REPORTED * IN THE HIGH COURT OF DELHI AT NEW DELHI % DATE OF DECISION: March 25, 2009 + TEST CAS.15/1997 RAJESH ARORA ..... Petitioner Through: Mr. Sanjay Gupta, Mr.Ajay Monga, Mr.Ateer Mathur and Mr.Kaushik Ahuja, Advocates. versus STATE & ORS. FC+ ..... Respondents Through: Mr.V.S.Chauhan, Advocate for R-2 and 3 CORAM: HON'BLE MS. JUSTICE REVA KHETRAPAL 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : REVA KHETRAPAL, J. 1. The genuineness of the will dated 1st June, 1995 of one Shri Tilak Raj Akalgarhia is in issue in the present case. The petitioner seeks probate of the said will by virtue of the provisions of Section 278 of the Indian Succession Act, while the respondents No.1 and 2, who are the real brothers of the petitioner, maintain that the will under which the petitioner is the sole beneficiary cannot be probated by this Court as the same is not a genuine document. 2. The petitioner claims that the testator Shri Tilak Raj Akalgarhia expired TEST CAS.15/1997 Page 1 of 23 on January 18, 1997 at Delhi after executing during his lifetime a will dated 01.06.1995, which was duly registered with the Sub-Registrar, Kashmere Gate, as Document No.24927, Additional Book No.III, Volume No.2376 on Page 142. The deceased Shri Tilak Raj Akalgarhia was survived by the following class I legal heirs: (i) Shri Rajesh Arora (son) – Petitioner (ii) Shri Anil Kumar (son) – Respondent No.2 (iii) Shri Nutan Kumar (son) – Respondent No.3 (iv) Smt. Anita Nagpal (daughter) – Respondent No.4 (v) Smt. Neelam Sadana (daughter) – Respondent No.5 3. The wife of the deceased Shri Tilak Raj Akalgarhia, namely, Smt. Sita Rani had pre-deceased him. By his alleged last will and testament, the testator bequeathed his property, i.e., House No.18, State Bank Colony, G.T. Karnal Road, Delhi, of which he was the absolute owner, to the petitioner – his youngest son to the exclusion of the respondents No.2 and 3, being his two other sons. The will, apart from bearing the signature of the testator Shri Tilak Raj Akalgarhia purports to be signed by two attesting witnesses Shri Yashpal Singh and Shri R.R. Bhardwaj, Advocate, whose signatures appear on the left side of the will while on the right side are the signatures of one Dr. Balbir Singh under the signatures of the testator himself. TEST CAS.15/1997 Page 2 of 23 4. Notice of the institution of the petition for the grant of the probate was issued to the respondents. A joint written statement was filed by the respondents No.2 and 3 disputing the validity of the will on various grounds to which I shall presently advert. The respondents No.4 and 5, who also filed a joint written statement, however, did not dispute the validity of the will, and stated that they had no objection if probate was granted in favour of the petitioner. Additionally, the statement of Mr. Sumit Bansal, the counsel appearing for the respondents No.4 and 5 was also recorded by the Court on October 14, 1998, who stated that the respondents No.4 and 5 had no objection if a probate was granted in respect of the will in favour of the petitioner. It was also stated by him that their no objection certificate was on record. 5. The petitioner filed a rejoinder to the written statement of the respondents No.2 and 3 and on the pleadings of the parties, the following issues were framed by the Court for adjudication on 04.10.1999:- “(1) Whether the deceased Tilak Raj Akalgarhia had duly executed will dated 1.6.1995, if so to what effect? (2) Whether the verification on the petition under Section 278 of the Indian Succession Act bears the verification by Shri R.R. Bhardwaj, Advocate, if not to what effect? (3) If issue No.2 is proved against the plaintiff whether the plaintiff is liable to be proceeded for contempt of court? (4) Relief.” 6. It would be pertinent to note at this juncture that prior to the framing of TEST CAS.15/1997 Page 3 of 23 issues, an application, being IA No.8766/1998 under Order I Rule 10 of the Code of Civil Procedure was filed by Shri R.R. Bhardwaj, Advocate, alleged to be an attesting witness of the will, seeking impleadment of his name as one of the respondents in the petition, to which a detailed reply was filed by the petitioner. This application, as it appears from the record, was never disposed of, possibly in view of the fact that Shri R.R. Bhardwaj, Advocate subsequently died. Specific reference is being made to the application for the reason that while the respondents 2 and 3 place implicit reliance upon the application to buttress their contention that the will is not a genuine document, it is the contention of the petitioner that the application was filed by the said Shri R.R. Bhardwaj at the behest of the respondents No.2 and 3 and in collusion with the aforesaid respondents. I do not propose to dwell any further on this aspect at this juncture as this aspect will be more elaborately dealt with by me at the appropriate time. 7. With regard to the issues framed on 4th October, 1999, the parties adduced their respective evidence. The petitioner in order to prove his entitlement to the grant of probate examined himself as PW1 and categorically testified that House No.18, State Bank Colony, New Delhi was the self- acquired property of his father, who had executed a will dated 1st June, 1995 in respect thereof. Originally, he stated, this will was lying in the locker, which TEST CAS.15/1997 Page 4 of 23 was held jointly by his father and him. He had never operated the locker after the death of his father. During his lifetime, his father was residing with him in House No.18, State Bank Colony. He had seen his father writing and signing and was well-acquainted with his signatures. He could identify the signatures and writing of his father. He had seen photocopy of the will, which was marked as 'B', which bears the signatures of his father at the place marked as 'C'. He further stated that his father was not having cordial relations with his two brothers, namely, Anil Kumar and Nutan Kumar (the respondents No.2 and 3), who were not giving due respect to him. His lawyer Mr. Sanjay Gupta had told him that the petition was required to be verified and signed by the attesting witness of the will and so he had contacted Mr. R.R. Bhardwaj, Advocate, as he was an attesting witness of the will. He signed the verification clause of the petition in his presence with his left hand. He had seen the petition signed by Mr. R.R. Bhardwaj, Advocate, which was marked as 'D'. According to the will, the property bearing House No.18, State Bank Colony was bequeathed in his favour, so now he was the owner thereof after the death of his father. 8. Having gone through the evidence adduced by the parties and heard Mr. Sanjay Gupta, the learned counsel for the petitioner and Mr. V.S. Chauhan, the learned counsel for the respondents No.2 and 3, it is proposed, in the first TEST CAS.15/1997 Page 5 of 23 instance, to deal with issue Nos.1 and 2, which pertain to the validity of the will executed by the deceased Shri Tilak Raj Akalgarhia and as to whether the petitioner is entitled to the grant of probate in respect of the said will. For the aforesaid purpose, it is deemed expedient to dwell on the contentions raised at the Bar in respect of the will in question. But first a glance at the evidence on record. 9. PW1 Mr. Rajesh Arora was cross-examined at length in the course of which he stated that it was correct that for the purpose of getting the signatures of Mr. R.R. Bhardwaj on the verification clause of the petition, he was given only one page of the petition which contained the verification clause. He also stated that he did not know if the date 28th April, 1997 was written by his counsel on the said verification clause. He, however, denied the suggestion that the verification clause was not signed by Mr. R.R. Bhardwaj, though he admitted that he did not know Mr. R.R. Bhardwaj before the death of his father and that the address of Mr. R.R. Bhardwaj was not given on the will. He further volunteered to state that his father had told him that he had got the will attested by Mr. R.R. Bhardwaj, who works in the Kashmere Gate area. With regard to the other attesting witness, namely, Yashpal, he stated in the cross- examination that he did not know Yashpal, that the will contained the address of Yashpal as WZ-6, Palam Colony, but he did not know whether Yashpal was TEST CAS.15/1997 Page 6 of 23 residing at the said address as he had never tried to contact him. He categorically denied the suggestions put to him that the alleged will was not signed by his father or by Yashpal or by R.R. Bhardwaj or by Dr. Balbir Singh and the further suggestion that the signatures on the verification clause were not those of R.R. Bhardwaj by his left hand. No other worthwhile cross- examination of this witness was conducted. 10. Next, PW2 Shri Devender Kumar, working as a clerk in the Punjab National Bank, was summoned with the record pertaining to the locker of the deceased from where the will of the deceased was recovered by the Local Commissioner appointed by the Court, but was subsequently given up as he produced some other records instead. 11. PW3 is Mr. A. Rehman, UDC from the office of the Sub-Registrar-I, Kashmere Gate, New Delhi, who brought the summoned record relating to the will, which was registered in the office of the Sub-Registrar (I) vide Document No.24927, Additional book No.3, Volume No.2376 at Page No.142 on 01.06.1995. In the course of his testimony, the certified copy of the will was marked as Exhibit 'X-I', which was stated to be produced from the record of the Sub-Registrar by the witness. 12. The testimony of PW4 Shri Yashpal is significant. Though this witness was declared hostile, he testified that he was working as a clerk with a TEST CAS.15/1997 Page 7 of 23 document writer named Shri Vinod Kumar, at Kashmere Gate, since 1995. His work related to rendering help for registration of the documents in the office of the Sub-Registrar, Kashmere Gate. He was doing the job of completing the documents for the purpose of registration and many times he signed such documents in the capacity of witness. He identified his signatures on the personal bond dated 16.02.2004 at Point 'X' exhibited as Exhibit PW4/1 and on the personal bond dated 17.10.2003 at Point 'Y' exhibited as Exhibit PW4/2, he having appeared in response to bailable warrants issued to him by the Court. He stated that he had seen the will dated 01.06.1995 in original. The signatures on the said will at Point 'Z' were his signatures. The will was exhibited as Exhibit PW4/3. He denied that the testator of the will, the other witness and he had signed the will dated 01.06.1995 in the presence of each other, and went on to volunteer that will Exhibit PW4/3 already bore the signatures of the testator and the second witness when he signed it. 13. At this stage, the counsel for the plaintiff moved an application, being IA No.1803/2004 for permission to declare PW4 Shri Yashpal a hostile witness and to cross-examine him. Accordingly, on 16th September, 2005, PW4 Yashpal was declared hostile and was cross-examined by the counsel for the plaintiff. In the course of his cross-examination, PW4 Yash Pal, inter-alia stated that he was working with one Mr.Narender Kumar Mehra, Advocate, TEST CAS.15/1997 Page 8 of 23 who was having seat at Kashmere Gate, Delhi. In the context of the will in the instant case, he stated that the second witness had already signed the will (Exhibit PW4/3) before he signed the same at Point 'Z' and further volunteered to state that he had signed on the will in the evening on that day to complete the said document. He further stated that some one had asked him that his name had been written as a witness on the document, so he should sign the same. On a specific querry put to him as to whether he could point out the place where the second witness had signed the document, he answered that the second witness had signed the document, Exhibit PW4/3 at the point which had been stamped as R.Bhardwaj. On being cross-examined by the learned counsel for the respondent Nos.2 and 3, he however, categorically denied that the will (Exhibit PW4/3) did not bear his signatures. 14. No other witness was examined by the petitioner. An affidavit by way of evidence of the respondent No.2, Anil Kumar was submitted on behalf of the respondent Nos.2 and 3 and the respondent No.1 was subjected to cross- examination on behalf of the petitioner. 15. I have heard the learned counsel for the petitioner, Mr.Sanjay Gupta and the learned counsel for the respondent Nos.2 and 3, Mr.V.S.Chauhan and gone through the contents of the original registered will of the testator, duly stamped by the Office of the Sub-Registrar. The said document is a one page document TEST CAS.15/1997 Page 9 of 23 bearing the signatures of the testator on the foot of the document on the right hand side and one Dr.Balbir Singh's signatures appear beneath the signatures of the testator. On the left hand side, under the caption 'Witnesses', two witnesses purport to have signed the will, namely Yashpal and R.Bhardwaj. The stamp “Drafted by : R.Bhardwaj” is affixed at the place where his signatures appear. The back page of this document, Exhibit PW4/3 bears the stamps of the Office of the Sub-Registrar with the date 1.6.1995 and is signed by the Sub-Registrar at three places. It is also signed by the testator at two places and bears the thumb impression of the testator at two places. The document (Exhibit PW4/3) on its front side also contains a photograph of the testator. 16. Apart from the original will, Exhibit PW4/3, there are on record two other copies of the will. One is the certified copy of the will tendered in evidence by PW2, Mr.A.Rehman from the Office of the Sub-Registrar-I(I), Kashmere Gatge, who testified that he had brought the summoned record relating to the will, which was registered in the Office of the Sub-Registrar-I vide Document No.24927, Additional Book No.3, Volume No.2376 at page- 142, registered on 1.6.1995. He further testified that certified copy of the said will was 'X-1'. This will on a comparison of the front page and the back page is identical with the original will, Exhibit PW4/3. TEST CAS.15/1997 Page 10 of 23 17. The learned counsel for the respondent Nos.2 and 3 has assailed the will principally on the following grounds:- (i) Tilak Raj Akalgarhia during his life time had not executed any will dated 01.06.1995 in favour of the petitioner and no such will was registered with the Sub-Registrar, Kashmere Gate, as alleged. (ii) The verification of the plaint purportedly signed by Shri R.R.Bhardwaj is false and fabricated as also the signatures of the said witness on the will. (iii) In any case attestation of the will must be proved in accordance with Section 63(c) of the Indian Succession Act and the petitioner has failed to prove the same. Shri R.R.Bhardwaj was the scribe and the scribe cannot be an attesting witness to the will which he scribes. (iv) The other attesting witness, PW4 Yashpal had failed to prove the attestation of the will and was declared a hostile witness. In any case, PW4 Yshpal was a fictitious person as the address of PW4 Yashpal as given in the will was WZ-6,, Palam Colony, while he was summoned in the Court at the address of the Registrar of Assurances, Kashmere Gate. The address given by him in Court at the time of recording of his testimony is Azad Nagar, Barod, U.P. (v) The petitioner had failed to produce Dr.Balbir Singh, who was also an TEST CAS.15/1997 Page 11 of 23 attesting witness to the will. 18. Per contra, the learned counsel for the petitioner contended that so far as the first contention of the learned counsel for the respondent Nos.2 and 3 is concerned, the following four facts are significant. Firstly, the signatures of the testator of the will had not been disputed by the respondent Nos.2 and 3, who have nowhere stated that the will is not signed by their father. Secondly, it is not in dispute that the will bears the photograph of the testator Tilak Raj Akalgarhia. Thirdly, the registration of the will has been duly proved by PW2 Mr.A.Rehman, who had produced the original records before the Court. Not even a suggestion was put to this witness that the will was not registered with the Office of the Sub-Registrar and the records had been tampered with. Fourthly, it is not in dispute that the locker standing in the joint name of the testator Tilak Raj Akalgarhia and the petitioner was not operated upon after the death of the deceased and it is from this locker that the will was retrieved and produced by the local commissioner appointed by this Court to operate the locker and to place on record the will of the testator. Fifthly, the daughters of the testator (respondent Nos.4 and 5) have raised no objection to the will and have not disputed the signatures of their father on the said will. It is not even the case of the respondent Nos.2 and 3 that the daughters of the testator are colluding with the petitioner. A written statement has been filed by the TEST CAS.15/1997 Page 12 of 23 respondent Nos.4 and 5 to state that they have no objection to the will being probated. 19. As regards the second contention of the learned counsel for the respondent Nos.2 and 3 that the signatures of R.R.Bhardwaj on the will are forged and fabricated, the learned counsel for the petitioner has drawn my attention to the fact that there are no pleadings in the written statement to state that the signatures on the verification signed by R.R.Bhardwaj are forged and fabricated. Then again, it is contended that R.R.Bhardwaj, though he has stated that the will was not executed by Tilak Raj Akalgarhia in his presence, that he is not an attesting witness to the said will, that the said will is not drafted by him and does not bear a stamp and that the plaint in the probate case is not verified and signed by him, nowhere disputes his signatures on the will. The learned counsel contends that the application filed by R.R.Bhardwaj at the behest of the respondent Nos.2 and 3 to state the aforesaid facts conclusively showed that he had been won over by the respondent Nos.2 and 3. When he could file an application at the instance of the respondent Nos.2 and 3, he could have said that the will was not signed by him, but he nowhere denies his signatures on the will for reasons which are not far to seek. In the aforesaid circumstances, there can be no manner of doubt that R.R.Bhardwaj was won over by the respondent Nos.2 and 3. The fact that he could not be TEST CAS.15/1997 Page 13 of 23 subjected to cross-examination, also weighs heavily against the petitioner and in such circumstances, implicit reliance cannot be placed upon his affidavit filed prior to his death. 20. As regards the third contention of the learned counsel for the respondent Nos.2 and 3, it is urged by the learned counsel for the petitioner that R.R.Bhardwaj was not the scribe of the will in question. No doubt, he had drafted the will, but he had not scribed the same. Even otherwise, it is nowhere held that a scribe cannot be an attesting witness to the will. 21. As regards the fourth contention of the learned counsel for the respondent Nos.2 and 3 that PW4 Yashpal was a fictitious person on account of the fact that his address as mentioned in the will was WZ-6, Palam Colony and his address as recorded by the Court is Azad Nagar, Barod, U.P., the learned counsel for the petitioner has pointed out that the address mentioned in the will was the residential address of the witness, while the address given by the witness in U.P., in his testimony, was his permanent address. He also pointed out that his address was also mentioned by him when he appeared in the witness box as Old Court, Kashmere Gate where the Office of the Registrar, Assurances is located. In any case, no suggestion was given to the witness by the learned counsel for the respondent Nos.2 and 3 to suggest that he was a fictitious person and not the same Yashpal who had signed the will TEST CAS.15/1997 Page 14 of 23 nor the witness was confronted in his cross-examination about the address mentioned by him in the will. Apart from giving a suggestion to the witness that the signatures on the will were not his, no other question or suggestion was posed to the witness in any manner to challenge his testimony. 22. As regards the fifth contention of the learned counsel for the respondent Nos.2 and 3, it is contended by the learned counsel for the petitioner that the name of Dr.Balbir Singh is not mentioned in the column of attesting witnesses either on the front page of the will (Exhibit PW4/3) or on the back page of the will. On the back page where the names of the attesting witnsses are mentioned, the names of only R.R.Bhardwaj and Yashpal find mention as attesting witnesses. In the list of witnesses filed by the petitioner also Dr.Balbir Singh was cited as witness No.5, but not described as an attesting witness. Dr.Balbir Singh's signatures appear just below the signatures of the testator and he had possibly signed as a doctor. There was no occasion to summon him as no challenge was raised by the respondent Nos.2 and 3 that the testator was not of sound disposing mind. If the respondents wanted, they could have summoned Dr.Balbir Singh to prove that he had not signed the will, but they did not choose to do so. 23. In view of the aforesaid, the learned counsel for the petitioner submitted that he had discharged the onus of proving issue No.1 that the deceased Tilak TEST CAS.15/1997 Page 15 of 23 Raj Akalgarhia had duly executed the will in question. The mere fact that the attesting witnesses to the will had been won over by the respondent Nos.2 and 3 was not enough to non-suit the petitioner. The learned counsel for the petitioner also heavily relied upon the diary of the testator to contend that the relations of the testator with his other two sons viz., the respondent Nos.2 and 3 were strained and uncomfortable and it was the intention of the testator to make the petitioner the sole beneficiary of his estate. Significantly, RW1 Shri Anil Kumar (respondent No.2) when he appeared in the witness box, admitted the handwriting of his father in the aforesaid diary, which was marked as Exhibit RW1/1. The relevant notings in the said diary, which go to show the nature of the testator's relationship with his son Anil Kumar and Nutan Kumar, respondent Nos.2 and 3 read as follows :- “Take it guaranteed that Smt.Neelam D/o Shri Roshan Lal must not be allowed to remain in our residence. She thinks that Shri Nutan is in her pocket. This is the fact I believe also that her parents education