* IN THE HIGH COURT OF DELHI AT NEW DELHI RESERVED ON :
15. h SEPTEMBER, 2017 DECIDED ON :
13. h OCTOBER, 2017 + TEST.CAS. 82/1987 & IA Nos.47
(delay in filing list of witnesses), 48
(additional document), 2
(under O- 18 R-17) & 90
(u/O15R-5 CPC) ........ Petitioner
BHARAT BHUSHAN JAIN THE STATE & ORS versus Through : Mr.V.K.Srivastava with Mr.Abhay Jain, Advocates. ........ RESPONDENTS
Through : Ms.Shalini Kapoor with Ms.R.Dey, Advocates. CORAM: HON'BLE MR. JUSTICE S.P.GARG S.P.GARG, J.
1. The present petition under Section 276 of the Indian Succession Act, 1925 has been preferred by Jain Society For The Protection Of Orphans For India, Darya Ganj, New Delhi (hereinafter referred as ‘the petitioner’) for grant of letters of administration in respect of Will dated 15.10.1977 executed by late Ratan Lal Jain.
2. It is averred that Ratan Lal Jain had executed his last Will and testament on 15.10.1977. Ratan Lal Jain has since expired on 04.03.1978 at Delhi. By the said Will, Ratan Lal Jain – the testator had bequeathed the following properties to the petitioner : (a) property No.4378, Gali Murari Lal, 4, Darya Ganj, New Delhi Test. Cas. 82/1987 Page 1 of 16 (b) Certain money left by him.
3. It is further averred that the petitioner, a society registered under the Societies Registration Act came to know about the Will for the first time in July, 1985 from Sumat Pershad Jain who handed over the original Will subsequently.
4. The petition is contested by the legal heirs and relations of the deceased Ratan Lal Jain. Objections were filed on behalf of Illachi Devi (wife), Sudershan Mala Jain (daughter), Santosh Jain (daughter) and Prakash Chand Jain (son-in-law). They denied execution of any Will dated 15.10.1977 by Ratan Lal Jain. It is averred that the said Will, a forged and fabricated document, was created by the officials of the petitioner in connivance with Jaggi Mal Jain and Sumat Pershad Jain. The Will is shrouded with suspicious circumstances; the contents stated in the Will are incorrect. Signatures of Mool Chand as an attesting witness on the Will are forged; it is not a valid Will.
5. The objectors set up Will dated 26.11.1977 to be the last testament executed by Ratan Lal Jain.
6. The petitioner in rejoinder denied the averments in the objections and reiterated that the Will dated 15.10.1977 was a valid one.
7. On the basis of pleadings of the parties and the documents on record, following issues were framed on 12.05.20
“1. Is the petition for grant of letter of administration barred by time?. Test. Cas. 82/1987 Page 2 of 16 2. Is the present petition filed by Shri Bharat Bhushan to be treated as a fresh petition?. If so, what is the effect on the question of limitation?.
3. Did late Shri Rattan Lal Jain execute the Will dated 15.10.1977?.
4. Did late Shri Rattan Lal execute a Will on 26.11.1977?. If so to what effect?.
5. To what relief, if any, are the petitioners entitled?.” 8. To establish its case, the petitioner examined PW-1 (Bharat Bhushan Jain), PW-2 (Narender Jain), PW-3 (Mahavir Prasad Jain), PW-4 (Chakresh Kumar Jain) and PW-5 (Pritam Singh). The respondents examined RW-1 (Deepak Jain) & RW-2 (A.P.Gupta) – attesting witnesses to the Will dated 26.11.1977, RW-3 (Ashok Kashyap), hand writing expert; R2(d)W-1 (Ratan Lal Jain), RW-2(b) (Mukesh Kumari Jain @ Mukta Jain) and D2W1 (Seema Jain).
9. I have heard the learned counsel for the parties and have examined the file minutely. Learned counsel for the petitioner urged that Will (Ex.PW-1/D) was duly executed by Ratan Lal Jain. Both the attesting witnesses Mool Chand Jain and Jaggi Mal Jain have since expired. Their signatures on the Will have been identified by PW-2 (Narender Jain) – deceased’s nephew and son of Jaggi Mal Jain and PW-3 (Mahavir Prasad Jain), son of other attesting witness Mool Chand Jain. The Will in question was handed over by Sumat Pershad Jain to PW-4 (Chakresh Kumar Jain), the then General Secretary of the society, in the presence of PW-Mool Chand Jain. It is urged that both the attesting witnesses Jaggi Mal Jain and Mool Chand Jain were acquainted with the testator. Jaggi Mal Jain and deceased Ratan Lal Test. Cas. 82/1987 Page 3 of 16 Jain had their houses adjacent to each other. PW-3 (Mahavir Prasad Jain) was familiar with the signatures of Ratan Lal Jain and Jaggi Mal Jain. No material inconsistency has emerged in the statements of the attesting witnesses; the Will dated 15.10.1977 stood proved. Cogent reasons were given by Ratan Lal Jain in the Will in question for bequeathing the property to the society; he made provisions for his wife Illachi Devi and daughter Santosh Kumari. Property No.4378, Gali Murari Lal, 4, Darya Ganj, New Delhi was given to the society with the condition that his wife would have the right to reside on the first floor; Santosh Kumari was permitted to live on the second floor. It cannot be stated that Ratan Lal Jain had ignored his family. Learned counsel further urged that the respondents have not produced on record any credible evidence to prove if Will dated 26.11.1977 (Ex.RW-2/1) was executed by Ratan Lal Jain. None of the attesting witnesses to the Will dated 26.11.1977 have deposed if it was signed by Ratan Lal Jain in their presence or they had signed in the presence of Ratan Lal Jain. Will dated 26.11.1977 has been set up to counter Will dated 15.10.1977.
10. Learned counsel for the respondents controverting the contentions raised by the learned counsel for the petitioner urged that the Will dated 15.10.1977 is a forged and fabricated document and was never executed by the deceased. It was informed that relations between Jaggi Mal Jain and deceased Ratan Lal Jain were not cordial during his life time. PW-2 (Narender Jain) had filed an application under Order I Rule 10 CPC in the proceedings M. Rais vs. Prem Chand Jain claiming himself to be adopted son of the deceased Ratan Test. Cas. 82/1987 Page 4 of 16 Lal Jain. Jaggi Mal Jain had filed a complaint (Ex.PW-1/D5) on 14.11.1981. The petitioner had issued a letter dated 11.08.2005 (Ex.D4) to the tenants claiming ownership on the basis of Will which was not in their knowledge till 05.04.1986. The deceased had cordial relations with all the legal heirs and had no reasons to deprive them of the properties owned by him. The Will in question has been forged in connivance with Jaggi Mal Jain and Sumat Pershad Jain who nurtured animosity with the respondents to divest them of their legal right.
11. I have considered oral as well as written submissions and have scrutinised the file minutely. Issue wise findings are as under : Issues No.1 & 2 12.
13. Both these issues have not been pressed. By an order dated 22.01.1991 reference was made by the learned Single Judge to a larger Bench on the issue if the petitioner, a society registered under the Societies Act, 1860 was prohibited from obtaining letters of administration under Section 236 of the Indian Succession Act, 1925, Division Bench of this Court held vide order dated 17.08.2001 that the society was entitled to obtain letters of administration. On 26.09.2013, Hon’ble Supreme Court while allowing the appeal in part remitted the case back. It was held that the society would amend the petition for grant of letters of administration and nominate one of its office bearers to whom letters of administration could be granted. In compliance of the said orders, Bharat Bhushan Jain, the Finance Secretary of the society was permitted to proceed with the petition. Test. Cas. 82/1987 Page 5 of 16 14. It is averred in the petition that the petitioner came to know about the Will in question in April, 1986. Considering the averments, the petition cannot be considered as barred by limitation. Both the issues decided in favour of the petitioner and against the defendants. Issue No.3 15. I have examined Will (Ex.PW-1/D) purportedly executed by Ratan Lal Jain on 15.10.1977. It is a comprehensive unregistered typed Will. It cannot be discerned from the Will as to at which place the Will was typed. It is unclear whether the Will in question was typed at the residence or at some other specific place and who typed it. Name of the scribe of the Will does not find mention. It is signed only by Ratan Lal Jain and the attesting witnesses Mool Chand Jain and Jaggi Mal Jain. Both the attesting witnesses were dead before they could be examined in the Court.
16. The Will dated 15.10.1977 did not see the light of the day till 1987. No plausible explanation has been offered by the petitioner or the petitioner’s witnesses as to why the Will was kept undisclosed for long ten years after the death of the testator. It is not clear as to when the Will in question was handed over by the testator and if so, to whom. There is no mention in the Will (Ex.PW-1/D) if it would remain in the custody of a particular individual.
17. In the petition, it was not specifically averred as to in whose possession the ‘Will’ remained before it was delivered to the petitioner. In para 8 of the petition, it was disclosed that the society came to know about the Will for the first time in July, 1985 from Test. Cas. 82/1987 Page 6 of 16 Sumat Pershad Jain and the original Will was handed over by him to the society later on. There is no specific plea as to on what specific date in July, 1985, the petitioner came to know about the existence of the Will and if so, by what mode. There is no categorical assertion as to when the original Will was handed over by Sumat Pershad Jain to the petitioner and if so, on what date and at what time. It was also not disclosed as to, to whom the Will was handed over and what proceedings regarding handing over of the Will were recorded in the society’s record.
18. In the evidence PW-1 (Bharat Bhushan Jain) informed that the Will was handed over by Sumat Parshad Jain to Chakresh Kumar Jain; he came to know about it when the Will was produced before the Managing Committee or the society prior to the filing of the present petition somewhere in 1982. He informed that a resolution was passed when the Will was produced before the Managing Committee. However, no such resolution was brought on record. PW-4 (Chakresh Kumar Jain) stated in the cross-examination that the Will dated 15.10.1977 was seen by him for the first time on 05.04.1986. He had spoken with Prakash Chand Jain regarding said Will after about a week. Admittedly, he did not issue any legal notice to any legal representative of Ratan Lal Jain as regard the property bequeathed in favour of the society. He further revealed that on 05.04.1986 the original Will was delivered to him personally by Sumat Parshad Jain; he was accompanied by his relative Mahavir Prasad Jain. Notice (Ex.D4) dated 11.08.1985 issued to the tenants by the society was shown to the witness and he was asked to explain as to Test. Cas. 82/1987 Page 7 of 16 on what basis the notice (Ex.D4) was issued on 11.08.2005. After going through the contents of Ex.D4, the witness expressed ignorance as to on what basis the said notice was issued when the original Will was not in their knowledge. He was unable to disclose in the cross- examination as to what money was ever donated by Ratan Lal Jain during his life time to the society. PW-3 (Mahavir Prasad Jain) – Mool Chand Jain’s son informed in the cross-examination that the Will in question remained with Sumat Parshad Jain only after its execution on 15.10.1977; it was handed over by Sumat Parshad Jain to Chakresh Kumar Jain in his presence in 1986. He did not give any specific date when the original Will was handed over to PW-4 (Chakresh Kumar Jain). He did not reveal if any proceedings were noted in the register of the society when the original Will was handed over. Sumat Parshad Jain has not been examined to substantiate and corroborate this crucial fact.
19. PW-2 (Narender Jain) disclosed in the cross-examination that the Will dated 15.10.1977 was seen by him for the first time on the previous date of hearing before the Court. He volunteered to add that he had seen its photocopy on an earlier date, he did not specify when it was seen.
20. No credible evidence has emerged on record to prove if after the execution of the Will, it was handed over by the testator Ratan Lal Jain to Sumat Parshad Jain. It is also not clear as to when Sumat Parshad Jain handed over the original Will to the society. Document on the letterhead of Mool Chand Sumat Prashad Jain dated 05.04.1986 has been filed on record by the petitioner to show that the Test. Cas. 82/1987 Page 8 of 16 society had received the original Will on 05.04.1986. This document has not been proved on record. Moreover, this document purportedly was written on 04.04.1986. It records that the original Will was being sent. It, however, did not reveal as to through whom the original Will was being sent. It also did not show as to who had received the original Will. PW-4 (Chakresh Kumar Jain) did not identify his signatures on the letter dated 05.04.1986. This document further records that previously a photocopy of the Will was sent. It is, however, not clear as to when the photocopy was sent. Two dates 04.04.1986 and 05.04.1986 emerging on the letterhead creates suspicion about the document in question.
21. No plausible explanation has been offered by the witnesses examined on behalf of the petitioner as to why the Will in question was not handed over within a reasonable time by the custodian of the Will to the beneficiaries.
22. As observed above, both the attesting witnesses to the Will have already expired. PW-2 (Narender Jain) and PW-3 (Mahavir Prasad Jain) have identified signatures of the attesting witnesses in their deposition before the Court. They were unaware if Ratan Lal Jain had executed any Will and any of them was beneficiary therein. PW-2 (Narender Jain) is an attesting witness. It has come on record that relations between the deceased Ratan Lal Jain and Jaggi Mal Jain – Narender Jain’s father were strained during his life time. PW-2 (Narender Jain) had claimed himself to be an adopted son of the deceased. The respondents have proved on record an application under Order I Rule 10 CPC (Ex.PW-1/D2) filed by PW-2 (Narender Test. Cas. 82/1987 Page 9 of 16 Jain) in an eviction petition titled M.Rais vs. Prem Chand Jain on 09.09.1981 through his counsel. In this application Narender Jain had claimed himself to be the adopted son of deceased Ratan Lal Jain. It was further claimed that Ratan Lal Jain’s wife Illachi Devi was of unsound mind due to her illness and old age. No particulars as to when Narender Jain was adopted by Ratan Lal Jain were disclosed. An application under Section 151 CPC (Ex.PW-1/D3) for stay of proceedings was also filed on 09.09.1981 by PW-2 (Narender Jain). It was accompanied by an affidavit (Ex.PW-1/D4). Vide order dated 07.11.1981, the learned Tribunal in RC1051980 dismissed the application under Order I Rule 10 CPC. It is not clear if the said order was ever challenged by the applicant PW-2 (Narender Jain). In the cross-examination, PW-2 (Narender Jain) was specifically asked if he had filed any such application under Order I Rule 10 CPC or the application (Ex.PW-1/D3) contained his signatures, he did not furnish clear answer and avoided it by giving evasive response. He expressed ignorance if these documents contained his signatures. The judicial record cannot be suspected. Apparently, PW-2 (Narender Jain) had attempted to claim himself to be the adopted son of the deceased Ratan Lal Jain which fact to his knowledge was false. Even the Will dated 15.10.1977 does not disclose if PW-2 (Narender Jain) was ever adopted by Ratan Lal Jain as his son. No adoption deed is on record. No ceremonies on any specific date have been proved for adoption purpose.
23. Jaggi Mal Jain, the attesting witness had lodged complaint (Ex.PW-1/D5) on 14.11.1981 against Prakash Chand Jain Test. Cas. 82/1987 Page 10 of 16 along with his sons regarding certain construction in the common area. The said matter was, however, settled and Jaggi Mal Jain did not pursue the police action further. This document does not reflect if Ratan Lal Jain had executed any Will and Jaggi Mal Jain was an attesting witness to it. It records that after the death of his brother Ratan Lal Jain, his legal heirs were Illachi Devi and daughters - Sudershan Mala Jain and Santosh Kumari Jain. It also records that Santosh Kumari Jain wife of Prakash Chand Jain with her family was living along with her mother Illachi Devi in the suit property; the other sister Sudershan Mala Jain was living along with her family at Meerut.
24. The respondents have also placed on record a document (Mark ‘B2’) dated 26.07.1985 which has not been proved showing that a complaint was made against Sumat Pershad Jain, R/o D9, Shastri Park for occupying the second floor of the property situated at 1227-1232, Kaccha Bag, Chandani Chowk unlawfully.
25. No evidence has surfaced if PW-2 (Narender Jain) used to reside along with deceased Ratan Lal Jain during his life time in the suit property. The respondents have placed on record Ex.RW-
– house tax record where Narender Jain’s name does not appear to be one of the occupants. Both PW-2 (Narender Jain) and PW-3 (Mahavir Prasad Jain) are interested witnesses. As per the Will dated 15.10.1977 they are also the beneficiaries.
26. It has come on record the Prakash Chand Jain deceased’s son-in-law used to live along with his family at Mumbai. Undeniably deceased Ratan Lal Jain brought them to Delhi and thereafter, they lived in the premises in question. RW-1 (Deepak Jain) in his affidavit Test. Cas. 82/1987 Page 11 of 16 (RW-1/A) dated 12.07.2012 disclosed that his father was trading in cloth in Mumbai. Since his grandfather was not keeping good health in 1973, he called his father to Delhi to assist him in the business. His father wound up the business from Mumbai and shifted to Delhi along with his family and started residing along with Ratan Lal Jain and his grandmother Illachi Devi in the property No.4378/4B, Darya Ganj, New Delhi. He further deposed that his father started working with Ratan Lal Jain at his shop at 1230, Kaccha Bagh, Chandni Chowk, Delhi. The children of Prakash Chand Jain got their education in Delhi. Nothing has come on record to show if the relations between the deceased Ratan Lal Jain and family of RW-1 (Deepak Jain) were strained any time to deprive them share in the property in question.
27. In view of above, execution of the Will dated 15.10.1977 seemingly is surrounded by suspicious circumstances. The petitioner has failed to dispel such suspicious circumstances. This issue is decided in favour of the respondents and against the petitioner. Issue No.4 28. The respondents have set up Will dated 26.11.1977 (Ex.RW-2/1) executed by Ratan Lal Jain to be his last Will. The petitioner has described this Will (Ex.RW2/1) as forged and fabricated. Initially in the objections filed on behalf of Sudershan Mala Jain, (deceased’s daughter) execution of Will dated 26.11.1977 was not disputed. Sudershan Mala Jain, however, expired on 05.02.2008 and her legal heirs were brought on record. They filed objections and claimed that both the Wills dated 15.10.1977 and Test. Cas. 82/1987 Page 12 of 16 26.11.1977 were forged and fabricated and no Will was ever executed by deceased Ratan Lal Jain.
29. The Will (Ex.RW2/1) dated 26.11.1977 is a typed Will. It was signed by the attesting witnesses RW-2 (A.P.Gupta) and one Basant Kumar Jain. The respondents have examined attesting witness A.P.Gupta as RW-2. In the detailed affidavit by way of evidence (Ex.RW-2/A), A.P.Gupta gave detailed account as to how and under what circumstances the Will (Ex.RW2/1) was signed by him as attesting witness. He further deposed that Basant Kumar Jain, Advocate was his colleague and friend at Tis Hazari Courts. Ratan Lal Jain, the executant used to come to Basant Kumar Jain, Advocate in connection with his cases. On seeing Will dated 26.11.1977 executed by Ratan Lal Jain, RW-2 (A.P.Gupta) deposed that it was signed by Ratan Lal Jain at points X1 to X4 on all the pages. It was also signed by Basant Kumar Jain as an attesting witness. He had also signed the Will dated 26.11.1977 executed by Ratan Lal Jain as an attesting witness. Ratan Lal Jain had signed the Will in his presence and in the presences of Basant Kumar Jain and both of them had put signatures in the presence of Ratan Lal Jain. He further elaborated that Will dated 26.11.1977 was drafted by Bansant Kumar Jain. Before getting signatures on the Will, it was read over and explained by Basant Kumar Jain in his presence, thereafter, Ratan Lal Jain had signed it. Basant Kumar Jain has since expired in 2006.
30. In the cross-examination, he informed that Basant Kumar Jain, Advocate who was practicing in Tis Hazari Courts used to sit next to him on a seat which had no number. He fairly admitted that he Test. Cas. 82/1987 Page 13 of 16 did not conduct any case for Ratan Lal Jain. He further admitted that the Will was not typed in his presence. He denied the suggestion that he did not sign in the presence of Ratan Lal Jain nor did Ratan Lal Jain had signed in his presence. He disclosed that Ratan Lal Jain was accompanied by a young boy aged 12 / 13 years.
31. On scrutinising the testimony of the attesting witness, it reveals that material facts deposed by him in his evidence by way of evidence (Ex.RW-2/A) have remained unchallenged and uncontroverted. No suggestion was put to the witness if the Will (Ex.RW-2/1) did not bear signatures of Ratan Lal Jain. No ulterior motive was assigned to the attesting witness for making a false statement. It is relevant to note that at the time of examination before the Court on 23.01.2013 A.P.Gupta was aged around 81 years. Apparently, he had no ulterior considerations to make a false statement to support the respondents particularly when no animosity or motive was attributed to him. Nothing was suggested to him that when the Will was drafted by Basant Kumar Jain, Advocate, Ratan Lal Jain was not accompanied along with a boy aged around 12 / 13 years to Tis Hazari Courts. RW-1 (Deepak Jain) in his affidavit (Ex.RW-1/A) corroborated his version and stated that Will dated 26.11.1977 was signed by Ratan Lal Jain at points X1 to X4. He further claimed himself to be present at the time when Ratan Lal Jain had signed the Will. He clarified that he had accompanied to Tis Hazari Courts to the seat of Basant Kumar Jain, Advocate. He knew Basant Kumar Jain, Advocate being his nana’s advocate and looking after his legal work. He used to call him ‘tau ji’. He further revealed Test. Cas. 82/1987 Page 14 of 16 that he used to go to the office of Basant Kumar Jain, Advocate at Darya Ganj, Delhi. RW-2 (A.P.Gupta) was also known to him as he sat near Basant Kumar Jain’s seat. The Will dated 26.11.1977 was signed by his grandfather in their presence and they also signed in his presence and in the presence of each other. These facts have not been controverted in the cross-examination.
32. D2W1 (Seema Jain) in her evidence by way of affidavit (Ex.D2W1/A) disclosed that she was younger daughter of Sudershan Mala Jain and grand-daughter of Ratan Lal Jain. She denied if Ratan Lal Jain had executed any Will dated 26.11.1977. In the cross- examination, she, however, admitted that the Will dated 26.11.1977 was executed by Ratan Lal Jain.
33. R2 (d)W-1 (Ratan Lal Jain) though denied the execution of Will dated 26.11.1977 did not furnish any basis for saying so. He lived along with his family in Meerut and used to occasionally visit Delhi. He was not aware if any Will was executed by Ratan Lal Jain. His testimony is of no relevance. Similar is the testimony of RW-2(b) (Mukesh Kumari Jain @ Mukta Jain) who was married in 1981 and lived at Meerut. The objectors have thus failed to produce any cogent and credible evidence to establish that Ratan Lal Jain died intestate and had never executed any Will. No application was filed by the objectors to recall attesting witness RW-2 (A.P.Gupta) for cross- examination to challenge the execution of the Will and his signatures as an attesting witness thereon.
34. No weightage can be attached to the report of the handwriting expert (Ex.RW-3/PX1). In the report, he stated that both Test. Cas. 82/1987 Page 15 of 16 the Wills dated 15.10.1977 and 26.11.1977 were forged and fabricated and did not contain signatures of Ratan Lal Jain. In the cross- examination D2W1 (Seema Jain) admitted that the opinion of the handwriting expert was obtained furnishing only photocopies of the documents containing signatures of the deceased Ratan Lal Jain. Needless to say that the evidence of the handwriting expert is a weak type of evidence. The objections filed by the objectors, thus, cannot be sustained. The respondents have brought on record sufficient evidence to infer that the Will dated 26.11.1977 was executed by Ratan Lal Jain.
35. This issue is decided in favour of the contesting respondents and against the petitioner. Relief 36. In view of the findings on the issues above, the petition filed by the petitioner is dismissed with no order as to costs.
37. Objections filed by the objectors i.e. legal heirs of Sudershan Mala Jain are dismissed. (S.P.GARG) JUDGE OCTOBER13 2017 / tr Test. Cas. 82/1987 Page 16 of 16