Shri Prem Sagar vs State and Others

J.M. Malik, J.

CM No. 3716/2007 (delay)

This is an application u/s 5 of the Limitation Act, 1963, for condoning the delay in filing the appeal.

For the reasons stated in the application, the application is allowed.

FAO 98/2007

The Trial Court vide its order dated 6th November, 2006 came to the conclusion that there were suspicious circumstances surrounding the

execution of the Will executed by late Shri Diwan Chand. According to the Will executed on 23.4.1983, deceased Diwan Chand had given

absolute right in property bearing No. 8/106 Geeta Colony, Delhi to Prem Sagar son of his son Krishan Lal.

Seema and Veena Rani @ Meenu filed objections to the probate petition. The same are listed as follows. It is alleged that as a matter of fact,

the deceased had left behind three daughters, namely, Smt. Krishnawati, Smt. Satya Devi and late Smt. Bimla Devi and another son Raghunath

Rai. Seema, Veena Rani @ Meenu and Rajesh are the legal representatives of late Smt. Bimla Devi. Their names conspicuously found no mention

in the Will. It is alleged that the Will is forged and fictitious one. Deceased Diwan Chand used to sign in Urdu but the Will has been thumb marked

by him. The Will is attested by the father of the propounder. The signatures of the second witness, namely, Late Iqbal Bahadur Mathur, Advocate,

are different on both sides of the Will. Deceased Diwan Chand during his life time gave full rights to his wife, Smt. Ram Pyari, to deal with the

aforesaid property. After the death of Diwan Chand, Smt Ram Pyari executed a registered Will on 26.9.1988 in favor of Smt. Bimla Devi.

Moreover, Shri Raghunath Rai, Smt. Krishnawati, Smt. Satya Devi, Shri Rajesh and Smt. Seema executed a relinquishment deed in favor of

Smt.Veena Rani @ Meenu and Therefore, she has become the absolute owner of the property in dispute. Smt. Krishnawati and Smt. Satya Devi

also filed identical objections.

The learned trial court placed reliance on an apex court authority reported in Chiranjilal Shrilal Goenka (Deceased) through Lrs. Vs. Jasjit Singh

and Others, , wherein, it was held that probate court does not decide any question of title or of the existence of the property itself. He, Therefore,

refrained from deciding the question of title which was racked up due to objections raised by her objectors. The trial court has rightly given the

short shrift to this issue.

The trial court in its impugned judgment came to the conclusion that the Will in question bears the thumb impression of the deceased despite the

fact that the testator used to sign in Urdu. The trial court concluded that this was a significant suspicious circumstance. Secondly, Krishan Lal,

father of the petitioner, is an attesting witness. Thirdly, Krishan Lal also put his thumb impression on the Will and lastly, there was a delay of 10

years in filing the application for probate.

I have heard counsel for the parties. Learned Counsel for the appellant has drawn my attention towards few authorities in support of his case.

He pointed out that in an authority reported in Nihal Kaur (deceased) v. Jugraj Singh Punjab and Haryana High Court 1997 (3) RCR 584, it was

held,

It is equally true, as has been contended by Mr. Bindra that there are documents on the record to indicate that Kartar Kaur was in a position to

put her signatures on the document, but from this circumstance by itself, it cannot be inferred that because only a thumb impression had been put,

the will could not be relied upon. It has been observed by the lower Appellate Court (and I see no reason to differ) that it is not uncommon that

people in the villages often put their thumb impressions in preference to their signatures as the science of Finger-print is an exact one, whereas the

same cannot be said with regard to the identification of handwriting. It has come in the evidence of Malkiat Singh-PW-3 and Malkiat Singh-PW4

that the testator had thumb marked the document in their presence and the thumb impression was further proved by Diwan K.S. Puri-PW9, Finger

Print Expert, from Patiala, who is very well regarded in judicial circles.

Is this authority completely analogous or corresponding to the instant case? This authority is clearly distinguishable from the facts of the present

case. There is enough difference between people residing in a village situated at a far flung area of Punjab and the people residing in Geeta Colony,

Delhi. The comparison between these two people is unpalatable. Secondly, two independent witnesses in the above-said case had identified the

thumb impression of deceased Kartar Kaur. Thirdly, the thumb impression of the deceased was further proved by, PW 9, Diwan K.S.Puri, the

finger print expert. In the instant case, although the Will was got registered, yet, no effort was made to examine the Registrar to prove the thumb

impression of deceased Diwan Chand. The examination of Registrar would have gone a long way in explaining as to why the Registrar did not ask

the testator to affix his signatures. In this case, no effort was made to get the thumb impression of the deceased compared with his admitted thumb

impression by a finger print expert. Without sound reasoning no argument will cohere.

The next submission made by learned Counsel for the appellant was that since this Will was registered, Therefore, it should have been presumed

to be true. The learned Counsel for the appellant has cited one authority reported in Kartar Kaur v. Bhagwan Kaur Punjab and Haryana High

Court 1993 (1) RRR 246, wherein it was held that the certificate of Registering authority u/s 60 of the Registration Act, is a relevant piece of

evidence for proving execution of the Will because the registration of document is a solemn act of the Registrar. Again the duty of Registrar is to

see that the proper persons are present and are competent to act and are properly identified to his satisfaction. It was further held, that all things

done before him and by him will be presumed to be done duly in order. In this case, the Punjab and Haryana High Court has placed reliance on

AIR 1929 Lahore 711.

This argument, too, does not ensure in favor of the appellant. The trial judge has answered this question by relying upon an authority of the Apex

Court reported in Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, , wherein it was illuminatingly highlighted that

mere fact that a Will is registered will not by itself be sufficient to dispel all suspicion.

The third submission made by learned Counsel for the appellant was that it is a settled law that only such persons who are in the confidence of

the testator can be relied upon for the purpose of attestation of the Will. He pointed out that the validity of the Will cannot be suspected only

because attesting witnesses were relations of the testator.

I find force in this argument in a measure. Independent relatives are undoubtedly the best attesting witnesses. Yet a demarcation has to be

made between independent relatives and interested relatives. The witnesses like the father of the propounder or the husband or wife of the

propounder are certainly the interested witnesses. Independent witnesses means those who have the same relationship with propounder as with the

objector like paternal uncle or maternal uncle or one of the parents or one of the siblings who ought to have been one of the objectors. Each case

has its own facts. No such rules can be cast in rigid mould nor they can be put in a legal straight jacket. The fact that the father of the appellant

agreed to become the attesting witness has fuelled the fire of speculation. A haze of suspicion covers the Will.

It is noteworthy that Krishan Lal, PW-1, himself admitted that deceased Diwan Chand used to sign in Urdu but the Will Ex.PW1/1 did not

bear his signatures. PW 3, Shri Tej Ram, UDC from House Tax Department, Geeta Colony produced the record of assessment of house tax of

property in question. In his cross-examination this witness has stated that the MCD received a number of letters written by Diwan Chand which

bore his signatures in Urdu. He has also stated that there is no document received on behalf of Diwan Chand which might have been thumb

marked by him. This is a circumstance of infinite importance. No Explanation for the same is forthcoming. A person is required to be extra vigilant

when he is executing the Will and has legal advice of an advocate. This circumstance adds another spoke in the wheel of suspicion. Secondly, in

the case of Kartar Singh v. Bhagwan Kaur (supra) the Sub Registrar was examined in the court in order to prove the Will.

Moreover, Krishan Lal, PW 1, stated that he has signed the Will at point B. However, the perusal of the Will shows that it was not signed by

Krishan Lal at point B. In fact, there is one thumb impression on the margin of the Will. According to counsel for the appellant this thumb

impression belongs to Krishan Lal, however, the name of Krishan Lal is not mentioned. The record reveals that PW1, Krishan Lal, is accustomed

to sign. All the petitions, applications, replies, affidavits, and the pages of his statement dated 8.5.2002 bear his signatures. There is nothing on

record to show that he has thumb marked any of the above-said documents. He has not explained as to how did he put his thumb impression on

the Will. The suspicion increases on every step.

It is also noteworthy that Krishan Lal has filed the present petition on behalf of his son, Prem Sagar, who is a minor, meaning thereby that the

petitioner and the attesting witness is almost the same person.

Last but not the least, although, the law of limitation has no application to the filing of probate petition, yet, the delay in filing the probate

petition creates a suspicion about the petitioner''s case. There is no Explanation from the petitioner as to why the filing of the petition was delayed

for such a long time.

It is thus clear that the Will in question is grappling with multitudinous problems. The Trial Court has meticulously checked the record with

precision and clarity. I am unable to take a view different from the one taken by the court below. The appeal being meritless is hereby dismissed in

liming.