IN THE COURT OF SH. GAJENDER SINGH NAGAR : LD.
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL
RENT CONTROLLER (CENTRAL) : DELHI
Petition No. : SC/32757/16
In the matter of:
Sh. Kapilesh Pandey,
S/o. Late Sh. Dina Nath Pandey,
R/o. MIG Flat No. 92, Plot No. 14,
Akash Kunj, Sector9, Rohini,
Delhi110085.
….Petitioner.
Versus
1 The State (NCT of Delhi).
2 Mrs. Kiran Jhingran,
W/o. Sh. Sandeep Jhingran,
R/o. 60A, Press Enclave,
Mayapuri, New Delhi.
3 Mrs. Manju Sharma,
W/o. Sh. Rajender Sharma,
R/o. B20, Subhash Park,
Uttam Nagar, New Delhi.
4 Mrs. Sonia Talwar,
R/o. MIG Flat No. 92,
Sector9, Rohini,
Delhi110085.
5 Ms. Lavika,
D/o. Smt. Sonia Talwar,
W/o. Not Known,
Petition no. SC/32757/16
R/o. MIG Flat No. 92,
Sector9, Rohini,
Delhi110085.
…..Respondents.
Date of Institution : 21.03.2002
Date of order when reserved : 31.08.2018
Date of order when announced : 12.09.2018
J U D G M E N T :
1 The present succession petition has been filed by the
petitioner namely Sh. Kapilesh Pandey in his favour in respect of bank
balance and Fixed Deposits left by Sh. Dina Nath Pandey, who died
on 23.02.2002, claiming that the deceased Sh. Dina Nath Pandey was
his father. Respondents no. 2 and 3 namely Kiran Jhingran and Manju
Sharma were stated to be daughters of the deceased. Respondent No.
4 namely Sonia Talwar was stated to be living with the deceased. Vide
an application Under order 1 Rule 10 Code of Civil Procedure Kumari
Lavika daughter of Sonia Talwar became respondent no. 5 in the
matter.
2 After filing of this petition, notice was given to the general
public by way of publication in the newspaper ‘The Indian Express”
dated 06.08.2002, but none has appeared from general public to
Petition no. SC/32757/16
oppose or contest the present petition.
3 Objection filed on behalf of respondents no. 2 and 3
namely Mrs. Kiran Jhingran and Mrs. Manju Sharma wherein it is
averred that only petitioner and respondents no. 2 and 3 are the legal
heirs of the deceased. It is stated that respondent no. 4 is not a legal
heir of the deceased. It is further averred that the petitioner is not the
only successor as claimed under the present petition as the ”Will” left
by Late Sh. Dina Nath Pandey has categorically stated the shares of
his legal heirs. It is stated that petitioner has concealed the ”Will”. It is
averred that petitioner has concealed the fact that respondent no. 4 is
claiming to be a legally wedded wife of the deceased Dina Nath
Pandey.
4 Reply filed on behalf of the petitioner to the
objection/written statement filed by the respondents no. 2 and 3
wherein it is averred that deceased has died intestate and any such
‘Will’ is forged. It is submitted that after the death of the deceased
petitioner and respondents no. 2 and 3 entered into a Memorandum of
Understanding terms of which are quite different from the terms of the
Petition no. SC/32757/16
alleged ”Will”. It is submitted that the respondent no. 2 in connivance
with respondent no. 3 has prepared the said ”Will” with the malafide
intention to grab the entire property, respondents no. 2 and 3 have
forged the signatures of the deceased on the ”Will”.
5 Written statement/Objections filed on behalf of objector
Sonia Pandey wherein it is averred that the name of objector/applicant
has been wrongly mentioned as Sonia Talwar instead of correct name
Sonia Pandey. It is stated that a civil suit is pending qua inheritance of
the properties of the deceased, hence the present petition is not
maintainable. It is submitted that Late Sh. Dina Nath Pandey married
to Smt. Sonia Pandey on 30.01.2000 at Arya Samaj Vedic Temple, 15,
Hanuman Road, New Delhi according to Hindu rites and customs in
the presence of many persons and the photographs were also obtained
while the ceremonial rites and functions were performed by the couple
at the aforesaid temple. It is submitted that she is the legally wedded
wife of Late Sh. Dina Nath Pandey. It is submitted that her name was
being given by Late Sh. Dina Nath Pandey at various places including
in his service records etc. and she has been shown by him as his
Petition no. SC/32757/16
nominee. It is submitted that she and the deceased Sh. Dina Nath
Pandey since the day of their marriage resided together as husband and
wife and within the knowledge of everyone including petitioner and
other relatives, friends, neighbours and the society as such there was
no occasion for late Sh. Dina Nath Pandey or for the petitioner to
allege that Smt. Sonia was not legally wedded wife of Late Sh. Dina
Nath Pandey, rather the same proves and creates a doubt on the
execution of the alleged ‘Will’. It is submitted that Late Sh. Dina Nath
Pandey has left no ‘Will’ and as such all relations including the
objector are entitled to succeed according to the provisions of Indian
Succession Act. It is submitted that Miss Lavika Pandey is the
adopted/step daughter of Late Sh. Dina Nath Pandey and as such she is
also entitled to succeed the properties of Late Sh. Dina Nath Pandey.
It is submitted that the petitioner has not come to the Court with clean
hands and has suppressed the true material facts from this Court and as
such the petition deserves dismissal. It is submitted that the petitioner
has concealed his actual address as petitioner is not residing at the
address mentioned in the petition since he was not having good terms
Petition no. SC/32757/16
with late Sh. Dina Nath Pandey and in the life time of Late Sh. Dina
Nath Pandey, the petitioner started living separately because of
differences between him and the deceased Sh. Dina Nath Pandey and
the petitioner has concealed his address and has given the present
address being false and because of this fraudulent act of the petitioner,
the petition is liable to be dismissed.
6 Reply on behalf of the petitioner to the objection/written
statement filed by the respondent no. 4 has been filed denying all the
allegation made by the respondent no. 4. It is submitted that after the
death of his father on 23.02.2002, the petitioner gave a written notice
dated 15.03.2002 to the Manager of Oriental Bank of Commerce, Air
Force Station branch, Palam, Delhi through the registered post for not
to make any transaction in the account of the deceased father of the
petitioner. It is submitted that he filed the present petition for grant of
Succession Certificate in his favour on 21.03.2002 whereas the
defendants no. 2 and 3 under connivance filed a civil suit for
declaration, permanent injunction and rendition of accounts some
time in June, 2002, on the basis of forged and fabricated document i.e.
Petition no. SC/32757/16
”Will”. It is submitted that the respondent no. 2 in connivance with
the respondent no. 3 has forged the signature of the petitioner’s father
and made the said ”Will” as basis of the said civil suit. It is submitted
that his father was married with Late Smt. Jamvanti Pandey. It is
submitted that his father late Sh.Dina Nath Pandey had three progeny
from this wedlock, one son (petitioner herein) and two daughters
(respondents no. 2 and 3). It is submitted that after the death of Smt.
Jamvanti Pandey on 22.09.1999, his father came in contact with the
objector no. 4 and he brought her to his home, since then they both
started living together by mutual consent. It is submitted that it is not
in his knowledge that any marriage was solemnized between the
objector and his father. It is submitted that the objector was
previously married with some Surinder Kumar Malik, residing at E
133,West Patel Nagar, New Delhi and after his death she came in
contact with his father and they started living together. It is submitted
that after the death of his father he enquired from the objector about
her status, but instead of giving any reply, she behaved rudely and did
not show any documents or any photograph or any certificate
Petition no. SC/32757/16
whatsoever to the effect that there was any marriage between the
deceased and the objector.
7 Statement of respondent no. 5 Ms. Lovika Pandey has been
recorded with regard to her no objection to grant of Succession
Certificate in favour of respondent no. 4 Mrs. Sonia Talwar @ Sonia,
who is her mother in respect of debts and securities of deceased Sh.
Dina Nath Pandey.
8 In order to substantiate his case, petitioner examined
himsel as PW1. It is stated that he is the only son of his father Late
Sh. Dina Nath Pandey, who is survived by two married daughters,
who are respondents no. 2 and 3, apart from himself. It is stated that
his father died on 23.02.2002 at Saroj Hospital, Rohini, Delhi. It is
stated that at the time of death of his father, his mother was no more.
It is stated that she died in the year 1999. It is stated that at the time
of death of his mother, respondent no. 4 has been residing with his
father. The death certificate of his father is Ex. PW1/1. It is stated
that the status of respondent no. 4 was not clear to him at the time of
death of his father and still today. It is stated that after the death of his
Petition no. SC/32757/16
father, he had sent a legal notice through his counsel to the Manager of
the bank, where his father was maintaining two bank accounts. It is
stated that the present petitioner had requested the Manager not to
release any amount without the order of competent authority. The
legal notice is Ex. PW1/2 and the registry slip is Ex. PW1/3. It is
stated that the officer from bank have produced documents in respect
of two bank accounts. In one account, there is a balance of
Rs.7,56,347/ whereas in the second account there is a balance of
Rs.1,659/ and the certificate issued by the bankers in this regard is
Ex. PW1/4. In his cross examination, he showed his ignorance to the
‘Will’ dated 18.02.2002, it is stated by him that he had never seen the
‘Will’. It is stated by him that the civil suit was disposed of by District
Court of Haryana under a compromise as per which plot no. T02,
New Palam Vihar, Gurgaon, Haryana was equally transferred in the
name of three legal heirs i.e. Kiran Jhingran, Manju Sharma and this
witness. It is stated that there is no mention of the ‘Will’ in the
compromise.
9 On the other hand, respondents no. 2 and 3 have examined
Petition no. SC/32757/16
four witnesses. RW1 Smt. Manju Sharma deposed that from the
wedlock of her mother, Smt. Jamawanti @ Maya Devi and her father,
two daughters namely Kiran and Manju (herself) and one son namely
Sh. Kapilesh, the present petitioner were born. It is stated that her
mother Smt. Jamawanti expired on 22.09.1999 during the life time of
her father. It is stated that the deceased Sh. Dina Nath, whose
succession certificate had been applied before this Hon’ble court
during his life time had bequeathed his assets by executing a ‘Will’
dated 18.02.2002 which was read over to them upon his death on
21.03.2002. A copy of the ‘Will’ executed by their father is Mark A.
It is stated that at the time of death of their father, he was residing at
Flat No. 92, Aakash Kunj, Plot No. 14, Sector9, Rohini, Delhi which
he had self acquired during his services with the Indian Air Force. It
is stated that by virtue of ‘Will’ dated 18.02.2002, their father has
bequeathed the assets generated by him during his life time. It is stated
that as per ‘Will’, Flat No. 92, Aakash Kunj, Plot No. 14, Sector9,
Rohini, Delhi85 and 50% of bank balance and FDR’s of the deposit
with all banks, securities and insurance claims etc. have been given to
Petition no. SC/32757/16
respondent no. 2. It is stated that as per ‘Will’, ½ share of plot of land
measuring 1000 sq. yards plot no. T02, situated at New Palam Vihar,
Gurgaon, Haryana and 50% of bank balance and FDRs of the deposit
with all banks, securities and insurance claim etc. has been given to
respondent no. 3. It is stated that as per ‘Will’, ½ share of plot of land
measuring 1000 sq. yards plot no. T02, situated at New Palam Vihar,
Gurgaon, Haryana and a Maruti Car 800 C.C. DLX Model bearing
registration No. HR264747 and all household goods has been given
to the petitioner. It is stated that apart from the aforesaid distribution,
the deceased had also made provision for all of his other assets as
detailed in the ‘Will’. It is stated that her sister i.e. respondent no. 2
has become the absolute owner of the flat no. 92, Aakash Kunj, Plot
No. 14, Sector9, Rohini, Delhi. It is stated that after coming to know
about the aforesaid ‘Will’, the petitioner had filed a suit for Declaration
regarding the property comprising of plot No. T02, situated at New
Palam Vihar, Gurgaon (Haryana) before the Court of Ld. Civil Judge
bearing suit no. 147/2003 titled as “Kapilesh Pandey Vs. Kiran
Jhingran” and in the said suit a compromise decree dated 02.04.2005
Petition no. SC/32757/16
has been passed whereby Plaintiffs and the Defendant no. 2 have been
declared to be the owners of 1/3rd share each in the aforesaid property
of Gurgaon. A copy of the plaint filed by the petitioner is Ex. RW3/1
and the copy of the compromise judgment/decree dated 02.04.2005
passed by the court is Ex. RW3/2. It is stated that one of the objectors
namely Sonia Malik wrongly named herself as Sonia Pandey before
this court and her daughter Lavika are not legally entitled to claim
themselves as legal heir of the deceased, Sh. Dina Nath Pandey, but
under the greed of the property they are claiming rights on the
property of the deceased without any right therein. It is stated that the
said objectors by misrepresenting the facts to the banks the
department of the deceased about she being the wife and daughter
respectively of the deceased have withdrawn a sum of Rs.20,00,000/
from the account of their father and has also availed Rs.5,00,000/
towards Group Insurance Scheme from the Air Force Station and
further a sum of Rs.2,00,000/ towards leave encashment and is also
receiving pension from the Air Force Station. It is stated that besides
the aforesaid amount, the said objector Sonia is in possession of
Petition no. SC/32757/16
jewelery worth Rs.5,00,000/ and household goods worth
Rs.5,00,000/ which are required to be accounted for by her. It is
stated that the said objector is liable to render the account to her for
the same for which the suit for declaration, possession, permanent
injunction is already pending. It is stated that in the said suit objector
Lavika had filed an application Under order 1 Rule 10 CPC which was
dismissed by the order dated 04.09.2004 and the copy of the said order
is Ex. RW3/4. It is stated that they wrote a letter to the bankers for
stopping the release of the payment to the said objector. It is stated
that the copy of the letters written by her to various departments are
exhibited as Ex. RW3/5 (Collectively). The legal notice dated
03.06.2002 sent to the said objector is Ex. RW3/6 and courier receipts
evidencing the dispatch thereof and proof of delivery are exhibited as
Ex. RW3/7, Ex. RW3/8 and Ex. RW3/9. It is stated that after his
retirement from the service deceased came back to Delhi from
Allahabad alongwith his belongings, the various articles, household
goods belonging to the deceased were sent by the Air force department
from Allahabad to Delhi and the articles brought by the deceased to
Petition no. SC/32757/16
the Rohini house are depicted in the certificate dated 31.01.2002
issued by Air Force. A copy of the said certificate is exhibited as Ex.
RW3/10. It is stated that the articles shown in Ex. RW3/10 are also
in care and custody of the said objector – Sonia on which she has got
no right and only they are entitled to claim the same. It is stated that
the objectorSonia after the alleged marriage on 30.01.2000 has
transferred the property bearing House No. E133, West Patel Nagar,
New Delhi by virtue of General Power of Attorney, Special Power of
Attorney, Receipt, ‘Will’ dated 09.06.2000 registered with Sub
RegistrarII, Janakpuri, New Delhi wherein the said objector has
admitted herself to be wife of Sh. Surender Malik and the copy of the
said document is Mark B. It is stated that it seems that business of the
said objector is to encash the relationship as earlier also under the garb
of her relationship with one, Sh. Surinder Kumar Malik, she has
threatened, trapped and coerced her mother in law, Smt. Laxmi Devi
to enter into a Family settlement deed dated 09.10.1998, a copy of the
family settlement entered into by the defendant no. 1 is Mark C. It is
stated that as per the ‘Will’ left by her deceased father, the said
Petition no. SC/32757/16
objectorSonia has no right, title or interest in the abovesaid
assets/properties. It is stated that even the various funds of her father
are lying with Oriental Bank of Commerce, Palam branch, Air Force
Station, Delhi which can only be claimed by her and the said objector
has no right on the same. In her cross examination, it is stated by her
that her father was a law graduate. It is stated that she got married in
the year 1999. It is stated that her elder sister married one year prior
to marriage of this witness. It is stated that at the time of her marriage,
her brother Akhilesh (this might be a typographical error as name of
her brother is Kapilesh) was staying with her father and this witness
used to visit her father regularly. It is stated that her father expired on
23.02.2002. It is stated that after the death of her father, the dispute
regarding cash and property arose. It is voluntarily stated that lady
Sonia created the dispute. It is stated by her that ‘Will’ of her father
was registered on 23.04.2002. It is stated by her that factum of the
‘Will’ came to her notice as well as to the notice of all the members of
the family including Sonia. She could not tell the exact date when the
‘Will’ was revealed. It is stated that it was 13th day after the death of
Petition no. SC/32757/16
her father. It is voluntarily stated by her that day the date was
21.03.2002. The place was Rohini. It is stated that her father was not
suffering from any disease. It is stated that factum of death was
intimated to her on phone.
10 RW2W2 Sh. Lal Chand deposed that he is the witness of
the ‘Will’ executed by the deceased, Sh. Dina Nath Pandey. The ‘Will’
dated 18.02.2002 is exhibited as Ex. RW2/W2/1 which bears his
signatures at point A as a witness to the same. It is stated that the said
‘Will’ had been got written by the deceased Sh. Dina Nath Pandey in
his presence and after understanding its imports and in a healthy state
of mind, he had signed the said ‘Will’ in his presence and after his
signatures, this witness has also signed the said ‘Will’ at point ‘A’ as a
witness to the same. It is stated that he had been called before the
SubRegistrar Office at Asaf Ali Road, Delhi wherein after recoding
his statement, the ‘Will’ was registered by the said office. It is stated
that he came to know that deceased had expired on 23.02.2002 after
the execution of the aforesaid ‘Will’. An objection was raised by the
opposite counsel that the document Ex. RW2/W2/1 (i.e. the ”Will”)
Petition no. SC/32757/16
is not the original document rather black and white copy of the same,
it was further objected that the document has been produced for the
first time in the Court in the testimony of Lal Chand. In his cross
examination, it is stated by this witness that deceased was know to
him being a friend of his father. It is stated that the Testator has got
the ‘Will’ written from someone at Janakpuri authority. It is stated
that the ‘Will’ was got written in his presence, as the deceased was
dictating and a typist was typing the same in the Computer. It is stated
that he signed the ‘Will’ on the same day when it was typed. It is stated
that deceased was the first one to put signature on the ‘Will’, thereafter,
this witness signed the ‘Will’. It is stated that the ‘Will’ was not
registered on that day, as the token/parchi for registration could not be
received as it was already 3:30 p.m. It is stated that he went again to
Asaf Ali Road office for registration of the ‘Will’. It is stated that a
passport size photograph of him was taken at the Registrar’s office. It
is stated that after the death of Dina Nath Panday, he attended a prayer
meeting at Rohini. It is stated by this witness that earlier the deceased
used to reside at Palam Air Force Staff Quarters, Palam, Delhi. It is
Petition no. SC/32757/16
stated that deceased resided there from 1997 to 2001, it is further
stated that thereafter the deceased started residing at Dhaula Kuan
Staff Quarters. It is stated that he visited the house of the deceased at
Palam around 45 times and his house at Dhaula Kuan twice. He
denied the suggestion that he met Sonia Pandey when he visited the
house of the deceased at Dhaula Kuan. It is voluntarily stated by him
that the deceased used to reside alone at Dhaula Kuan. This witness
could not tell the name of the family members of late Dina Nath
Pandey apart from respondent Manju. It is stated that there was a son
of Sh. Dina Nath, who is residing abroad. It is stated that he has been
working as Laboratory Technical Assistant in Sarvodaya Kanya
Vidhalaya, Samalkha. It is stated that the ‘Will’ was registered 1 ½
month after the death of the deceased. He denied if the ‘Will’ was not
signed by the deceased, he denied if the deceased was of unsound
mind.
11 RW2W3 Sh. Phool Singh, another attesting witness of the
‘Will’ deposed on the same lines as deposed by RW2W2. In his cross
examination, it is stated by him that he met the deceased for the first
Petition no. SC/32757/16
time and only time when he went to Janakpuri authority on 18.02.2002
i.e. when the ‘Will’ was prepared. It is stated that he does’t understand
English language. It is stated that he came to Janakpuri on 18.02.2002
on the request of Lal Chand. It is stated that at the authority Mr. Lal
Chand was accompanying him. It is stated that he is not the witness
in any other ‘Will’ whatsoever except the present ‘Will’.
12 Respondent no. 4 Ms. Sonia Pandey examined herself as
RW4/W2. It is deposed by her that her name is Sonia Pandey
instead of Sonia Talwar as wrongly mentioned in the petition. It is
stated that she is one of the respondent in the present case, she married
Late Sh. Dina Nath Pandey on 31.01.2000 at Arya Samaj Vedic
Temple, 50, Hanuman Road, New Delhi according to Hindu rites and
ceremonies in the presence of many persons. The marriage certificate
is Ex. RW4/1. The photograph of the marriage is Ex. RW4/2. It is
stated that the married daughters of Late Sh. Dina Nath Pandey have
forged and fabricated one ‘Will’ allegedly executed by Sh. Dina Nath
Pandey during his life time and signature affixed on the said document
(‘Will’) are forged and fabricated. It is stated that the deceased Sh.
Petition no. SC/32757/16
Dina Nath Pandey left many properties including one plot in Gurgaon
which is fraudulently sold by his married daughters and petitioner
herein, in collusion. It is stated that she has been appointed as a
nominee by Late Sh. Dina Nath Pandey in his office, it is stated that
she has been declared as wife by Dina Nath Pandey in his all official
records. It is stated that she resided with Sh. Dina Nath Pandey under
one roof since the day of their marriage, it is stated that she fulfilled all
her marital obligations and did each and every duty being a wife of
Late Sh. Dina Nath Pandey during his life time even after his death,
she is residing as a widow of Dina Nath Pandey. It is stated that she
has no jewelery as alleged but she has her stridhan given by her
mother in her marriage. It is stated that the letter dated 27.03.2002
bears her name as widow of Sh. Dina Nath Pandey and the said letter
is exhibited as Ex. RW4/3. It is stated that the department also issued
one dependent Identity card which is Ex. RW4/4. It is stated that
petitioner is not residing at the address mentioned in the petition since
he was not having good terms with Late Sh. Dina Nath Pandey and the
petitioner was living separately because of differences between him
Petition no. SC/32757/16
and the deceased Sh. Dina Nath Pandey and the petitioner has
concealed his address. She further exhibited photograph of her
marriage as Ex. DW4/2, however, no negative or digital copy of
photographs filed. In her cross examination on behalf of petitioner , it
is accepted by her that her marriage with the deceased was her second
marriage. It is accepted by her that her daughter Lavika is from her
previous marriage and her (Lavika) biological father is Surender
Kumar. It is accepted by her that she was aware that deceased was
having one son and two daughters i.e. petitioner and respondent no. 2
and 3 at the time of her marriage with the deceased. In her cross
examination on behalf of respondents no. 2 and 3, it is stated by her
that her marriage was attended by her mother and brother. She denied
that she never married with the deceased. It is stated by her that she
had never seen any ”Will” of Dina Nath Pandey. It is voluntarily
stated by her that there is no such ‘Will’. It is stated by her that any
such ‘Will’ is forged and fabricated. It is stated by her that she has
received an amount of Rs.6 lac from the office of the deceased. She
denied the suggestion that she got included her name as wife of the
Petition no. SC/32757/16
deceased in various records by using unfair means and by influencing
the deceased during his life time. It is accepted by her that on
09.04.2000 she sold a property No. E133, ground floor, West Patel
Nagar, Delhi wherein she herself mentioned her as wife of Sh.
Surender Kumar Malik. It is voluntarily stated by her that she has
taken permission from the deceased regarding that transaction. It is
stated by her that Surender Kumar Malik died on 30.09.1998.
13 RW4/W3 Sh. Tatsat Shukla, Senior NonCommission
Officer, Legal Cell, Directorate of Air Vetran, Subrato Park, New
Delhi filed the certified copy of certificate of service and certified
copy of statement of particulars : Officers which are exhibited as Ex.
RW4/W3/A to Ex. RW4/W3/C. It is stated that Smt. Sonia Pandey
is mentioned as wife of deceased Sh. D.N. Pandey in their official
records. In his cross examination, it is stated by him that the
documents filed by him were sent to him by pension department. It is
stated that he has never seen the original of the exhibits. It is stated
that original are available with the pension department and certified
copies have been filed by him on record.
Petition no. SC/32757/16
14 No other witness was examined and evidence was closed.
15 The court has heard submissions advanced by ld. counsel
for the petitioner as well as the respondents and has perused the
record.
16 There the two contentious issues in the present petition.
First, whether respondent no. 4 Smt. Sonia Pandey is the legally
wedded second wife of the deceased or not, further, whether
respondent no. 5 Lavika Pandey is the adopted daughter of the
deceased or not. Second and main point is that whether the ‘Will’ of
the deceased dated 18.02.2002, registered on 23.04.2002 is a valid
‘Will’ or not and whether the said ‘Will’ is duly proved on record or
not. Both the issues are discussed herein under one by one.
Status of respondents no. 4 and 5 qua deceased.
17 It is contended by respondents no. 2 and 3 that respondents
no. 4 and 5 are not related to deceased in any manner. However,
following facts show that respondent no. 4 Sonia Pandey is the legally
wedded second wife of the deceased :
(i) Ms. Sonia Pandey categorically stated that her first
Petition no. SC/32757/16
husband Sh. Surender Kumar Malik died on
30.09.1998, admittedly first wife of the deceased
namely Jamwanti Pandey expired on 22.09.1999. It is
contended that deceased and respondent no. 4 married
on 30.01.2000 at Arya Samaj Vedic Temple. Thus, on
that day the deceased as well as respondents no. 4 both
were not having a living spouse.
(ii) Respondent no. 4 has exhibited on record her
marriage certificate issued by Arya Samaj Vedic
Temple as Ex. RW4/1. Further official from
Directorate of Air Vetern also filed on record certified
copies of certain documents showing that in the
official record Smt. Sonia Pandey has been shown as
the wife of the deceased.
(iii) Though, there are certain photographs of the
marriage on record , however, the same can not be
relied upon being not duly proved for the want of
negatives or certificate under section 65 B of Indian
Petition no. SC/32757/16
Evidence Act.
(iv) Admittedly, the deceased was residing with the
respondent no. 4 during his last days. Further, even
now respondent no. 4 is in possession of the house of
the deceased bearing no. 92, Aakash Kunj, Plot No.
14, Sector9, Rohini, Delhi.
From the above stated facts, the respondent no. 4 Sonia Pandey has
proved beyond doubt that she is the legally wedded second wife of the
deceased.
18 Respondent no. 5 Smt. Lavika Pandey is the biological
daughter of Late Surender Kumar Malik i.e. the first husband of Sonia
Pandey. As per Hindu Adoption and Maintenance Act, a person
having living daughter can not adopt another daughter (Section 11).
In the present matter, deceased was having two living daughter i.e.
respondent No. 2 namely Kiran Jhingran and respondent no. 3 namely
Smt. Manju Sharma. Thus, the adoption if any, of respondent no. 5
Lavika Pandey by the deceased is not as per law. It is also to be noted
that as per section 5 of Hindu Adoption and Maintenance Act, any
Petition no. SC/32757/16
adoption made in contravention of provision of this act shall be void.
Hence, respondent no. 5 Lavika Pandey can not be considered as
adopted daughter of the deceased.
‘Will’
19 Ld. counsel for the respondents no. 2 and 3 has
emphatically contended that deceased had executed a ”Will” dated
18.02.2002 whereby he bequeathed his bank balance, FDRs, securities
and Insurance claim etc. equally among his daughters respondents no.
2 and 3. The ”Will” was registered after death of the deceased. It is
argued that the registered ”Will” has been duly proved on record as per
law, hence, the petition is liable to be dismissed as petitioner who is
son of the deceased is not entitled to debts and securities for which the
present petition has been filed.
20 Per contra, it is argued on behalf of petitioner as well as
respondents no. 4 and 5 that the ”Will” is forged. The specific
objections raised against the ”Will” are as follows :
(i)The original ”Will” has never been produced before the
court. The documents exhibited on 18.05.2018 as ”Will” is only
Petition no. SC/32757/16
coloured photocopy of the same. Further that document was brought
on record after recording the examination in chief of the petitioner
without taking leave of the court, thus, the document can not be read
in evidence.
(ii) The document was never executed and signed by the
deceased. It is forged by respondents no. 2 and 3.
(iii) The ”Will” was not relied upon by respondents no. 2
and 3 in a civil suit compromised between respondents no. 2 3 and
petitioner qua property of Gurgaon. It is argued that non disclosure of
the ‘Will’ in the said proceedings shows that there was no such ‘Will’
(iv) Ld. Counsel for respondents no. 4 and 5 has relied
upon various judgments i.e. Shashi Kumar Benerjee Vs. Subhodh
Kumar Banerjee AIR 1964 SC 529, Vidhyasagar Soni Vs. State,
AIR 2016 Delhi 354 Krishna Das Gupta Vs. The State Ors.
DHC DoD 16.02.2012, all the said documents were regarding
suspicious circumstances surrounding the execution of the ‘Will’. The
following further suspicious circumstances have been pointed out
Petition no. SC/32757/16
surrounding the execution of the ‘Will’ :
(a) ”Will” was allegedly executed just five day prior to
death of the deceased. The ”Will” was registered after the death of the
deceased.
(b) No petition for probate was filed despite the fact that
there was a dispute qua the estate of the deceased.
(c) It is improbable that deceased would go from Rohini to
Janakpuri for execution of the ”Will”.
(d)The ”Will” is not bearing the signatures of alleged
attesting witness Sh. Phool Singh.
(e) The two attesting witness are stranger to the deceased as
they does not know the family members of the deceased. None of the
family members accompanied the deceased at the time of execution of
the ”Will”.
(f) The contents of the ”Will” are unusual, improbable and
contradictory as it is claimed in the ”Will” that relations of the
deceased with Sonia Pandy were not good while in fact their relations
were good. The ”Will” become highly improbable as no provision was
Petition no. SC/32757/16
made in the said qua Sonia Pandey. It is stated that just a day prior to
his death that is on 22.01.2002, deceased visited his office and got
prepared insurance medical card mentioning name of Sonia Pandey as
his wife, which shows that their relations were good.
(g) The ”Will” does not disclose whether it is first or last
”Will”. The executor of ”Will” Ram Bilas Pandey never came forward
to get the ”Will” probated. Mr. Durgesh Pandey to whom property in
the village was given by the deceased has not came forward to claim
the same.
(h) The attesting witness are not aware about the contents
of the ”Will”. No official witness was called to prove the registration
of the ”Will”.
(i) No handwriting expert examined to prove that the
signatures on the ”Will” are of deceased.
21 In the present petition, the material issue is as to whether
the ”Will” in question dated 18.02.2002 is genuine or not. Following
are the relevant provisions of law required to be considered in order to
prove a ‘Will’:
Petition no. SC/32757/16
a. As per section 63 of the Indian Succession Act, it has to
be proved that the deceased had executed the ‘Will’ and the ‘Will’ is
required to be attested by two or more witnesses, each of whom inter
alia has seen the Testator signing or affixing his thumb mark to the
‘Will’ and that each of the witnesses signed on the ‘Will’ in the
presence of the Testator, or has received from the Testator a personal
acknowledgment of his signatures and each of the witness shall sign
the ‘Will’ in presence of the Testator, however, it is not necessary that
more than one witness be present at the same time.
b. Section 68 of the Indian Evidence Act further provides
that if a document is required by law to be attested, it should not be
used in evidence unless one attesting witness has been examined to
prove the ‘Will’.
c. It is clear from the definition that the attesting witness
must state that each of the two witnesses had seen the executor sign or
affix his mark to the instrument or had seen some other person sign the
instrument in the presence and by the direction of the executant. The
witness should further state that each of the attesting witnesses signed
Petition no. SC/32757/16
the instrument in the presence of the executant. These are the
ingredients of attestation and they have to be proved by the witnesses.
The word ‘execution’ in Section 63 includes attestation as required by
law.
d. While making attestation by the attesting witness, there
must be an animus attestandi, on the part of the attesting witness,
meaning thereby, he must intend to attest and extrinsic evidence on
this point is receivable.
e. In cases wherein the execution of the ‘Will’ itself is
surrounded by suspicious circumstances, such as, where the signature
is doubtful, the testator is of feeble mind or is overawed by powerful
minds interested in getting his property, or where in the light of the
relevant circumstances the dispositions appear to be unnatural,
improbable and unfair, or where there are other reasons for doubting
that the dispositions of the ‘Will’ are not the result of the testator’s free
‘Will’ and mind. In all such cases where there may be legitimate
suspicious circumstances those must be reviewed and satisfactorily
explained before the ‘Will’ is accepted. Again in cases where the
Petition no. SC/32757/16
propounder has himself taken a prominent part in the execution of the
‘Will’ which confers on him substantial benefit that is itself one of the
suspicious circumstances which he must remove by clear and
satisfactory evidence. After all, ultimately it is the conscience of the
Court that has to be satisfied, as such the nature and quality of proof
must be commensurate with the need to satisfy that conscience and
remove any suspicion which a reasonable man may, in the relevant
circumstances of the case, entertain.
22 In the case in hand both the attesting witness namely Sh.
Lal Chand and Sh. Phool Singh have been examined to prove the
execution of the ”Will” dated 18.02.2002, it is stated by them that
deceased/Testator had signed the ”Will” in their presence and they also
signed the ”Will” as witness. They also identified their signatures on
the ”Will” at point A and B. Both of them have stated that they signed
the ”Will” as witness, their signatures also appearing on the ”Will” at
the place earmarked for witnesses, thus the animus attestandi on the
part of these witnesses is apparent. The following fact shows that the
”Will” dated 18.02.2002 is a reliable piece of evidence:
Petition no. SC/32757/16
(i) The ”Will” has been duly proved on record as both the
attesting witnesses namely Sh. Lal Chand (RW2/W2) and Sh. Phool
Singh (RW2/W3) have appeared before the Court and have
categorically stated about the execution and attestation of the ”Will”.
They have categorically stated that the Testator had signed on the
”Will” in question in their presence. It is also stated by them that they
also signed on the ‘Will’ in the presence of Testator as attesting
witnesses.
(ii) The present case is materially different from the case
relied upon by counsel for respondents no. 4 and 5 titled as Krishan
Das Gupta Vs. The State DoD 16.02.2012, Hon’ble Delhi High
Court, there were two ‘Wills’ in that case, the one was bearing
signatures of the deceased the second one was not bearing signature of
the deceased while the deceased used to affix his signatures on all the
documents executed by him. Further even the thumb impression of
the deceased on that ‘Will’ was in reverse directions which made it
probable the thumb impression was procured after the death of the
deceased. While in the present matter, the ‘Will’ in question is bearing
Petition no. SC/32757/16
the signatures of the deceased on both the pages. Though a bald plea
has been taken in the present matter as well that the ‘Will’ is forged
and it does not bear signatures of the deceased. It is to be noted that
ample opportunity was given to the respondents no. 4 and 5 as well as
to the petitioner to lead evidence however they never brought on
record any document whatsoever signed by the deceased to compare
the signature of the deceased on the ‘Will’. No attempt was made to
bring any admitted signatures of the deceased on record or to get any
such admitted documents of the deceased compared with the signature
of the deceased on the ‘Will’ through handwriting experts. In these
circumstances, the preponderance of probability is more in favour of
the fact that the ‘Will’ is bearing genuine signatures of the deceased.
(iii) Though the undersigned is not a handwriting expert,
further, it is not safe to rely on photocopies of the documents for
comparison of the signatures, however, the signatures of the deceased
on the ‘Will’ are same to the signatures of the deceased appearing on
documents Ex. RW4/W3/C i.e. the documents produced by the
Government department. This similarity of the signatures also lend
Petition no. SC/32757/16
support to the contention that the signatures of the deceased on the
‘Will’ are genuine and that is why the petitioner or respondents no. 4
and 5 never bothered to bring on record any admitted signatures of the
deceased or to send any such admitted signatures for comparison with
alleged signatures on the ‘Will’ to the handwriting expert.
(iv) It is contended on behalf of respondents no. 4 and 5
that just a day prior to his death deceased got prepared medical
insurance card from his department showing Smt. Sonia Pandey as his
wife, this contention of respondents no. 4 and 5 establishes that
deceased was able to walk and to do liaison work just a day prior to
his death, in such circumstances, the contention that he was unable to
make a ‘Will’ just five days prior to his death can not be entertained.
(v) The contention that alleged original ‘Will’ exhibited in
the court on 18.05.2018 is not the original ‘Will’, but a coloured copy
of the same is not tenable as from looking at this document it is
apparent that it is bearing original passport size photograph of the
deceased, further the stamp of sub registrar is partly on the photograph
and partly on the first two paragraphs of the ‘Will’, thus, it is
Petition no. SC/32757/16
apparently clear that this documents is not a coloured photocopy, but it
is the original ‘Will’ which was registered on 23.04.2002.
(vi) The contention that the ‘Will’ was not produced earlier,
hence, can not be read in evidence is also not tenable as respondents
no. 2 and 3 in their written statement itself had mentioned about the
‘Will’, further the questions about the execution existence of the
‘Will’ were asked to the petitioner during his cross examination, copy
of the ‘Will’ was marked in the testimony of RW Manju Sharma on
19.11.2012. Thus, the objections of respondents no. 2 and 3 were
always based on the ‘Will’ dated 18.02.2002. The quest of the Trial
Court is to bring the best evidence on record in order to do substantive
justice and not to hamper the same on technical grounds. In these
circumstances, it is hereby held that the original ‘Will’ filed on record
on 18.5.2018 is duly exhibited on record and can be read in evidence
as the same is essential for deciding the present matter. Further, ample
opportunity has been given to petitioner as well as respondents no. 4
and 5 to cross examine the attesting witness who exhibited and proved
the ‘Will’ on record.
Petition no. SC/32757/16
(vii) Since respondents no. 2 and 3 have duly proved the
‘Will’ on record by calling the attesting witnesses, further, they also
filed original registered ‘Will’ on record, thereafter, respondents no. 2
and 3 were not supposed to call someone from office of Sub Registrar
to prove the registration of the ‘Will’. On the other hand, it was on
petitioner and respondents no.4 and 5 to call someone from office of
SubRegistrar if they wish to disprove the registration of the ‘Will’.
(viii)An attesting witness is not required to know the
contents of the ‘Will’, he is only supposed to see the testator signing
the ‘Will’ and is also expected to sign the ‘Will’ in presence of the
Testator. Thus, not knowing the contents of the ‘Will’ by the attesting
witnesses is not fatal to the ‘Will’.
(ix) It is to be noted that no subsequent ‘Will’ of the
testator brought before the undersigned to claim that the ‘Will’ in
question was not the last ‘Will’ of the testator qua terms and properties
covered therein. Non mentioning in the ‘Will’ that it is the first or last
‘Will’ is inconsequential.
(x) A ‘Will’ is not compulsorily required to be registered.
Petition no. SC/32757/16
However, registration of a ‘Will’ makes it more reliable and credible.
Still non registration of a ‘Will’/registration of the ‘Will’ after the death
of Testator does not affect its genuineness, if all the alleged suspicious
circumstance have been explained.
(xi) Non filing of the petition for probate of the ‘Will’ either
by the executor or by the beneficiaries ‘Will’ not disentitle the
respondents from setting up the ‘Will’ in the present matter, as a ‘Will’
can be set up and proved as per law in a collateral proceedings.
(xii) The contention that the ‘Will’ is not bearing the
signatures of alleged attesting witness Phool Singh is not tenable as
Sh,. Phool Singh deposed in the court as RW2/W3, and he has
categorically identified his signature on the ‘Will’.
(xiii) having a close relation with the Testator is not a
condition precedent to become an attesting witness in a ‘Will’. In the
present matter, RW2/W2 Sh. Lal Chand has categorically stated that
the deceased was known to him being friend of his father, he also used
to got documents attested from the deceased and has also visited his
house at Palam Airforce Staff Quarters as well as at Dhaula Kuan staff
Petition no. SC/32757/16
quarters. It is also to be noted that Sh. Lal Chand is a Government
servant working as Lab Assistant in Sarvodaya Kanya Vidyalaya,
Samalkha, thus it is not the case where the attesting witness is a
complete stranger or a professional who falsely deposes as witness. It
is to be noted that another attesting witness Phool Sigh though not
connected with the deceased, however, is a well known of Sh. Lal
Singh the other attesting witness. It is quite probable that Sh. Lal
Singh brought his known Sh. Phool Singh to be a witness with him of
the attestation of the ‘Will’.
(xiv) The main effect of the ‘Will’ dated 18.02.2002 is that
by virtue of this ‘Will’ deceased had distributed his immovable
properties in Delhi and Gurgaon amongst his three children i.e.
petitioner and respondents no. 2 and 3, further he distributed his bank
balance, FDRs, securities and insurance claim etc. equally amongst his
two daughters i.e. respondents no. 2 and 3. Deceased also bequeathed
agricultural land in his native village in favour of his nephew Durgesh
Pandey. Thus, no provision in the ‘Will’ was made for the respondents
no.4, who is legally wedded second wife of the deceased due to this
Petition no. SC/32757/16
reason, it is contented by ld. Counsel for respondents no. 4 and 5 that
the ‘Will’ is highly improbable and unusual. This contention is not
tenable as the deceased has already explained in the ‘Will’ that
respondent no. 4 Sonia Pandey has been made nominee at various
places by the deceased, it is further mentioned that respondent no. 4
has inherited properties from her previous husband as well, it is stated
that she does not require any sort of help as she is already well settled
and is possessed of sufficient assets and properties in her hand. It is a
fact that Smt. Sonia Pandey had sold a property inherited by her from
her previous husband on 09.06.2000 i.e. just two years prior to
execution of the ‘Will’. It is also a fact that deceased did not make any
bequeath qua his terminal benefits in the ‘Will’ as he has nominated
respondent no. 4 in the same, thus, it is apparent that the ‘Will’ is a
probable one wherein the deceased made provisions for his close
relatives, further there is clear reasons for which respondent no. 4 was
left out. The deposition of the property in the ‘Will’ appears to be
reasonable. In theses circumstance, the exclusion of the respondent
no. 4 from the ‘Will’ does not appear to be suspicious. Thus, the
Petition no. SC/32757/16
intention of the Testator is apparent and unequivocal in the ‘Will’.
(xv) The most important point to challenge the ‘Will’ is that
a civil suit was filed between petitioner (son of the deceased) and
respondents no. 2 and 3 i.e. daughters of the deceased qua property
bearing no. T02, New Palam Vihar, Gurgaon, Haryana which is a
subject matter of the ‘Will’, that suit was settled between them and a
compromise decree was passed, however, neither respondents no. 2
and 3 nor the petitioner mentioned about ‘Will’ in that compromise. It
is argued that if the ‘Will’ in question was/is genuine than respondents
no. 2 and 3 should have brought the same in the knowledge of that
court. This argument appears to be very tempting, however, the same
is not of any help to respondents no. 4 and 5 or the petitioner, it is
already been observed by this court that the ‘Will’ in question is the
duly executed ‘Will’ of the deceased, further more, the ‘Will’ was
registered just a few months after the death of the deceased. Thus, the
‘Will’ was already in existence, despite that respondents no. 2 and 3
chooses not to rely on the same in the previous case before Haryana
court. In these circumstances, non disclosure of the ‘Will’ in the
Petition no. SC/32757/16
previous case between petitioner and respondents no. 2 and 3 is not
fatal for the present matter, however, the parties prejudiced by non
disclosure of the ‘Will’ in that suit are at liberty to seek remedies
against that order as per law.
(xvi) It is to be noted that the ‘Will’ in question has been set
up by respondents no. 2 and 3, however, by way of the ‘Will’ estate of
the deceased has been distributed among petitioner as well as one
Durgesh Pandey (Nephew of the deceased) apart from respondents
no. 2 and 3. Had the ‘Will’ was executed exclusively in the favour of
respondents no. 2 and 3, who were instrumental in registration of the
‘Will’ only then a suspicion could have arose against the ‘Will’.
23 A ‘Will’ is one of the most solemn document known to law.
By it, a dead man intends to the living the carrying out of wishes and
as it is impossible that he can be called either to deny his signature or
to explain the circumstance in which it was executed. It is essential
that trustworthy and an effective evidence should be given in
compliance with the necessary formalities of law. The law does not
emphasis that the witness must use the language of S.63 to prove the
Petition no. SC/32757/16
requisite matters thereof. In a case where attesting witnesses are
produced and they give clear and cogent testimony regarding
execution, one should require very strong ground to repel the effect of
such testimony. It ‘Will’ not do to talk airily about suspicious
circumstance.
24 In view of the above stated discussion, the conscience of
this court has been satisfied that the ‘Will’ dated 18.02.2002 was duly
executed by the testator.
25 The present petition was filed by the petitioner Sh.
Kapilesh Pandey qua balance of bank accounts maintained by the
deceased as well as qua fixed deposits of the deceased with banks. As
per the duly proved ‘Will’ of the deceased, petitioner Kapilesh Pandey
is not entitled for the balance kept in bank or the fixed deposits made
by the deceased, hence the petition is hereby dismissed.
26 It is to be noted that the respondents no. 2 and 3 has not
filed any succession petition and has not sought any succession order
in their favour qua debts and securities of the deceased, it is hereby
held that once the succession certificate petition of the petitioner is
Petition no. SC/32757/16
dismissed as he is not entitled to the debts and securities of deceased,
the respondents 2 and 3 ‘Will’ have to file an independent petition for
succession certificate for claiming the debts and securities left behind
by the deceased, reliance being placed upon a case decided by Hon’ble
Delhi High Court cited as 2014 SCC OnLine Del 620.
Digitally signed
File be consigned to Record Room. GAJENDER by GAJENDER
SINGH NAGAR
SINGH Date:
NAGAR 2018.09.12
20:39:40 +0530
Announced in the open court (GAJENDER SINGH NAGAR )
on 12.09.2018 Administrative Civil Judgecum
Additional Rent Controller (Central)
Delhi.
THIS JUDGMENT CONTAINS 44 PAGES
Petition no. SC/32757/16
SC/32757/16
12.09.2018
Present : None.
Vide separate judgment of even date, the petition is hereby
dismissed.
File be consigned to Record Room.
(Gajender Singh Nagar)
ACJ/ARC (Central)
Delhi/12.09.2018
Petition no. SC/32757/16
Petition no. SC/32757/16
