Jatinder Singh Bhatia Petitioner v. State & Ors. S

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%^rdDate of decision: 3 July, 2018

+ TEST.CAS. 37/1995, CCP(O) Nos.289/2004, 97/2007 & 58/2010, Crl. MA Nos.2636/2012 & 4278/2013 (both u/S 340 Cr.P.C.), IA No.7399/2001 (u/O XL R-1 CPC), IA Nos.7233/2002, 8375/2007 & 8376/2007 (all u/S 151 CPC) IA No.7613/2009 (u/O XXXIX R- 2A), IA No.8607/2009 (u/S 151 CPC), IA No.12441/2009 (u/O XVI R-1 CPC), IA No.3083/2011 (u/S 151 CPC), IA No.3595/2011 (u/S 151 CPC), IA No.11725/2011 (u/S 5 of the Limitation Act) & IA No.24394/2015 (u/O XXXIX R-2A CPC). JATINDER SINGH BHATIA ..... Petitioner

Through: Mr. Sandeep P. Agarwal & Mr. M.K. Singh, Advs.

Versus

STATE & ORS. ..... Respondents

Through: Mr. Rajat Aneja & Ms. Rashmi Verma, Advs. for R-5.

AND

TEST.CAS. 42/1995, CCP Nos.171/1996 & 40/2004, IA Nos.4898/2004 (u/Chapter II R-4 CPC), IA No.14158/2011 (u/O XXIII R-1 CPC), IA No.14628/2011 (u/O XXIII R-10 CPC) & IA No.19282/2011 (u/S 151 CPC).

MANJIT KAUR ..... Petitioner

Through: None. Versus

STATE & ORS. ..... Respondents

Through: Mr. Rajat Aneja & Ms. Rashmi Verma, Advs. for R-3.

Mr. Sandeep P. Agarwal & Mr. M.K. Singh, Advs. for D-6.

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AND

CCP (O) No.62/2010 in CS (OS) 1441/1990. RAJENDERPAL SINGH BHATIA ..... Plaintiff/Relator

Through: Mr. Rajat Aneja & Ms. Rashmi Verma, Advs.

Versus

JOGINDER SINGH .... Defendant/Respondent

Through: Mr. Sandeep P. Agarwal & Mr. M.K. Singh, Advs. for D-5.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. Test Cas. No.37/1995 seeks probate of the document dated 15^thMay, 1994 claimed to be the validly executed last Will of Joginder Singh Bhatia (Joginder) who died at Delhi on 1^stDecember, 1994 leaving the petitioner Jatinder Singh Bhatia (Jatinder) and the respondents no.1,2,3&5 Gurbachan Singh Bhatia (Gurbachan), Surinder Singh Bhatia (Surinder), Satbinder Singh Bhatia (Satbinder), Rajenderpal Singh Bhatia (Rajender) as his sons and respondent no.4 Manjit Khanna (Manjit) as his daughter; the mother and wife of Joginder pre-deceased him.

2. Test Cas. No.42/1995 has been filed by Manjit seeking probate of the document dated 15^thNovember, 1994 as the validly executed last Will of Joginder.

3. CCP(O) No.62/2010 was filed by Rajender averring violation by Gurbachan and Jatinder of the orders dated 10^thDecember, 2008, 6^th February, 2009 and 20^thFebruary, 2009 in CS(OS) No.1441/1990 filed by Rajender against Joginder, Gurbachan, Surinder, Satbinder and Jatinder, for

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dissolution of partnership, rendition of accounts and partition of immovable properties.

4. CS(OS) No.1441/1990 was dismissed vide judgment dated 23^rd November, 2012 and RFA(OS) No.29/2013 preferred thereagainst by Rajender was dismissed on 17^thMay, 2013; during the hearing, it was informed that SLP preferred thereagainst to the Supreme Court had also been dismissed. Only the CCP(O) No.62/2010 survives and discussion whereon will be taken up after the discussion on testamentary cases.

5. The counsels were heard by me on 12^thApril, 2013 and 9^thMay, 2013. However the hearing remained inconclusive and thereafter the Roster changed. The counsels were again heard by me on 2^ndJanuary, 2017, 3^rd January, 2017, 13^thFebruary, 2017 and 14^thMarch, 2017, when judgment was reserved. During the said hearings, finding the record to be voluminous, certain aspects of the hearing were recorded and it is felt that summarizing the same at this stage only of this judgment will help.

6. On 12^thApril, 2013, it was informed that Manjit who had filed Test. Cas. No.42/1995 had since agreed before the Division Bench, in an appeal arising out of these proceedings, not to press Test Cas. No.42/1995 but to withdraw the same and an application filed by her in this respect was pending considering. The counsel for Rajender, on that date stated that compromise between Jatinder and other siblings except Rajender before the Division Bench was to the detriment of Rajender and Rajender has filed an application in Test Cas. No.42/1995 for substitution in place of Manjit as petitioner and which application was also pending consideration. The counsel for Jatinder rejoined by drawing attention to objections dated 17^th

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January, 1996 filed by Rajender in Test Cas. No.42/1995 not admitting the document dated 15^thNovember, 1994 to be the validly executed last Will of deceased Joginder and putting Manjit to strict proof thereof; it was argued, that Rajender having filed objection to Test Cas. No.42/1995, could not be substituted as petitioner in Test Cas. No.42/1995.

7. The counsel for Rajender, on 9^thMay, 2013 relied on Raj Rani Bhasin Vs. State 158 (2009) DLT 713 and Sushila Devi Vs. Bishwanath Ram MANU/BH/0348/1989 to contend that in a testamentary case also, there can be transposition of the respondent as petitioner.

8. On 2^ndJanuary, 2017, it was recorded:-

(i) that the estate of the deceased Joginder comprises of eight properties; the document dated 15^thNovember, 1994, probate whereof is sought in Test Cas. No.42/1995, comprises of ten properties;

(ii) while under the document dated 15^thMay, 1994, probate whereof is claimed in Test Cas. No.37/1995, all the eight properties have been bequeathed to Jatinder, under the document dated 15^thNovember, 1994, probate whereof is sought in Test.Cas. No.42/1995, the properties have been bequeathed to all the five sons and sole daughter;

(iii) that save of Rajender, the other three sons namely Gurbanchan, Satbinder, Surender and the sole daughter Manjit of the deceased have settled with Jatinder and Rajender now wants to support the document dated 15^thNovember, 1994;

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(iv) the counsel for Jatinder though had no objection to Rajender supporting the document dated 15^thNovember, 1994 but only on the basis of pleadings and evidence as existing and without Rajender instituting any other proceedings to prove the document dated 15^thNovember, 1994; the same is acceptable to the counsel for Rajender;

(v) the counsel for Jatinder and the counsel for Rajender agree that if the document dated 15^thNovember, 1994 is proved to be the validly executed last Will of the deceased, the need to adjudicate Test Cas. No.37/1995 will not arise as the document dated 15^thMay, 1994 even if proved to be validly executed last Will of the deceased shall stand superseded by the document dated 15^thNovember, 1994;

(vi) that in the consolidated issues framed on 15^thJuly, 1999 in the Test. Cases, an issue had also been framed with respect to soundness of mind of the deceased; while according to the counsel for Jatinder, the same was framed also on the pleas of Rajender, according to the counsel for Rajender, no plea of soundness of mind of the deceased was taken; both counsels drew attention to page 41 of Part-I File of Test Cas. No.37/1995;

(vii) on reading of the said page in the objections filed by Rajender in Test Cas. No.37/1995 it was found that Rajender therein had pleaded that the deceased was "not having sound

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disposing mind" on the date of execution of the document dated 15^thMay, 1994;

(viii) it was enquired from the counsel for Rajender, whether it was the plea of Rajender that though the deceased was of unsound mind on 15^thMay, 1994 but had regained soundness of mind at the time of execution of the document dated 15^thNovember, 1994 and the counsel for Rajender was asked to take a categorical stand whether he was persisting in the plea taken in the objections in Test Cas. No.37/1995, of the document dated 15^thMay, 1994 being not the validly executed last Will of the deceased for the reason of the deceased being of unsound mind on that date;

(ix) the counsel for Rajender, under instructions from Rajender, gave up the plea of the deceased not having sound disposing mind, clarifying that he will confine the argument to the document dated 15^thMay, 1994 being a result of undue influence and pressure of Jatinder on the deceased;

(x) the original of the document dated 15^thNovember, 1994 with exhibit mark was not found on record and the counsel for Rajender stated that he will trace the same;

(xi) Rajender does not dispute the signatures on the document dated 15^thMay, 1994 to be of the deceased Joginder and his challenge thereto is solely on the ground of execution thereof being not in accordance with Section 63 of the Indian Succession Act, 1925 and on the ground of the same having

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been executed under undue influence and pressure from Jatinder;

(xii) the counsel for Rajender admits that the PW-1 (in Test.Cas. 42/1995) Dalbir Singh has not proved any document to show that M.P. Ahluwalia, in the year 1994, was the Accountant of the deceased;

(xiii) the counsel for Rajender had pointed out two inconsistencies in the testimonies of the two purported attesting witnesses to the document dated 15^thMay, 1994; while one said that "they were in the house of the deceased for about one and a half hours, the other said that they were there for about 15 - 20 minutes only; while one said that both the attesting witnesses left the house of the deceased together the other said that they left at different times"; no other inconsistency had been shown; and,

(xiv) the counsel for Rajender stated that it was held in the judgment in CS(OS) No.1441/1990 that all the other sons except Jatinder had in the year 1979 separated from the deceased and only Jatinder remained joint with the deceased.

9. The arguments of the counsel for Rajender, on 3^rdJanuary, 2017, were:-

(i) That R.P. Singh, an attesting witness to the document dated 15^thMay, 1994, though claimed to know the deceased well but did not know the siblings of the deceased or the number of children of the deceased.

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(ii) Similarly Yoginder Singh Bhatia, the other attesting witness to the document dated 15^thMay, 1994 also did not know how many sons and daughters the deceased had.

(iii) That both the aforesaid attesting witnesses knew Jatinder Singh Bhatia through his wife"s brother Manjeet Singh.

(iv) That the two attesting witnesses and Jatinder Singh Bhatia knew each other.

(v) That the two attesting witnesses answered after pauses and after considerable time, as noted in the recording of their statements.

(vi) That Manjeet Singh, brother of wife of Jatinder, present in the Court during the course of cross-examination of R.P. Singh, went out of the Court and the same shows that he wanted to inform the other witness viz. Yoginder Singh Bhatia of the trend of cross-examination.

(vii) That Jatinder in his cross-examination though admitted family settlement but the document dated 15^thMay, 1994 is in negation thereof and the same is a suspicious circumstance.

(viii) That Jatinder in his cross-examination denied knowing R.P. Singh and Yoginder Singh Bhatia and even denied that his wife "Sweety (Satbinder Kaur)" did not know R.P. Singh and Yoginder Singh Bhatia and which is contrary to the deposition of R.P. Singh and Yoginder Singh Bhatia.

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10. The order dated 3^rdJanuary, 2017 also records (i) Rajender, after cross-examination of Yoginder Singh Bhatia, one of the witnesses of the document dated 15^thMay, 1994, filed an application for taking on record affidavit of the said Yoginder Singh Bhatia reneging from the evidence earlier given and turning hostile; the said application was dismissed on 22^nd August, 2008; (ii) Rajender also filed an application to file record of a Government Hospital at Bhopal showing R.P. Singh, another witness to the document dated 15^thMay, 1994, to be admitted therein as on 14^thMay, 1994; this application also was dismissed on 22^ndAugust, 2008; (iii) FAO(OS) No.435/2008 preferred by Rajender against the dismissal of the said two applications was dismissed as withdrawn on 29^thFebruary, 2012; and, (iv) though the counsel for Rajender contended that while withdrawing the said appeal, liberty was reserved to take advantage of the affidavit of Yoginder Singh Bhatia and hospital record at the time of final hearing but no such liberty was found to have been granted by the Division Bench.

11. As aforesaid, on 15^thJuly, 1999 the two Testamentary Cases were consolidated with evidence to be recorded in Test Cas. No.37/1995 and the following issues were framed in both the cases:-

"1. Whether the deceased had executed Will dated 15.5.1994?

2. Whether the deceased was in sound and disposing mind at the time of execution of this Will?

3. Whether the Will was executed by coercion, undue influence or undue pressure? OPR

4. Whether the deceased had executed Will dated 19.11.1994?

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5. Whether the deceased was in sound and disposing state of mind on 19.11.1994?

6. If Will dated 19.11.1994 is proved to be genuine what will be the effect on the earlier Will dated 15.5.1994?

7. Relief."

12. The counsel for Rajender was heard first, since I was of the opinion that if the document dated 15^thNovember, 1994 is proved, the need for going into the aspect of proof of 15^thMay, 1994 will not arise. Besides what is already recorded above in various orders, the counsel for Rajender argued (i) that vide document dated 15^thMay, 1994, the entire estate has been bequeathed to Jatinder; (ii) under the document dated 15^thNovember, 1994, the estate has been distributed equally to all the five sons and sole daughter; (iii) that not only Rajender, but the other sons of the deceased namely Gurbachan, Satbinder, Surinder and the daughter of the deceased namely Manjit also objected to Test Cas. No.37/1995 and subsequently on settling with Jatinder, had withdrawn their objections to Test Cas. No.37/1995; (iv) that Jatinder, in the said compromise with Gurbachan, Surinder, Satbinder and Manjit, has given to each of them what was given to them under the document dated 15^thNovember, 1994 and which itself proves that Jatinder also admits the document dated 15^thNovember, 1994 and only Rajender is being deprived of what was bequeathed by the deceased to him under the document dated 15^thNovember, 1994; (v) that the document dated 15^thNovember,1994 bears the signatures of one Harjeet Singh and one M.P. Singh Ahluwalia as witnesses thereto; M.P. Singh Ahluwalia died in the year 2001; evidence of Rajender commenced in the year 2003 - 2004 and thus Rajender could not examine M.P. Singh

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Ahluwalia; however on enquiry, it was stated that no person identifying the signatures of M.P. Singh Ahluwalia also was examined; and, (vi) that though Rajender examined Harjeet Singh, but he was declared hostile.

13. I may at this stage notice that the affidavit by way of examination-in- chief of Harjeet Singh aforesaid and to which attention was drawn, is at page 98 of Volume-II of Part-I File of Test Cas. No.42/1995; the said witness in his affidavit stated that he had seen the original Will dated 15 ^th November, 1994 at the time of filing his affidavit along with Probate Petition (in compliance of Section 281 of the Indian Succession Act, 1925) and that he was the attesting witness to the said Will and his signatures appear on the said Will at point „A"; that there was another attesting witness at the time of execution of the Will whose name was M.P. Singh; that both the attesting witnesses were present when Joginder signed the Will and he signed in the presence of both the witnesses and both the witnesses signed in his presence.

14. The statement of Harjeet Singh recorded before the Court is at page 109 of Volume-II, Part-I file of Test Cas. No.42/1995 and it is found that he merely tendered his affidavit aforesaid as Ex.PW4/1 and did not identify the signatures of the Testator or his own signatures or signatures of any other person on the document dated 15^thNovember, 1994. I had thus enquired from the counsel for Rajender, whether the said document can be said to have been proved by Harjeet Singh inasmuch as though Harjeet Singh in his affidavit by way of examination-in-chief stated that the document was signed by the deceased in the presence of himself and in the presence of another witness and that he and the other witness M.P. Singh

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Ahluwalia had also signed in the presence of the deceased, whether not the witness was required to, at the time of tendering of the affidavit by way of examination-in-chief into evidence, point out the signatures on the document sought to be proved and which was not done. No marks „A" & „B" as were deposed in the examination-in-chief were put on the document when the witness appeared in the Court.

15. The counsel for Rajender could not offer any explanation.

16. Be that as it may, the said Harjeet Singh, in his cross-examination by the counsel for Jatinder, was shown the original document dated 15^th November, 1994 and on which he identified his own signatures at point „A"

but admitted as correct that the Testator Joginder had not signed the said document in his presence; he further deposed that his affidavit by way of examination-in-chief was got prepared by Manjit and he had signed the same at her asking and did not know English language. In cross- examination by the counsel for Gurbachan, Rajender, Satbinder and Surinder, the said witness deposed that he had never seen the Testator Joginder and never visited the house of the Testator Joginder and did not know that Satbinder was the son of the Testator Joginder and did not know any person by the name of M.P. Singh Ahluwalia. Though Manjit, being petitioner in Test.Cas. No.42/1995 and at whose instance the said witness was examined, could have in the circumstances sought permission from the Court to cross-examine Harjeet Singh, but no such thing was done.

17. Thus, the document dated 15^thNovember, 1994 has not been proved by the purported attesting witness thereto, namely Harjeet Singh examined as PW4. It has already been admitted by the counsel for Rajender that no

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witness to identify the signatures of M.P. Singh Ahluwalia, the other purported attesting witness to the document dated 15^thNovember, 1994, was examined.

18. The counsel for Rajender also, in his written synopsis in the form of legal propositions and judgments in support thereof and in the form of relevant extracts of depositions relied upon, has however in proof of the document dated 15^thNovember, 1994 relied only on the testimony as R2W2 Manjit, recorded on 9^thMay, 2003 and 21^stJanuary, 2004, wherein she deposed that the document dated 15^thNovember, 1994 was given by the deceased Joginder to her and that she had shown the same to the other siblings. However the said testimony cannot prove the document dated 15^th November, 1994 as the validly executed last Will of the deceased inasmuch as Manjit is admittedly not an attesting witness thereto and admitted that the document was already signed and ready when given to her.

19. Section 63 titled "Execution of unprivileged Wills" of the Indian Succession Act prescribes, that every Testator shall execute his Will according to the rules prescribed thereunder. The said rules require that the Testator shall sign or shall affix his mark to the Will and the signature or mark of the Testator shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. The rules further prescribe the Will to be attested by two or more attesting witnesses, each of whom has seen the Testator sign or affix his mark to the Will and each of the witnesses shall sign the Will in the presence of the Testator. Section 68 titled "Proof of execution of document required by law to be attested" of the Indian Evidence Act, 1872 prescribes that if a document is required by

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law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purposes of proving its execution, if there be an attesting witness alive, and capable of giving evidence. Section 69 titled "Proof where no attesting witness found" prescribes that if no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.

20. As aforesaid, there are two purported attesting witnesses to the document dated 15^thNovember, 1994. It is the argument of the counsel for Rajender that one of the attesting witnesses namely M.P. Singh Ahluwalia died in 2001, prior to the commencement of evidence of Rajender in 2003- 2004. It cannot however been lost sight of that the proceedings in the testamentary cases are pending since 1995 and Order XVIII Rule 16 of Code of Civil Procedure, 1908 (CPC) entitles a party to apply to the Court on a urgent basis for examination of a witness. Neither Rajender nor Manjit took any steps in that direction. Not only so, Rajender did not, invoking Section 69, examine any witness familiar with the handwriting of the said M.P. Singh Ahluwalia. The date of demise of M.P. Singh Ahluwalia claimed to be in the year 2001 is also not disclosed to be proved. Though Rajender attempted to examine the other attesting witness namely Harjeet Singh but as aforesaid, the said witness did not prove the document and did not identify the signatures on the document dated 15^thNovember, 1994 to be of Joginder. Though the counsel for Rajender has stated that the said witness Harjeet Singh turned hostile but as aforesaid no attempt was made to cross-examine him. Rather, as aforesaid, Rajender, till then was

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disputing the document dated 15^thNovember, 1994 to be the Will of deceased Joginder.

21. Thus the only inference is, that neither Rajender nor Manjit, did not even make efforts which they could make in law, to prove the document dated 15^thNovember, 1994 as the validly executed last Will of deceased Joginder.

22. The only conclusion is, that the document dated 15^thNovember, 1994 has not been proved as the Will of the deceased. The putting of Ex.PW2 thereon, is of no avail. Since the document, of which probate has been claimed in Test Cas. No.42/1995, has not been proved as a Will of the deceased, Test Cas. No.42/1995 has to be dismissed.

23. It is perhaps for this reason only that the counsel for Rajender also confined his submissions to the challenge to the document dated 15^thMay, 1994 of which probate is sought in Test Cas. No.37/1995 and that too by admitting the signatures thereon to be of the deceased and confining the challenge thereto only to proof of execution thereof as a Will and if so proved, to the same having been executed under undue influence.

24. That brings us to the challenge by Rajender alone to the document dated 15^thMay, 1994. As aforesaid, Rajender during the hearing admitted the signatures on the said document to be of Joginder and confined the challenge only to execution of the document in accordance with Section 63 supra of the Indian Succession Act and to the plea of Joginder having executed the document dated 15^thMay, 1994 not of his own volition but under undue influence of Jatinder.

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25. As far as the contention of Rajender, of undue influence is concerned, before discussing the extracts of the evidence relied upon by Rajender in this regard, I may state (i) that it was the admitted position during the hearing that all the other sons of Joginder, namely Rajender, Surinder, Satbinder and Gurbachan, had separated from Joginder and had set up their separate businesses in or about the year 1979 and only Jatinder had remained joint in business and residence with deceased Joginder; and,

(ii) that the document dated 15^thMay, 1994 was executed after about four years from the time Rajender instituted CS(OS) No.1441/1990 aforesaid against Joginder and his other siblings. Though the said suit has been disposed of but since CCP(O) No.62/2010 arising therefrom is pending consideration, the suit file is also before this Court and I have perused the suit record to see whether any inkling of Joginder being under the undue influence of Jatinder can be deciphered therefrom.

26. The suit aforesaid filed by Rajender, was for dissolution of the partnership firm Royal Safe Company and for rendition of accounts and partition of immovable properties of the firm. It was the plea of Rajender that shares of Rajender, Joginder, Gurbachan, Surinder, Satbinder and Jatinder in the firm were 20%, 15%, 20%, 20%, 15% & 10% respectively and the firm had discontinued its business since September, 1979.

27. I have perused the plaint of April, 1990 in the suit aforesaid filed by Rajender and though admittedly Joginder and Jatinder alone had continued to be joint in residence and business and all other sons of Joginder had separated as far back as in 1979, but it was not the plea of Rajender till April, 1990 that Joginder was under undue influence of Jatinder. Therefore

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it can safely be assumed that from October, 1979 till April, 1990, inspite of Jatinder alone being joint in residence and business with Joginder, it was not the plea of anyone that Joginder was under the influence or undue influence of Jatinder. What remains to be seen is, whether post April, 1990, till 15^thMay, 1994, Joginder came under undue influence of Jatinder.

28. Joginder, Gurbachan and Jatinder filed a joint written statement dated 6^thNovember, 1990, contesting the suit and inter alia pleading:-

(a) that it was Rajender who had sought dissolution vide letter dated 15^thJuly, 1979;

(b) that a Dissolution Deed dated 22^ndSeptember, 1979 was executed and the parties had acted upon the same and thus the suit for dissolution, accounts and partition was misconceived;

(c) that in the dissolution, two properties had fallen to the share of Rajender and which were not mentioned in the plaint;

(d) that the properties of the firm, on dissolution, had been divided into six portions on the lines as suggested by Rajender; and,

(e) that Rajender on his own had exchanged his initially allotted properties with Jatinder; and,

(f) that though Joginder was the exclusive owner of Property No.E-28, Rajouri Garden but Rajender, being the son, was allowed user of the first floor thereof; however Rajender misbehaved with Joginder and for which reason Joginder had terminated the licence of user granted to Rajender and filed a suit for recovery of possession of the said first floor from Rajender and which was pending and in

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which suit Rajender had put up a false defence on forged receipts showing himself as a tenant with respect to the first floor of the said property under Joginder.

29. The aforesaid said facts are definitely relevant for the exclusion of Rajender from the Will if any of Joginder.

30. Rajender, in his replication dated 5^thDecember, 1991 to the aforesaid written statement, is not found to have pleaded that Joginder had filed the suit for recovery of possession of the first floor of Property No.E-28, Rajouri Garden against him under undue influence of Jatinder.

31. Thus, till 5^thDecember, 1991 also, it was not the case of Rajender that the father Joginder was under the undue influence of Jatinder.

32. Surinder and Satbinder also in their separate written statements pleaded that the suit was not maintainable because of Dissolution Deed dated 22^ndSeptember, 1979 which had been acted upon. However, during trial, Surinder and Satbinder took a stand contrary to their pleadings, by stating that there was no final distribution of immovable properties amongst the partners, however the said stand, being contrary to their pleadings, was not accepted in the judgment dated 23^rdNovember, 2012 of dismissal of the suit.

33. A perusal of the suit record also shows Rajender to have, on demise of Joginder, filed an application for substitution of all the five sons and daughter in place of Joginder. The order dated 24^thAugust, 1995 in the suit file shows that though Rajender, Gurbachan, Surinder and Satbinder, all stated that since they were already parties to the suit, only Manjit had to be substituted in place of Joginder, but Jatinder opposed the said substitution

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stating that the deceased had left a Will in his exclusive favour and thus Manjit could not be substituted in place of Joginder. Though Manjit, who claimed to be in possession of the document dated 15^thNovember, 1994 was also present and was also represented before the Court on 24^thAugust, 1995, but did not claim Joginder to have left any Will dated 15^thNovember,

1994.

34. Though the aforesaid suit remained pending as aforesaid till dismissal on 23^rdNovember, 2012 with issues having been framed therein on 23^rdFebruary, 1994 but the counsel for Rajender has not argued that at any point after 5^thDecember, 1991 also and till the date of demise of Joginder it was the plea of Rajender in the said suit that Joginder was under undue influence of Jatinder.

35. The judgment dated 23^rdNovember, 2012 of dismissal of suit reasons, that no convincing explanation was given by Rajender as to why he kept silent for eleven years after September, 1979 when the firm Royal Safe Company stopped carrying on business and as to why he did not seek dissolution of the firm and distribution of its immovable properties till 1990 - had there been no distribution of immovable properties of the firm, Rajender could not have kept silent and allowed other partners of the firm to exclude him from the use and enjoyment of valuable properties of the firm for as many as eleven years; though Rajender, after 1979 did not use the trade name Royal Safe Company but the some of the others were using the same and it was inexplicable as to why Rajender did not take any action and allowed others to take advantage of the reputation of the firm - this also indicated that there was dissolution of the firm followed by

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distribution of all its assets including goodwill and that is why Rajender did not object to use of the trade name by his father Joginder and by some of his brothers. The judgment further records that it was the argument of the counsel for Rajender, that though Rajender had 20% share in the firm, he did not get proportionate share in the immovable properties - however no merit was found in the said argument as it was found that Rajender had got some valuable properties in dissolution of 1979.

36. There is nothing in the judgment aforesaid showing it to have been the plea of Rajender, till the time Joginder was alive, that Joginder was under undue influence of Jatinder.

37. Similarly, a perusal of the judgment dated 17^thMay, 2013 of dismissal of RFA(OS) No.29/2013 preferred by Rajender also does not show it to have been the plea of Rajender in the suit at any time that Joginder was under undue influence of Jatinder. In fact, as aforesaid, even Gurbachan had filed a joint written statement along with Joginder and Jatinder. The Division Bench also found the Dissolution Deed to be in the nature of a Family Settlement.

38. The aforesaid facts are of immense importance for adjudication of the plea of Rajender of execution of the document dated 15^thMay, 1994 by Joginder under undue influence of Jatinder.

39. The first testimony relied upon by the counsel for Rajender in this regard is of Manjit, recorded on 9^thMay, 2003 and 21^stJanuary, 2004 to the effect that Joginder told Manjit that he was forced to sign the Will dated 15^thMay, 1994 and that the said Will was got prepared by Jatinder and Joginder was forced to sign the same.

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40. As foresaid, Manjit has already withdrawn her objections to the document dated 15^thMay, 1994 and with withdrawal whereof, her evidence if any to the said effect also stands withdrawn and this Court cannot at this stage act on the basis of the testimony which has been withdrawn by the witness.

41. Reliance is also placed on the testimony of Manjit to the effect that Joginder was totally dependent upon Jatinder for all meals and medical treatement and Jatinder snubbed him on every occasion.

42. I may in this regard notice, that Joginder was contesting the suit filed by Rajender till the date of his demise and it was not the plea of Rajender in the said suit that Joginder, owing to his old age or any other reason was not competent to take decisions for himself.

43. Rather, Joginder was in litigation with Rajender and had expressed grievance at the conduct of Rajender. There is nothing to show Joginder, till the date of his demise had any grievance against Jatinder.

44. The only other argument of the counsel for Rajender is, of the execution of the document dated 15^thMay, 1994 admittedly executed by Joginder, having not been in accordance with Section 63 of the Indian Succession Act. The counsel, in this regard, firstly referred to the inconsistencies between the testimonies of Ravinder Pal Singh and Yoginder Singh Bhatia being the two attesting witnesses to the document dated 15^thMay, 1994. It was argued, that while Ravinder Pal Singh stated that some lady members of the house were present when the Will was executed and which could only be „Sweety", wife of Jatinder, Yoginder Singh Bhatia deposed that he did not meet „Sweety" on the date of

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execution of the Will. While Ravinder Pal Singh deposed that he stayed at the house of Testator for 15 - 20 minutes on the date of execution of the Will and that when he reached Yoginder Singh Bhatia was already present, Yoginder Singh Bhatia stated that he remained in the house of the Testator for one and a half hours.

45. Per contra, the counsel for Jatinder argued that the cross-examination of the aforesaid two attesting witnesses took place seven years after the date of execution of the Will and the inconsistencies pointed out are not such as to make the evidence of the said witnesses unbelievable.

46. The counsel for Jatinder, on the aspect of undue influence, also referred to the cross-examination of Rajender wherein he admitted that he was in constant litigation with Joginder and to Ex.R5/W1/PA, being the publication dated 22^ndJune, 1990 in the Hindustan Times newspaper whereby Joginder had disowned Rajender and debarred Rajender from all his properties and has relied on Seth Beni Chand Vs. Kamla Kunwar AIR 1977 SC 63 (paras 9&10) and argued that in the said state of affairs Joginder could not be expected to possibly reward Rajender with any inheritance. Reliance is also placed on Mahesh Kumar Vs. Vinod Kumar (2012) 4 SCC 387 to contend that there is nothing unusual in Joginder having left his entire estate to Jatinder only, in the face of the earlier Family Settlement and Jatinder only having remained joint with Joginder. Reliance is also placed on Rakesh Kumar Gaur Vs. Vipin Gaur 157 (2009) DLT 769 (para 38) to contend that with respect to registered Wills, where the Sub Registrar of documents, at the time of registration makes an

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endorsement, it shows the Will to be of the own volition of the Testator and of the Testator being in a sound disposing mind.

47. I have considered the rival contentions and on a reading of the testimonies of the witnesses, do not find a case of Joginder being under the undue influence of Jatinder or of the registered document dated 15^thMay, 1994 purporting to be the Will of Joginder having not been proved to be executed in accordance with Section 63 of the Indian Succession Act to have been made out. The sole testimony qua the plea of undue influence is of Manjit which as aforesaid has been withdrawn. The plea of undue influence having not been taken in the earlier litigation pending between Rajender and Joginder till the demise of Joginder, is found to be clearly an afterthought and having not been established.

48. A reading of the entire testimonies of Ravinder Pal Singh and Yoginder Singh Bhatia, being the attesting witnesses of the document dated 15^thMay, 1994, also shows a ring of truth in their statement and the two inconsistencies pointed out by the counsel for Rajender to be in consonance with the testimony of a truthful untrained witness. My experience of trial tells me that persons not accustomed to the language and procedure of the Court, in the Court also speak in the same manner as they are used to speaking otherwise and which when seen with a microscope to find faults therein by a Judge before whom the said witnesses have not deposed, may show a number of inconsistencies. The testimony, only of a witness who is trained for hours before deposition in the Court, can read perfect and in harmony with those of other witnesses which he / she has been made to read. Both the attesting witnesses have proved Joginder having signed in

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their presence and they having signed in the presence of Joginder and in the presence of each other and which satisfies the requirement of Section 63.

49. Thus, no merit is found in the two grounds to which the challenge was confined by the counsel for Rajender and to the document dated 15^th May, 1994.

50. However, the counsel for Rajender in his written submissions has also made some other submissions and to be fair to him, some of them were also argued orally. I will thus not bind down the counsel to his statement recorded in the order dated 2^ndJanuary, 2017 and proceed to consider the said submissions also.

51. The emphasis of the counsel for Rajender was on the Settlement dated 29^thAugust, 2011 between Jatinder and other siblings except Rajender. Attention was drawn to the portions of cross-examination of Jatinder to contend that in the said Settlement, the properties have been distributed in accordance with the document dated 15^thNovember, 1994. Reliance is placed on (i) Sushila Devi Vs. Bishwanath Ram

MANU/BH/0348/1989 (FB) - to contend that parties cannot be allowed to settle a probate matter by a compromise and Order XXIII Rule 3 of the CPC does not apply to the probate proceedings; (ii) Uma Addhya Vs. Biren Mondal AIR 2006 Cal 200 (DB) - to contend that compromise Agreement cannot form part of probate; (iii) Vidya Wati Vs. State 19 (1981) DLT 196 - to contend that whether there are any objections filed or not, the Probate Court, in a proceeding under Section 276 of the Indian Succession Act, has to go into the question of due execution and validity of the Will; (iv) K. Laxmanan Vs. Thekkayil Padmini AIR 2009 SC 951 - to contend that the

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propounder has to prove the legality and validity of the execution and genuineness of the Will by proving the absence of suspicious circumstances surrounding the Will; and, (v) H. Venkatachala Iyengar Vs. B.N. Thimmajamma AIR 1959 SC 443 - to contend that propounder taking a prominent part in the execution of the Will and receiving substantial benefit thereunder, itself is treated as a suspicious circumstance.

52. I had, during the hearing, invited the attention of the counsel for Rajender to the judgments of this Court in Harinder Singh Kochar Vs. State (2010) 173 DLT 365, B.S. Oberoi Vs. P.S. Oberoi 2013 SCC OnLine Del 616 (DB) and Ambica Mengi Vs. State MANU/DE/4557/2015 holding that in a Probate Case a decree for partition can be passed by converting it into a suit; however for Probate also to be granted, the formality of proof of Will has to be complied with.

53. I am even otherwise unable to understand the purport of the contention of the counsel for Rajender in this respect. A Testamentary Court is not required to go into the title of the deceased to the properties bequeathed under the Will or into the question of interpretation of the Will. Reference in this regard can be made to Chiranjilal Shrilal Goenka Vs. Jasjit Singh (1993) 2 SCC 507, Delhi Development Authority Vs. Vijaya C. Gurshaney (2003) 7 SCC 301, Krishna Kumar Birla Vs. Rajendra Singh Lodha (2008) 4 SCC 300, Rakesh Kumar Juneja Vs. The State 2017 SCC OnLine Del 12484 and Sarla Gupta Vs. The State 2017 SCC OnLine Del 12689. It was thus enquired from the counsel for Rajender, that even if Jatinder has agreed to share what was bequeathed exclusively to him under the Will dated 15^thMay, 1994 with anyone else, and even if

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on the same lines as the bequest in the document dated 15^thNovember, 1994, what difference did it make to the proof of the document dated 15^th May, 1994 which has been found to have been proved in accordance with Section 63 of the Indian Succession Act to be the Will of Joginder. The same cannot prove the document dated 15^thNovember, 1994 as the Will of Joginder as the said document has not been proved in accordance with Section 63 to be the Will of Joginder.

54. The only answer of the counsel for Rajender that it was the suspicious circumstance.

55. Once the document dated 15^thNovember, 1994 has not been proved, this Court cannot look into it at all and thus the counsel for Rajender is not entitled to urge that the distribution agreed upon by Joginder with other siblings is in terms thereof. Else, Jatinder as sole owner of the estate of his father is free to deal with it in any manner whatsoever and merely because Jatinder has decided to share the same with his siblings, cannot in my view constitute a suspicious circumstance. Even otherwise, the settlement arrived at between Jatinder and others is in the nature of Family Settlement and which has been accorded the highest sanctity in law. Merely because Jatinder, for the sake of buying peace with his other brothers and sister with whom he earlier also did not have any dispute during the lifetime of the father, has agreed to share the estate bequeathed exclusively to him, does not in my view constitute a suspicious circumstance.

56. The counsel for Rajender in his written submissions has also pointed out, that Joginder under the document dated 15^thMay, 1994 has acted contrary to the earlier Family Settlement of 1979.

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57. I have already hereinabove recorded that this Court, exercising testamentary jurisdiction, is only concerned with the proof of the document of which probate is sought as the validly executed last Will and not with questions of title or interpretation of the document.

58. The other contentions of the counsel for Rajender in the written synopsis are with respect to other suspicious circumstances. It is argued (i) that Ravinder Pal Singh, one of the attesting witnesses to the document dated 15^thMay, 1994, has deposed that he knew Sweety wife of Jatinder and treated her as a sister; (ii) however, Ravinder Pal Singh stated that he did not disclose about the Will to Sweety or to any other person; (iii) that the other attesting witness Yoginder Singh Bhatia could not give any satisfactory explanation of his relationship with Joginder; (iv) that both the attesting witnesses were confidantes of Jatinder; (v) Jatinder, in his cross- examination, admitted that the relations of Joginder with all his children except Rajender were cordial from 1985 till his death; there is no explanation as to why Joginder would exclude his other children from his estate; (vi) Jatinder, in his cross-examination also admitted that the description of four of the properties in the document dated 15^thMay, 1994 was not clear; (vii) the Will is also with respect to property no.C-114, Naraina Industrial Area, Phase-I, New Delhi lease whereof had been cancelled in 1992 and the said property could not have been mentioned in the Will dated 15^thMay, 1994; (viii) Jatinder, in his testimony appeared to distance himself from the two attesting witnesses; (ix) Joginder, owing to the litigation with Rajender, was in touch with Advocates and family members and there was no reason for Joginder to, if desirous of making a Will, have it witnessed from Ravinder Pal Singh and Yoginder Singh

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Bhatia who were unknown to him and not related to him; (x) Gurbachan also deposed that Joginder"s relations with Jatinder were not cordial; (xi) Satbinder deposed that Joginder"s health deteriorated because of lack of proper medication and that Joginder was not having a sound disposing mind; (xii) Rajender also in his testimony deposed that Jatinder had got blank paper signed from Joginder; (xiii) R5W2 Harpreet Singh Bedi, a neighbor of Joginder also deposed that Joginder was in a depressed state of mind; and, (xiv) R5W3 Naval Pal Singh deposed that the Public Notice dated 22^ndJune, 1990 disowning was got published by Jatinder in the name of Joginder and that Joginder was regular in his business till 1992 only.

59. I have perused the testimonies in entirety of the witnesses aforesaid and am again unable to accept the contention of the counsel for Rajender that any circumstances which can be said suspicious have been proved.

60. As far as the aspect of Joginder, inspite of being in touch with Advocates and other family members, having not got the document dated 15^thMay, 1994, if intended to be a Will, attested from any of the said persons is concerned, notice can be taken of the fact that litigating Advocates are generally reluctant to sign either as draftsman or attesting witness of documents prepared by them for obvious reason of being subsequently required to appear as a witness and being deprived of being briefed in the matter. As far as other family members are concerned, in today"s world where families have disintegrated and individualism has come to the fore and travel has increased, it is indeed difficult to convince a family member to become a witness to a Will and to thereby take a partisan stand in the family. No family member generally wants to antagonize one

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set of family. Moreover, sitting in the armchair of the Testator, as is required to be done in such cases, I can also say that as a Testator I would require my Will to be attested by witnesses whose allegiance to the beneficiary of my Will would be unshakable. Such persons would generally be found in the close confidantes of the beneficiary i.e. either the personal friend of the beneficiary or the relatives from the side of the spouse of the beneficiary and who have no relationship with the rest of the Testator"s family. There is thus nothing unusual in finding Wills to be attested by the members of the family of the in-laws of the beneficiary thereunder. In the present case also, Ravinder Pal Singh has deposed to be a partner of the brother of wife of Jatinder and the suggestion in cross-examination of the counsel for Rajender, to the other attesting witness Yoginder Singh Bhatia also is, of a connection with Ravinder Pal Singh. Both Ravinder Pal Singh and Yoginder Singh Bhatia are thus made out to be friends of brother of the wife of Jatinder and merely because Joginder got his Will in favour of Jatinder attested from such persons close to Jatinder, does not raise any suspicion.

61. As far as the reliance by the counsel for Rajender, on testimonies of Gurbachan and Satbinder is concerned, they like Manjit though had earlier filed objections in Test Cas. No.37/1995 but withdrew the same and thereby their testimonies also stand withdrawn and no reliance can be placed thereon. I may also notice that Gurbachan, till the demise of Joginder, was contesting the suit filed by Rajender along with Joginder and Jatinder and did not at any time say that Joginder is under control of Jatinder.

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62. As far as the testimonies of Harpreet Singh Bedi and Naval Pal Singh are concerned, they are found to be very general and with an intent to support the plea of Rajender. It cannot be forgotten that they are neighbours, not only of Joginder and Jatinder, but also of Rajender, for years and are not found to have shown any occasion for assessing the soundness of mental and physical health of Joginder. Rather, it has emerged that they were not in touch with Joginder.

63. Similarly, the testimony of Rajender himself is self serving. Rajender, as aforesaid, at least for four years prior to the institution of these petitions, was litigating with Joginder and had no occasion to interact socially with Joginder. Rather, from the written statement it appears that Joginder nurtured a grievance with respect to the conduct of Rajender. Though Rajender could have, from the Court appearances of Joginder, gauged the infirmity in mental and physical well being of Joginder, but did not at any time as aforesaid contend so during the pendency of CS(OS) No.1441/1990. His deposition thus does not inspire confidence.

64. I thus hold the document dated 15^thMay, 1994 to have been proved to be the validly executed last Will of Joginder Singh, S/o Shri Ladha Singh last R/o E-28, Rajouri Garden, New Delhi.

65. Resultantly, Test. Cas.37/1995 is allowed and Test. Cas.42/1995 is dismissed. All the pending applications in both, on which no separate arguments were addressed, are also disposed of in terms of final order. Probate is ordered to be granted to Jatinder of the document dated 15^th May, 1994 as the validly executed last Will of Joginder Singh, S/o Shri Ladha Singh last R/o E-28, Rajouri Garden, New Delhi, subject to Jatinder

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depositing the requisite Stamp Duty and furnishing Administration Bond for the value of the estate with one surety in the like amount.

66. I will next take up CCP(O) No.62/2010.

67. I may at the outset state that as per the dicta of Division Bench of this Court in Dr. Bimal Chandra Sen Vs. Kamla Mathur ILR (1982) 11 Delhi 407 followed in Govind Sarda Vs. Sartaj Hotels Apartments and Villas Pvt. Ltd. 130 (2006) DLT 460, Ishwar Industries Ltd. Vs. The Crocus Chattels Pvt. Ltd. 128 (2006) DLT 10 and Vimal Kumar Vs. Ramesh Negi MANU/DE/2041/2011 for violation of an order under Order XXXIX Rules 1&2 of the CPC, provisions of Sections 11&12 of the Contempt of Courts Act, 1971 which have been invoked in CCP(O) No.62/2010, cannot be invoked and the remedy if any is under Order XXXIX Rule 2A of the CPC. CCP(O) No.62/2010 is thus liable to be rejected on this ground alone.

68. However, since same has been pending for long, I have considered the same on merits as well. Though notice thereof is found to have been issued but thereafter no proceedings are found to have taken place in the same.

69. The grievance of Rajender, in CCP(O) No.62/2010, is that vide order dated 10^thDecember, 2008 in CS(OS) No.1441/1990, the defendants therein namely Joginder, Gurbachan, Surinder, Satbinder and Jatinder were restrained from selling, transferring or creating any third party interest or parting with possession of property no.C-114, Naraina Industrial Area, Phase-I, New Delhi and property no.13/39, Western Extension Area, Arya Samaj Road, Delhi; the said order was extended from time to time and

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finally on 20^thMay, 2009 the defendants were directed to maintain status quo in respect of title and possession of property no.C-114, Naraina Industrial Area, Phase-I, New Delhi; however Gurbachan and Jatinder created third party interest in the said property and qua which IA No.14120/2009 was filed in the suit; that Gurbachan and Jatinder, in reply to said application, did not expressly deny the averments in the application thereby admitting that third party rights had been created in property no.C- 114, Naraina Industrial Area, Phase-I, New Delhi after passing of the interim order; that violation committed is also substantiated in the report dated 13^thJuly, 2009 of the Court Commissioner; that Gurbachan and Jatinder claim that they are running the units complained of in partnership with Samsung or with Omkar Enterprises; such a claim is untenable because no documents with respect thereto have been filed.

70. Gurbachan, in his reply to the CCP(O), is found to have denied creation of any third party interest and to have pleaded having placed on record the requisite MoUs and to have further pleaded that under the Dissolution Deed 22^ndSeptember, 1979, the property no.C-114, Naraina Industrial Area, Phase-I, New Delhi belongs to Gurbachan and Jatinder only.

71. Jatinder also, in his reply to CCP(O) has denied violation of any order and relied on his affidavit dated 17^thMay, 2010 in reply to the application filed by the Rajender in the suit in this regard. Jatinder is also found to have placed on record Business Collaboration Agreements dated 13^thDecember, 2008 and 1^stMarch, 2009 with Omkar Enterprises and Boscos respectively.

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72. Neither counsel addressed on the CCP(O).

73. Considering the fact that the suit filed by Rajender, in which CCP(O) No.62/2010 was filed, has been dismissed and the said decree has attained finality, now after eight years it is not found expedient to initiate proceedings for violation of the interim order in a suit which itself has been decided against Rajender. CCP(O) No.62/2010 is thus dismissed.

74. All the three proceedings are disposed of.

RAJIV SAHAI ENDLAW, J.

JULY 03, 2018

„pp"

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