Judgment:
* + (i) IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: July 05, 2017 TEST. CAS.12/1990 SMT. KRISHNA ........ Petitioner
Through: Mr. Sunil Agarwal, Advocate versus STATE & ORS. Through: Mr.G.S. Raghav, Mr.Dashrath ........ RESPONDENTS
Raghav and Mr. Pankaj Kumar, Advocates for respondents No.2 to 4 TEST. CAS.16/1998 + (ii) JANAK RANI & ORS. ........ Petitioner
s Through: Mr.G.S. Raghav, Mr.Dashrath Raghav and Mr. Pankaj Kumar, Advocates versus STATE & ORS. ........ RESPONDENTS
Through: Mr. Sunil Agarwal, Advocate CORAM: HON'BLE MR. JUSTICE SUNIL GAUR % (ORAL) JUDGMENT TEST. CAS.12/1990 & 16/1998 Page 1 of 10 In the above-captioned first petition, probate of Will dated 31st August, 1971 is sought by wife of late Banarsi Dass, who claims to be the Executor of the said Will. Copy of the Will dated 31st August, 1971 is annexed as Annexure-B with the probate petition and the particulars of immovable property i.e. B-1/20, Hauz Khas, New Delhi are attached as Schedule ‘B’ to the probate petition. List of legal heirs of late Banarsi Dass is Schedule ‘A’ to this petition. Particulars of cash deposit made by late Banarsi Dass with M/s. Prithvi Raj Banarsi Dass and M/s. Prithvi Raj Banarsi Dass Saree House are appended as Schedule ‘C’ to this petition. List of liabilities of late Banarsi Dass are Schedule ‘D’ to this petition. Copy of death certificate of late Banarsi Dass is Annexure-A to this petition. Copy of the assessment order in respect of immovable property in question is Annexure-C to this petition. The undisputed facts are that late Banarsi Dass was owner of immovable property B-1/20, Hauz Khas, New Delhi and he had died on 29th December, 1984 and that late Banarsi Dass had left behind his widow-Smt. Krishna and four daughters whose particulars find mention in Schedule ‘A’ to the probate petition. It is also not in dispute that late Banarsi Dass, during his lifetime, had remarried after the death of his first wife and Smt. Janak Rani, Usha and Veena are his daughters from his first wife and Smt. Neeru Babbar is the daughter from his second wife. It is also matter of record that during the pendency of these petitions, Smt. Krishna (wife of late Banarsi Dass) and Ms. Usha (daughter of late Banarsi Dass) had died and Ms. Neeru Babbar, legal TEST. CAS.12/1990 & 16/1998 Page 2 of 10 heir of Smt. Krishna, has been brought on record. In the above-captioned first petition, probate is sought in respect of Will of 31st August, 1971 whereas in the above-captioned second petition, Letter of Administration is sought on the basis of Will of 20th November, 1984 in respect of tenancy rights in house No.3500, Gali Sang-Tarashan, Bara Hindu Rao, Delhi having good-will/pugree of Rupees Five lacs. Apart from the immovable property as detailed in Annexure ‘B’ to the petition filed by Smt. Janak Rani and others, Goodwill in the partnership business of late Banarsi Dass is also sought. On 30th November, 1995, the following issues were framed in the above-captioned first petition: - “1. Whether the deceased Late Sh. Banarsi Das executed will dated 31.08.1971 and the same is the last will of the deceased?. OPP.
2. Whether the deceased executed will dated 20.11.1984 as his last will bequeathing all his properties to the petitioners and respondents in equal shares?. OPD.
3. Whether the petitioner is entitled to the grant of probate in respect of will dated 31.08.1971.” The order of 17th October, 2006 in the above-captioned second petition reveals that the issues framed in the above-captioned first petition have been treated as issues framed in the above-captioned second petition as well. The evidence recorded in the above-captioned first petition comprises of deposition of Ms. Neeru Babbar (PW2), Naveen Gulati (PW-3), Ajay Chawla (PW-4), who are the sons of the attesting witnesses as both the attesting witnesses had died before the commencement of TEST. CAS.12/1990 & 16/1998 Page 3 of 10 recording of evidence. Sh. D.R.Handa, Senior Scientific Officer from CFSL has been also got examined as PW-4, who had deposed in respect of both the Wills in question. In the above-captioned first petition, Ms. Janak Rani has deposed as DW-1 to contest the Will dated 31st August, 1971 and has also set up the Will of 20th November, 1984 to equally divide the immovable property between the parties. In the above-captioned second petition, Ms. Janak Rani has again deposed as PW-1 and has got examined her real sister Ms. Veena as PW
Apart from this, Ms. Janak Rani has also got examined T.R. Nayyar (PW-3), who claims to be the eye-witness to the Will of 20th November, 1984. PW-4 is a private handwriting expert, who has been got examined by Ms. Janak Rani in her petition. Pertinently, Ms. Neeru Babbar, the legal heir of Smt. Krishna, has not stepped into the witness box in the above-captioned second petition. In the above-captioned second petition, vide order of 23rd March, 1999, it was directed that this petition has to be heard alongwith above-captioned first petition. So, these two petitions have been heard together and are being decided by this common judgment while clarifying that the evidence recorded in the above- captioned second petition would not be transposed in the above-captioned first petition or vice versa. It is matter of record that Will of 20th November, 1984 has been set up in the written statement filed in the above-captioned first petition, therefore, issue No.2 framed in the above-captioned first petition relates to the Will set up in the above-captioned second petition. Learned counsel for Smt. Krishna (whose now being represented TEST. CAS.12/1990 & 16/1998 Page 4 of 10 by her legal heir-Ms. Neera Babbar) submits that Will of 31st August, 1971 is a registered Will and its formal proof has been dispensed with vide order of 27th November, 2000 and though the witness from concerned Registrar’s office was present, he was discharged and the order of 27th November, 2000 has attained finality. Learned counsel for Smt. Krishna further submits that there is no effective cross-examination of Ajay Chawla, Naveen Gulati and even Smt. Neeru Babbar regarding the Will of 31st August, 1971 and in view of evidence of CFSL expert (PW-4), the Will of 31st August, 1971 ought to be probated. At this stage, it is pointed out by counsel opposite that Naveen Gulati (PW-3) in his cross-examination has denied the suggestion in respect of both the Wills in the following manner:-
"“It is incorrect to suggest that will Ex P-1 and Ex PW- 1/BC both bears signatures of my father as an attesting witness No.1.” Undisputedly, Sh. R.R. Gulati (who is no longer in this world) was a witness to the Will of 31st August, 1971 (Ex.P-1) and the subsequent Will of 20th November, 1984 (Ex.P1/C). It is next submitted by learned counsel for Smt. Krishna that the FSL report (Ex.PW4/A) clinches the issue as the CFSL expert has categorically stated in his report that the signatures of late Banarsi Dass on the Will of 20th November, 1984 do not tally with his admitted signatures and the reasons for this opinion are spelt out in this report, which have not been negated in the cross-examination of this expert. TEST. CAS.12/1990 & 16/1998 Page 5 of 10 It is also pointed out that even the signatures of attesting witness- R.R. Gulati on the questioned Will of 20th November, 1984 do not tally with his admitted signatures. Lastly, it is submitted that Ms. Janak Rani in her cross-examination has admitted that the Will of 31st August, 1971 (Ex. P-1) bears the signatures of late Banarsi Dass and attesting witness- R.R. Gulati and Sh.B.K. Chawla and so, the Will (Ex.P-1) stands duly proved. Thus, it is submitted that Will of 31st August, 1971 ought to be probated and the subsequent Will of 20th November, 1984 deserves to be rejected. On the other hand, learned counsel for Ms. Janak Rani submits that the Will (Ex.P-1) is vague as it does not describe the property bequeathed and is utterly vague and so, it needs to be discarded as it cannot be executed. To submit so, reliance is placed upon Supreme Court’s decision in Anil Kak v. Kumari Sharada Raje and Ors., AIR2008SC2195 It is pointed out by learned counsel for Janak Rani that as per Section 281 of Indian Succession Act, the petition is required to be verified by one of the attesting witnesses and since the son of B.K. Chawla has not deposed about the verification of the probate petition, therefore, the probate petition is rendered invalid. It is also submitted that the son of attesting witnesses have not duly identified the signatures of attesting witnesses on the Will (Ex.P-1) and so, it cannot be said that the said Will stands duly proved. In this regard, reliance is placed upon a Single Bench decision of High Court of Calcutta in In the Goods of Phani Bhusan Sinha v. Unknown, (2002) 3 CALLT279HC. It is pointed out that stray line in the cross-examination of Ms. Janak Rani (DW-1) would TEST. CAS.12/1990 & 16/1998 Page 6 of 10 not be sufficient to discard her evidence as it has to be read as a whole and that she has categorically denied the suggestion that Will (Ex.P-1) does not bear the signatures of her father and so, no inference can be drawn that the Will of 20th November, 1984 is not genuine one. The evidence of CFSL expert is assailed by learned counsel for Ms. Janak Rani while drawing the attention of this Court to CFSL report (Ex.PW-4/A) to point out that the admitted signatures Mark A-5 & A-6 of the Testator have been found sufficient to opine that the Will of 20th November, 1984 is not signed by the Testator whereas the same admitted signatures Mark A-5 & A-6 have been opined to be insufficient to compare with the questioned signatures of late Banarsi Dass on the Will of 31st August, 1971 and so, in view of the aforesaid infirmity, CFSL report deserves to be discarded. It is submitted that the evidence by way of affidavit filed by Ajay Chawla (PW-4) is defective as it has come in his evidence that it is not same affidavit which he had signed and so, the Will of 31st August, 1971 does not deserve to be probated. To submit so, reliance is placed upon Supreme Court’s decision in V.R.Kamath v. Divisional Controller, Karnataka State Road Transport Corporation and Others, AIR1997Karnataka 275. Lastly, it is submitted by learned counsel for Ms. Janak Rani that the evidence of eye-witness-T.R. Nayyar and Ms. Veena Ahuja (PW-2), daughter of the Testator, goes to prove the second Will of 20th November, 1984 (Ex.P1/C) and it be probated. Nothing else is urged by either side. After having heard learned counsel for the parties at length and on consideration of the submissions advanced by the respective sides and on TEST. CAS.12/1990 & 16/1998 Page 7 of 10 scrutiny of the evidence on record and on perusing the decisions cited, I find that though the date of Will is not mentioned in the probate petition filed by Smt. Krishna, but the copy of the Will is annexed as Annexure-B to the probate petition and the particulars of movable and immovable properties, which are sought to be probated, are attached as Schedules ‘B’ to ‘D’. So, it cannot be said that the probate petition filed by Smt. Krishna is vague and thus, reliance placed upon Supreme Court’s decision in Anil Kak (Supra) is of no avail. Regarding the technical defect pointed out in filing of evidence by way of affidavit, I find that the witness-Ajay Chawla (PW-4) has clarified in the cross-examination that the evidence by way of affidavit signed by him is the one which is on record and so, nothing turns on it. Reliance placed upon decisions in V.R.Kamath (supra) and Phani Bhusan Sinha (supra) is of no avail as mere omission to identify the signatures on the probate petition by a witness is not sufficient to discard the probate petition because there is no cross-examination of the witness-Ajay Chawla (PW-4) on this aspect. The due execution of the registered Will (Ex.P-1) is duly proved from the evidence of Naveen Gulati (PW-3) and Ajay Chawla (PW-4) and mere denial of suggestion by Naveen Gulati (PW-3) cannot be read out of context. The due registration of the Will (Ex.P-1) has not been disputed by respondent and it is so evident from order of 27th November, 2000. The evidence of CFSL expert clinches the issue of genuineness of Will (Ex.P-1). In the considered opinion of this Court, the evidence of CFSL expert cannot be discarded for the reason that it has not been put to him in TEST. CAS.12/1990 & 16/1998 Page 8 of 10 the cross-examination as to how the admitted signatures were sufficient to opine that the Will of 20th November, 1984 (Ex.P1/C) is not signed by the testator and the attesting witness-R.R. Gulati. So, on this ground, the evidence of CFSL expert cannot be discarded. It is relevant to note that the CFSL expert has categorically opined that the questioned signatures of the testator and the attesting witness-R.R.Gulati on the Will of 20th November, 1984 (Ex.P1/4) do not tally with the admitted signatures. So, the Will of 20th November, 1984 (Ex.P1/4) has been rightly discarded by the CFSL report for the reasons as detailed in the CFSL report (Ex.PW4/A). The genuineness of the Will (Ex.P-1) is also endorsed by Ms. Janak Rani, who has set up subsequent Will of 20th November, 1984 (Ex.P1/C) as in the cross-examination, she has categorically admitted that the Will (Ex.P-1) is duly signed by testator and both the attesting witnesses. In such a situation, I find no hesitation in placing implicit reliance upon registered Will (Ex.P-1) and to discard the subsequent Will (Ex.P-1/C). In view of foregoing narration, issue No.1 is answered in favour of Smt. Krishna and issue No.2 is answered against Ms. Janak Rani. Consequentially, it is held that Smt. Krishna through her legal heir is entitled to grant of probate in respect of the Will of 31st August, 1971 (Ex.P-1) in respect of immovable property as detailed above. However, evidence to claim relief in respect of Schedule ‘C’ is not clinching and hence it is declined. The petition of Smt. Krishna is accordingly allowed whereas the petition of Ms. Janak Rani is dismissed while leaving the parties to bear their own costs. TEST. CAS.12/1990 & 16/1998 Page 9 of 10 Both the petitions are accordingly disposed of. JULY05 2017 s (SUNIL GAUR) JUDGE TEST. CAS.12/1990 & 16/1998 Page 10 of 10