, District Sohna, Haryana, stands cancelled and revoked. I am executing this Will free of any fear or favour, and without any undue influence or pressure. I am the youngest child of Late Shri Risal Singh. I have two elder brothers Shri Jai Singh and Shri Sher Singh. I also have three sisters who are elder to me. Unfortunately, owing to handicap suffered by me at an early age I was not able to complete my studies and have studied only upto Class V. My eldest brother Shri Jai Singh has, all along, been playing the role of my mentor and guide. Not being in a position to earn a living for myself, he has supported me throughout my life. In 1977, my brother arranged to have truck no. DLL 8121 transferred to my name. I was also engaged to supervise the brick kiln run by Shri Jai Singh at Shahurpura. In the year 1981, Shri Jai Singh purchased land measuring 52 karnals, 17 marlas, at Village Ghasola, out of his own resources, in my name. In the months of January, and March, 1982, Shri Jai Singh purchased a total of 91 kanals and 4 marlas of land in my name in Village, Raisina, District Sohna from his own resources but the same was purchased in my name. In the year 1991, the Ghasola land was sold by me with the consent of Shri Jai Singh and using the proceeds of the same, I purchased about 14 acres of TEST.CAS. 2 OBJ/2003 Page 10 of 23 land at Kundal, District Sonepat, Haryana in mine and my wife’s name. However, it had always been the understanding in the family that the land at Raisina would always belong to Shri Jai Singh, and I would arrange to have the same transmitted back to him. In the year 1991, some litigation commenced between my brothers which pertained to a family dispute about property. The same was pending in the court of the Civil Judge, at Delhi. In 1993, our father died. In the year 1994, we had a settlement within the family and the same was recorded by means of a consent decree passed by the court of Shri R.S. Arya, Civil Judge, Delhi. While the said settlement recorded the arrangement between the three brothers as to other properties, the land at Raisina Village was left out of the same since it had always been the understanding that the same would revert back to Jai Singh. The present Will pertains to agricultural land at Raisina Village District Sohna, described above. I am grateful to Shri Jai Singh for having provided for me and my family in this manner and for securing the future of my children. However, I want to honour my promise to my eldest brother by ensuring that the land at Raisina Village goes back to the person who purchased it in the first place. In fact this was the intention of all concerned when the settlement was arrived at within the family. AND NOW THEREFORE I HEREBY bequeath land measuring 91 kanals 4 marlas at Village Raisina District Sohna, bearing Khasra No. 99/22/2 (1-16), 102/1 (7-15), 2(8-0), 3(2-16), 6(2-2), 7(4-13), 8(7-15), 9(8-0), 10(8-0), 11(8-0), 12(6-18), 13(8-0), 14(8-0), 15(8-0), 26(1-2), 101/1/1(0-3), 10/2(0-4) in favour of my eldest brother Shri Jai Singh, Son of Late Shri Risal Singh, Resident of J-171, Saket, New Delhi. After my death the said land shall vest exclusively with Shri Jai Singh and no other person shall have any right, title or TEST.CAS. 2 OBJ/2003 Page 11 of 23 interest over the same. In the event of Shri Jai Singh predeceasing me the land shall go to his wife, Smt. Bijendri. By means of this Will I wish to call upon my wife and children to honour my wishes after my death and to ensure that the terms of this Will are given effect to. All my other property shall vest in my legal heirs in accordance with law.” 14. The contents of the Will show that the testator has given a detailed background as to why he has decided to bequeath the subject property in favour of his brother. The facts – i.e., that the testator was handicapped; that his brother mentored and guided him in his life; that despite his handicap, the testator could earn and take care of his family and also created properties in his own name; the mention of the family settlement and reasons for the bequest - all go to show that the testator was of sound mind. The facts are too detailed for anyone who did not have knowledge, to make the testator write such a Will. Thus the will is clearly not fabricated. 15. The next objection is that the Will is surrounded by suspicious circumstances. Though the objectors have made a feeble attempt to challenge the signatures of the testator, during the present proceedings, the objectors did not seek forensic examination of the Will. 16. The Petitioner himself appeared as a witness and stated that the testator – Sh. Inder Singh was inducted as a partner in the firm namely Chaudhary Bhatta (Brick Kiln) after the death of the father. He relied upon the family settlement which was also signed by the testator. Agricultural land owned by the father was distributed amongst the members as per the family settlement. In fact, the Petitioner deposed that he had purchased the land in village Ghasola but the same was purchased in the name of the TEST.CAS. 2 OBJ/2003 Page 12 of 23 testator. He stated that the said land also belonged to him and hence his permission was taken by the testator to sell the same. He admitted that one of the witnesses to the Will was the court clerk of his counsel. He stated that the entire payment for the subject property was made by him. He denied the suggestion that the Will was forged and fabricated. He stated that the Will was signed and attested in the chamber of his counsel. He also stated that he was not aware as to who drafted the Will. He admitted that the other witness to the Will - Mr. Ankur Walia was a classmate of his son and also a family friend. He further stated that the testator brought the attesting witness with him and the said witness signed in the counsel’s presence. He admitted that after the family settlement, the testator – Mr. Inder Singh became the absolute owner of the Chaudhary Bhatta. In fact, the old firm M/s. Chaudhary Bhatta, which was run when the father was alive, was dissolved and a new firm by the name M/s. Chaudhary Bhatta was formed. However, the Petitioner did not remember as to from whom the subject property was purchased and what was the consideration. He stated that the testator was mentally normal during his lifetime. He stated that the Will was executed on 10th March, 1995, which was also the birthday of the Petitioner and it was the Testator’s gesture to gift the property to the Petitioner. 17. The attesting witness Mr. Ankur Walia appeared and deposed that he was the friend of the son of the Petitioner. He stated that he had accompanied the testator on 10th March, 1995 to the chamber of the counsel, where the Will was signed. He confirmed that the other witness was Mr. Kamal Singh, the court clerk of the counsel, who signed in his presence. He did not know as to where the Will was written. He stated that the court clerk Mr. Kamal Singh had signed after he had signed. TEST.CAS. 2 OBJ/2003 Page 13 of 23 18. On the other hand, the son of the testator deposed as OW-1. He confirmed his date of birth as being 23rd September, 1982. Thus, at the time of execution of the Will, he was only 13 years old. He stated that his father expired between the age of 38 to 40 years. He admitted that his father was handicapped and that he used to walk with crutches. He did not know the details of the truck mentioned in the Will, but he stated that he sold the truck subsequent to his father’s demise. He admits that under the family settlement, his family got 1/3rd share in the property bearing No.257, Shahpur Jat, New Delhi as also in the land measuring 800 sq. yards in Shahpur Jat. He also admitted that his branch of the family got compensation to the extent of 1/3rd share in respect of family land acquired by the government. He admitted the family settlement and also identified his father’s signatures in the family settlement. He stated that his father had purchased the subject land from his own funds, which were provided by his grandfather. Owing to the fact that his he was very young at the relevant time, he did not know most of these facts from his personal knowledge but had gathered the same from the family members and villagers. He stated that he was not aware as to why the subject property at village Raisina was not made