Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.34/1994
th
% 6 September, 2011
SHRI RAJ KUMAR SINGH & ANR. ...... Appellants
Through: Mr. G. Tushar Rao and Mr. Atanu
Mukherjee, Advocates.
VERSUS
MRS. JAGJIT CHAWLA & OTHERS ...... Respondents
Through: None.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this first appeal under Section 299 of the
Indian Succession Act, 1925, is to the impugned order of the probate court
dated 25.11.1993, which has granted probate of the Will of the deceased
Sh. Sohan Singh dated 3.1.1976.
2. Before proceeding further, I must state that the present case is not
one of the cases where there is a classical dispute with respect a Will
interse heirs of the deceased. In the city of New Delhi, before the
provision of Section 53-A of the Transfer of Property Act 1882, dealing
with the doctrine of part performance and incorporation of Article 23-A in
FAO No.34/1994 Page 1 of 14
the Stamp Act as applicable to Delhi requiring Stamp duty of 90% of the
value of an Agreement to Sell were amended by Act 48 of 2001, transfer
of title of an immovable property in Delhi was taking place by documents
being the Agreement to Sell (taking benefit of doctrine of part
performance under Section 53-A of the Transfer of Property Act 1882),
General Power of Attorney (on the basis of Section 202 of the Contract Act
1872, where a power of attorney given for consideration could not be
cancelled), Will (to operate after the death of the seller as the power of
attorney after death is not effective). The amendment which was brought
about to Section 53-A of the Transfer of Property Act, 1882 along with the
related provisions is The Registration and other Related Law (Amendment)
Act, 2001 [Act No. 48 of 2001].
3. I am stating these preliminary facts because in ordinary cases with
respect to dispute with regard to execution of Will, there arise issues with
respect to either suspicious circumstances surrounding the Will or why the
some of the natural heirs are disinherited or the propounder taking active
participation in making of the Will and so on, but these aspects would pale
into insignificance in the facts of the present case where basically the Will
has been executed in furtherance of the action for transferring of the
property being plot No.75 admeasuring 200 sq. yards in Block-C Jhilmil
Tahirpur Residential Scheme G.T Road, Railway Lines near I.T.I.Shahdara,
Delhi. (in short „the subject property‟). In fact, the subject Will Ex.P-1
FAO No.34/1994 Page 2 of 14
dated 3.1.1976 was preceded by a registered General Power of Attorney
(GPA) Ex.PW3/1 dated 3.12.1973 with respect to the subject property.
4. The facts of the case are that the respondent no.1, petitioner in the
probate petition filed a petition under Section 276 of the of the Indian
Succession Act, 1925 for grant of a probate in respect of the Will dated
3.1.1976 of the deceased Sh. Sohan Singh, who is stated to have died on
12.3.1976. The deceased was survived by his widow, one son and two
daughters and which persons objected to the claim of probate. The
respondent no.1 had pleaded that the deceased Sh. Sohan Singh had from
time to time taken different amounts of loans, including on the occasion of
the marriage of his daughter, and when the loan figure reached an
amount of Rs.12,000/-, the deceased Sh. Sohan Singh agreed to transfer
the subject property for adjusting the loan amount, and for which purpose,
he executed a registered General Power of Attorney dated 3.12.1973 in
favour of the probate petitioner. This General Power of Attorney was an
exhaustive General Power of Attorney not only to take every action with
respect to the property, but the said General Power of Attorney included
the power to even sell the property. The deceased Sh. Sohan Singh,
thereafter is stated to have executed the Will dated 3.1.1976 i.e. after
roughly about 2 years of execution of the General Power of Attorney dated
3.12.1973. Therefore, the basic case of the probate petitioner was that
the property has been disposed of as per the Will for consideration.
FAO No.34/1994 Page 3 of 14
5. The appellants contested the probate petition and alleged that the
Will was unnatural because there was no reason stated in the Will to
disinherit the natural heirs. It was further alleged that the deceased Sh.
Sohan Singh at no point of time, during his life time ever mentioned about
the execution of the Will. It was further alleged that the Will was a forged
and fabricated document and that the deceased Sh. Sohan Singh was in a
sound financial condition and hence there was no need to sell the
property and in fact no loans were taken.
6. The main issue therefore which was argued before the probate
Court, and which is also an issue argued before me, is that whether the
deceased Sh. Sohan Singh left behind a valid Will dated 3.1.1976.
7. Respondent No.1 before the trial Court led evidence of as many as
seven witnesses including of a handwriting expert. The objectors
examined four witnesses including their handwriting experts. The
witnesses PW2 and PW3 were the attesting witnesses to the Will. PW-4
deposed with respect to the loan being advanced of the total amount of
Rs.12,000/- to Sh. Sohan Singh by Sh. Sewa Singh (father-in-law of
probate petitioner) and which when demanded from Sh. Sohan Singh, he
had agreed to transfer the subject plot by execution of the Power of
Attorney Ex.PW3/1. He also deposed with regard to execution of the Will
deed Ex.P-1 in favour of the daughter-in-law/the probate
petitioner/respondent and also the fact that original title documents of the
property were handed over to the probate petitioner. PW-5 Sh. Rajender
FAO No.34/1994 Page 4 of 14
Kumar deposed that he knew Sh. Sohan Singh since the year 1967 and
that Sh. Sohan Singh used to take loans. He also deposed with respect to
the good health and sound disposing mind of the deceased Sh. Sohan
Singh. The probate petitioner deposed as PW-6 and she deposed that the
Will Ex.P-1 was executed because the deceased Sh. Sohan Singh had
taken loans from her father in law Sh. Sewa Singh, and for which purpose,
the power of attorney Ex.PW3/1 and the Will Ex.P-1 was executed. PW-7
was the handwriting expert Sh. M.K. Mehta who gave his opinion with
respect to the signatures of the deceased Sh. Sohan Singh on the Will
Ex.P1 by comparing the same with various admitted signatures.
8. RW-1 Sh. Rajkumar was the son of Sh. Sohan Singh and he deposed
with respect to his father not living in Delhi and that his father owned
agricultural land. He also deposed that neither the Will nor the general
power of attorney contained the signatures of his father Sh. Sohan Singh.
RW-2 Sh.Laik Ram was the father-in-law of the daughter of the deceased
who deposed that the deceased never told him about monetary dealing
with any person including Sh. Sewa Singh father-in-law of the probate
petitioner. RW-3 Sh. Rameshwar Dayal deposed that Sh. Sohan Singh had
about 40-45 bighas of land with a garden and tubewell in the village. RW-
4 Sh. D.P.Bhatia was the handwriting expert on behalf of the
appellants/objectors.
9. The Court below has duly examined the statement of each of the
witnesses alongwith their cross-examinations and the arguments of the
FAO No.34/1994 Page 5 of 14
respective counsel on the basis of such statements. While dealing with
the deposition of RW-1 Sh. Raj Kumar, the son of the deceased Sh. Sohan
Singh, the trial Court has observed the following in para 26 of the
judgment:-
“RW-1 Rajkumar son of the testator has stated
that his father never told him that he had executed
any will in favour of the petitioner. He has also
stated that the will Ex.P-1 is not signed by his father.
In cross-examination, he has admitted that letters
written by his father were available with him but he
has not produced them nor brought them with him
which could be used for comparison and has with-
held the same. In any case, he is an interested
witness and he is directly affected as the will is
against his interest. In that case, it would not be in
his interest to admit the signatures of his father on
the will Ex.P-1. He has even denied signatures of
his father on the power-of-attorney Ex.PW-3/1 which
RW-2 has not specifically denied and which has also
been proved by PW-4, whose testimony on this
aspect was not challenged. This power-of-attorney
is duly registered with the Sub-Registrar and it
carries presumption of due execution by its
executants Shri Sohan Singh. Denial by RW-1 of this
power of attorney Ex.PW-3/1 is thus not bona fide
which also makes his testimony regarding the will
Ex.P-1 not reliable. He has however admitted that
perpetual lease-deed Ex.PX is signed by his father
but he did not know and could not tell how the
petitioner came to be in possession of this lease
deed. This lease-deed was produced in court by the
petitioner on application made by the objector and it
cannot be said that he would not be aware how this
Ex.PX (lease deed) came in the possession of the
petitioner. In any case, there is no explanation from
the side of the objector as to how this document
was not in their possession and how it was with the
petitioner. In the circumstances, it has to be
inferred that he was aware that his father must have
given this document to the petitioner in pursuance
of some obligation incurred by him and this also
FAO No.34/1994 Page 6 of 14
suggests that he was also aware about the
will.”(Emphasis added)
10. On the reports of the handwriting experts, the Court below has
referred to the fact that evidence of handwriting expert can never be
conclusive and the same must be received with great caution, however no
hard and fast rule can be laid down and each case has to be decided as
per its own merits. While dealing with the respective reports of the
handwriting experts of both the parties, the Court below has referred to
the fact that the report prepared by the handwriting expert of the
appellants only relies upon the letter dated 15.10.1972 alleged to have
been written by the deceased Sh. Sohan Singh and authorship of which
letter was not proved on record, and more importantly, the disputed
signatures having not been compared with the admitted signatures
appearing on the perpetual lease deed Ex. PX which was signed at several
places by the deceased Sh. Sohan Singh. Accordingly, the Court below
preferred the report of handwriting expert of the respondent No.1 in
preference to the report of the handwriting expert of the appellants by
observing as under:-
“32. So, the question to be decided is, whether the
evidence of the expert examined on behalf of the objectors
is sufficient to discredit/disbelieve the direct testimony of
PW-2 and PW-3. Their expert Sh. D.P.Bhatia has appeared
as RW-4. He has given his expert opinion about the
disputed signatures on the will Ex.P-1 and the power-of-
attorney Ex.PW3/1 on the basis of a letter dated 15-10-
1972, alleged to have been written by Sohan Singh. The
authorities of that letter has not been proved on record.
Even RW-1 son of the testator has not proved it. The
disputed signatures on the will have not been compared
FAO No.34/1994 Page 7 of 14
with the signatures appearing on the perpetual lease-deed
Ex.PX, which has found above, is signed by the testator at
several places. By not doing so, this witness has avoided
to consider valid material, for no reasons. His evidence, in
the circumstances, cannot be said to be unbiased.
Accordingly to this expert evidence, the power-of-attorney
Ex.PW-3/1 is also not signed by the person who has signed
the letter dated 15-10-1972, which as held above, had
been executed by the testator.
33. On the other hand, Shri M.K.Mehta (PW-7) Handwriting
expert examined on behalf of the petitioner, has opined
that the will Ex.P-1, power-of-attorney Ex.PW-3/1 and the
perpetual lease deed Ex.PX are signed by the same person.
He had been cross-examined at great length, and during
arguments expert-evidence was not touched on behalf of
the objectors. He has given very sound reasons in his
report, and during his oral examination in support of his
opinion, and I do not find any infirmity or reason to discard
his opinion, or is prefer the opinion of RW-4 Mr. Bhatia
Objector‟s expert.”(underlining added).
11. The trial Court has also observed that the testimonies of the
attesting witnesses PW-2 and PW-3 are of independent, dis-interested,
satisfactory and trustworthy witnesses on the point of due execution and
attestation of the Will and therefore there was no reason to disbelieve
them. It was therefore held that the Will Ex.P1 was proved to have been
signed by deceased Sh. Sohan Singh in the presence of the attesting
witnesses who signed in the presence of the testator.
12. A resume of the above-said facts, findings and conclusions of the
trial Court as also other findings/discussions otherwise given in the
impugned judgment and decree, show that the following conclusions can
safely be arrived at:-
FAO No.34/1994 Page 8 of 14
(i) The deceased Sh. Sohan Singh executed the registered
General Power of Attorney Ex.PW3/1 in favour of Sh. Sewa Singh and
which was an exhaustive General Power of Attorney giving all powers
including to sell the property. This Power of Attorney being registered,
there is no reason to disbelieve the same and the contents of the same
show that exhaustive powers including to sell the property were given and
which could not be so if the title in the property was not meant to be
transferred. Further, this Power of Attorney admittedly was never revoked
during the life time of Sh. Sohan Singh.
(ii) The very fact that the Will Ex.P1 is executed after about two
years of the execution of the power of attorney Ex.PW3/1 is proof of the
fact that Sh. Sohan Singh remained honest and true in his life time and
after execution of the General Power of Attorney he also executed a Will
much later inasmuch as the power of attorney will not operate after his
death.
(iii) If there was not to be any transfer of title of the subject
property under the Power of Attorney and the Will, there was no reason
why the original documents of the title of the property would have been
delivered to the probate petitioner and her father-in-law Sh. Sewa Singh.
Admittedly these documents were in the possession and custody of the
probate petitioner and were produced in Court by them. The possession
of original title documents with the probate petitioner is therefore a very
strong aspect to indicate the transfer of title by Sh. Sohan Singh,
FAO No.34/1994 Page 9 of 14
otherwise there is no reason why original documents of title of the
property would at all have been given by Sh. Sohan Singh to the probate
petitioner and her father-in-law Sh. Sewa Singh.
13. Learned counsel for the appellant very passionately urged
three main arguments:-
(i) The first argument was that consideration being the grant of
loan has not been proved on behalf of the probate petitioner and which
therefore takes away the very foundation of General Power of Attorney
and the Will of Sh. Sohan Singh.
(ii) The execution of the Will is shrouded in very suspicious
circumstances and therefore the same merited rejection, more so as the
natural heirs were disinherited.
(iii) The very fact that there is a time span of about two years
between execution of the Power of Attorney and the Will squarely casts a
shadow on the existence and the validity of the Will of the deceased Sh.
Sohan Singh.
In my opinion, the arguments as raised on behalf of the
appellants have no merit and are bound to be rejected. Once the power
of attorney is proved and exhibited on record and which Power of Attorney
contained extensive terms to completely deal with the subject property
including selling of the same and consequently received consideration,
therefore, the same is a very strong proof that a Power of Attorney being
FAO No.34/1994 Page 10 of 14
of this nature, and which power of attorney was never revoked by Sh.
Sohan Singh during his life time, was executed for consideration. After all
no person in his sound mind will execute a General Power of Attorney in
favour of a complete stranger giving him complete entitlement to deal
with the property including to sell the same. Thus, the argument that no
consideration has been proved to have been paid to late Sh. Sohan Singh
has no legs to stand upon. In fact, during the course of arguments, I put it
to the counsel for the appellants as to whether on behalf of the
appellants, documents were filed in the trial Court, including of the bank
accounts of Sh. Sohan Singh to show his financial position that he always
had sufficient monies and therefore there was no need for him to take
loans, however, counsel for the appellants admitted that no document to
show the liquidity or the financial capacity of the deceased Sh. Sohan
Singh was filed. What was however relied upon was that the deceased Sh.
Sohan Singh owned about 40-45 bighas of land in the village and
therefore it should be held that he had financial capacity and therefore he
would not have required any loans. In my opinion, owning of an
agricultural land automatically will not show the financial capacity of a
person inasmuch as financial capacity has more to do with the liquidity of
the person, and which liquidity has to be established by means of bank
accounts or similar proofs of financial capacity. Of course, I only need to
add that agricultural activity is not ordinarily such a profitable activity and
after all admittedly the deceased had a reasonable large family to
maintain consisting of besides himself, his wife, one son and two
FAO No.34/1994 Page 11 of 14
daughters. On balance of probabilities therefore I find that the deceased
would have in fact taken loan and which aspect is deposed to by, besides
Sh. Sewa Singh, also by an independent witnesses Sh. Rajender Kumar,
PW-5.
(iv) The argument that there was a gap of two years between the
execution of General Power of Attorney and the Will negates to the
existence of the Will, is an argument which lacks substance inasmuch as if
the respondent No.1 and Sh. Sewa Singh wanted to fabricate any Will,
then, there was no reason why it would not have been done simultaneous
to the execution of the General Power of Attorney on 3.12.1973. On the
contrary this gap goes to show the authenticity and validity of the Will
inasmuch as the deceased Sh. Sohan Singh remained honest and true
during his life time because he realized that a Will also had to be executed
inasmuch as the Power of Attorney would cease to be operative after his
life time. In any case, when taken with other circumstances and on the
balance of probabilities, this argument is not of such a nature so as to
overturn the detailed findings and conclusions of the Court below which
have held that power of attorney and the Will to have been validly
executed by the deceased Sh. Sohan Singh.
(v) The issue with regard to the suspicious circumstances and the
natural heirs being disinherited is really not an issue in the present type of
cases where the case is not a normal case with respect to a Will inasmuch
as the present case is a case of transfer of title in a property by virtue of
FAO No.34/1994 Page 12 of 14
not only the Will but also an earlier executed General Power of Attorney
on 3.12.1973. Merely because the deceased may not have told the
objector during his life time of execution of the Will or the General Power
of Attorney cannot mean that these documents were not executed, and in
any case, the objectors ought not to be believed because they are bound
to depose that the deceased never told them of the execution of this
documents whereas in fact the deceased could have told them, however,
since there is no proof of the same, the objectors have chosen to
conveniently deny the same.
14. A civil case is decided on balance of probabilities. The
balance of probabilities in the present case shows that the Power of
Attorney Ex.PW3/1 and the Will Ex.P-1 were duly executed by the
deceased Sh. Sohan Singh. The Power of Attorney is after all a registered
Power of Attorney, and more importantly, the original title documents of
the subject property are in the possession of the respondent no.1 and
which would not have been, if there was not to be any transfer of title in
the suit property. Merely because two views are possible, this court would
not interfere with one possible and plausible view which is taken by the
court below, unless such view causes grave injustice. In my opinion, in
fact, grave injustice will be caused not to the objectors/appellants but to
the respondent no.1 and her father-in-law Sh. Sewa Singh, if the
impugned judgment is set aside.
FAO No.34/1994 Page 13 of 14
15. In view of the above, there is no merit in the appeal, which is
therefore dismissed leaving the parties to bear their own costs. Trial court
record be sent back.
SEPTEMBER 06, 2011 VALMIKI J. MEHTA, J.
ib
FAO No.34/1994 Page 14 of 14
+ FAO No.34/1994
th
% 6 September, 2011
SHRI RAJ KUMAR SINGH & ANR. ...... Appellants
Through: Mr. G. Tushar Rao and Mr. Atanu
Mukherjee, Advocates.
VERSUS
MRS. JAGJIT CHAWLA & OTHERS ...... Respondents
Through: None.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this first appeal under Section 299 of the
Indian Succession Act, 1925, is to the impugned order of the probate court
dated 25.11.1993, which has granted probate of the Will of the deceased
Sh. Sohan Singh dated 3.1.1976.
2. Before proceeding further, I must state that the present case is not
one of the cases where there is a classical dispute with respect a Will
interse heirs of the deceased. In the city of New Delhi, before the
provision of Section 53-A of the Transfer of Property Act 1882, dealing
with the doctrine of part performance and incorporation of Article 23-A in
FAO No.34/1994 Page 1 of 14
the Stamp Act as applicable to Delhi requiring Stamp duty of 90% of the
value of an Agreement to Sell were amended by Act 48 of 2001, transfer
of title of an immovable property in Delhi was taking place by documents
being the Agreement to Sell (taking benefit of doctrine of part
performance under Section 53-A of the Transfer of Property Act 1882),
General Power of Attorney (on the basis of Section 202 of the Contract Act
1872, where a power of attorney given for consideration could not be
cancelled), Will (to operate after the death of the seller as the power of
attorney after death is not effective). The amendment which was brought
about to Section 53-A of the Transfer of Property Act, 1882 along with the
related provisions is The Registration and other Related Law (Amendment)
Act, 2001 [Act No. 48 of 2001].
3. I am stating these preliminary facts because in ordinary cases with
respect to dispute with regard to execution of Will, there arise issues with
respect to either suspicious circumstances surrounding the Will or why the
some of the natural heirs are disinherited or the propounder taking active
participation in making of the Will and so on, but these aspects would pale
into insignificance in the facts of the present case where basically the Will
has been executed in furtherance of the action for transferring of the
property being plot No.75 admeasuring 200 sq. yards in Block-C Jhilmil
Tahirpur Residential Scheme G.T Road, Railway Lines near I.T.I.Shahdara,
Delhi. (in short „the subject property‟). In fact, the subject Will Ex.P-1
FAO No.34/1994 Page 2 of 14
dated 3.1.1976 was preceded by a registered General Power of Attorney
(GPA) Ex.PW3/1 dated 3.12.1973 with respect to the subject property.
4. The facts of the case are that the respondent no.1, petitioner in the
probate petition filed a petition under Section 276 of the of the Indian
Succession Act, 1925 for grant of a probate in respect of the Will dated
3.1.1976 of the deceased Sh. Sohan Singh, who is stated to have died on
12.3.1976. The deceased was survived by his widow, one son and two
daughters and which persons objected to the claim of probate. The
respondent no.1 had pleaded that the deceased Sh. Sohan Singh had from
time to time taken different amounts of loans, including on the occasion of
the marriage of his daughter, and when the loan figure reached an
amount of Rs.12,000/-, the deceased Sh. Sohan Singh agreed to transfer
the subject property for adjusting the loan amount, and for which purpose,
he executed a registered General Power of Attorney dated 3.12.1973 in
favour of the probate petitioner. This General Power of Attorney was an
exhaustive General Power of Attorney not only to take every action with
respect to the property, but the said General Power of Attorney included
the power to even sell the property. The deceased Sh. Sohan Singh,
thereafter is stated to have executed the Will dated 3.1.1976 i.e. after
roughly about 2 years of execution of the General Power of Attorney dated
3.12.1973. Therefore, the basic case of the probate petitioner was that
the property has been disposed of as per the Will for consideration.
FAO No.34/1994 Page 3 of 14
5. The appellants contested the probate petition and alleged that the
Will was unnatural because there was no reason stated in the Will to
disinherit the natural heirs. It was further alleged that the deceased Sh.
Sohan Singh at no point of time, during his life time ever mentioned about
the execution of the Will. It was further alleged that the Will was a forged
and fabricated document and that the deceased Sh. Sohan Singh was in a
sound financial condition and hence there was no need to sell the
property and in fact no loans were taken.
6. The main issue therefore which was argued before the probate
Court, and which is also an issue argued before me, is that whether the
deceased Sh. Sohan Singh left behind a valid Will dated 3.1.1976.
7. Respondent No.1 before the trial Court led evidence of as many as
seven witnesses including of a handwriting expert. The objectors
examined four witnesses including their handwriting experts. The
witnesses PW2 and PW3 were the attesting witnesses to the Will. PW-4
deposed with respect to the loan being advanced of the total amount of
Rs.12,000/- to Sh. Sohan Singh by Sh. Sewa Singh (father-in-law of
probate petitioner) and which when demanded from Sh. Sohan Singh, he
had agreed to transfer the subject plot by execution of the Power of
Attorney Ex.PW3/1. He also deposed with regard to execution of the Will
deed Ex.P-1 in favour of the daughter-in-law/the probate
petitioner/respondent and also the fact that original title documents of the
property were handed over to the probate petitioner. PW-5 Sh. Rajender
FAO No.34/1994 Page 4 of 14
Kumar deposed that he knew Sh. Sohan Singh since the year 1967 and
that Sh. Sohan Singh used to take loans. He also deposed with respect to
the good health and sound disposing mind of the deceased Sh. Sohan
Singh. The probate petitioner deposed as PW-6 and she deposed that the
Will Ex.P-1 was executed because the deceased Sh. Sohan Singh had
taken loans from her father in law Sh. Sewa Singh, and for which purpose,
the power of attorney Ex.PW3/1 and the Will Ex.P-1 was executed. PW-7
was the handwriting expert Sh. M.K. Mehta who gave his opinion with
respect to the signatures of the deceased Sh. Sohan Singh on the Will
Ex.P1 by comparing the same with various admitted signatures.
8. RW-1 Sh. Rajkumar was the son of Sh. Sohan Singh and he deposed
with respect to his father not living in Delhi and that his father owned
agricultural land. He also deposed that neither the Will nor the general
power of attorney contained the signatures of his father Sh. Sohan Singh.
RW-2 Sh.Laik Ram was the father-in-law of the daughter of the deceased
who deposed that the deceased never told him about monetary dealing
with any person including Sh. Sewa Singh father-in-law of the probate
petitioner. RW-3 Sh. Rameshwar Dayal deposed that Sh. Sohan Singh had
about 40-45 bighas of land with a garden and tubewell in the village. RW-
4 Sh. D.P.Bhatia was the handwriting expert on behalf of the
appellants/objectors.
9. The Court below has duly examined the statement of each of the
witnesses alongwith their cross-examinations and the arguments of the
FAO No.34/1994 Page 5 of 14
respective counsel on the basis of such statements. While dealing with
the deposition of RW-1 Sh. Raj Kumar, the son of the deceased Sh. Sohan
Singh, the trial Court has observed the following in para 26 of the
judgment:-
“RW-1 Rajkumar son of the testator has stated
that his father never told him that he had executed
any will in favour of the petitioner. He has also
stated that the will Ex.P-1 is not signed by his father.
In cross-examination, he has admitted that letters
written by his father were available with him but he
has not produced them nor brought them with him
which could be used for comparison and has with-
held the same. In any case, he is an interested
witness and he is directly affected as the will is
against his interest. In that case, it would not be in
his interest to admit the signatures of his father on
the will Ex.P-1. He has even denied signatures of
his father on the power-of-attorney Ex.PW-3/1 which
RW-2 has not specifically denied and which has also
been proved by PW-4, whose testimony on this
aspect was not challenged. This power-of-attorney
is duly registered with the Sub-Registrar and it
carries presumption of due execution by its
executants Shri Sohan Singh. Denial by RW-1 of this
power of attorney Ex.PW-3/1 is thus not bona fide
which also makes his testimony regarding the will
Ex.P-1 not reliable. He has however admitted that
perpetual lease-deed Ex.PX is signed by his father
but he did not know and could not tell how the
petitioner came to be in possession of this lease
deed. This lease-deed was produced in court by the
petitioner on application made by the objector and it
cannot be said that he would not be aware how this
Ex.PX (lease deed) came in the possession of the
petitioner. In any case, there is no explanation from
the side of the objector as to how this document
was not in their possession and how it was with the
petitioner. In the circumstances, it has to be
inferred that he was aware that his father must have
given this document to the petitioner in pursuance
of some obligation incurred by him and this also
FAO No.34/1994 Page 6 of 14
suggests that he was also aware about the
will.”(Emphasis added)
10. On the reports of the handwriting experts, the Court below has
referred to the fact that evidence of handwriting expert can never be
conclusive and the same must be received with great caution, however no
hard and fast rule can be laid down and each case has to be decided as
per its own merits. While dealing with the respective reports of the
handwriting experts of both the parties, the Court below has referred to
the fact that the report prepared by the handwriting expert of the
appellants only relies upon the letter dated 15.10.1972 alleged to have
been written by the deceased Sh. Sohan Singh and authorship of which
letter was not proved on record, and more importantly, the disputed
signatures having not been compared with the admitted signatures
appearing on the perpetual lease deed Ex. PX which was signed at several
places by the deceased Sh. Sohan Singh. Accordingly, the Court below
preferred the report of handwriting expert of the respondent No.1 in
preference to the report of the handwriting expert of the appellants by
observing as under:-
“32. So, the question to be decided is, whether the
evidence of the expert examined on behalf of the objectors
is sufficient to discredit/disbelieve the direct testimony of
PW-2 and PW-3. Their expert Sh. D.P.Bhatia has appeared
as RW-4. He has given his expert opinion about the
disputed signatures on the will Ex.P-1 and the power-of-
attorney Ex.PW3/1 on the basis of a letter dated 15-10-
1972, alleged to have been written by Sohan Singh. The
authorities of that letter has not been proved on record.
Even RW-1 son of the testator has not proved it. The
disputed signatures on the will have not been compared
FAO No.34/1994 Page 7 of 14
with the signatures appearing on the perpetual lease-deed
Ex.PX, which has found above, is signed by the testator at
several places. By not doing so, this witness has avoided
to consider valid material, for no reasons. His evidence, in
the circumstances, cannot be said to be unbiased.
Accordingly to this expert evidence, the power-of-attorney
Ex.PW-3/1 is also not signed by the person who has signed
the letter dated 15-10-1972, which as held above, had
been executed by the testator.
33. On the other hand, Shri M.K.Mehta (PW-7) Handwriting
expert examined on behalf of the petitioner, has opined
that the will Ex.P-1, power-of-attorney Ex.PW-3/1 and the
perpetual lease deed Ex.PX are signed by the same person.
He had been cross-examined at great length, and during
arguments expert-evidence was not touched on behalf of
the objectors. He has given very sound reasons in his
report, and during his oral examination in support of his
opinion, and I do not find any infirmity or reason to discard
his opinion, or is prefer the opinion of RW-4 Mr. Bhatia
Objector‟s expert.”(underlining added).
11. The trial Court has also observed that the testimonies of the
attesting witnesses PW-2 and PW-3 are of independent, dis-interested,
satisfactory and trustworthy witnesses on the point of due execution and
attestation of the Will and therefore there was no reason to disbelieve
them. It was therefore held that the Will Ex.P1 was proved to have been
signed by deceased Sh. Sohan Singh in the presence of the attesting
witnesses who signed in the presence of the testator.
12. A resume of the above-said facts, findings and conclusions of the
trial Court as also other findings/discussions otherwise given in the
impugned judgment and decree, show that the following conclusions can
safely be arrived at:-
FAO No.34/1994 Page 8 of 14
(i) The deceased Sh. Sohan Singh executed the registered
General Power of Attorney Ex.PW3/1 in favour of Sh. Sewa Singh and
which was an exhaustive General Power of Attorney giving all powers
including to sell the property. This Power of Attorney being registered,
there is no reason to disbelieve the same and the contents of the same
show that exhaustive powers including to sell the property were given and
which could not be so if the title in the property was not meant to be
transferred. Further, this Power of Attorney admittedly was never revoked
during the life time of Sh. Sohan Singh.
(ii) The very fact that the Will Ex.P1 is executed after about two
years of the execution of the power of attorney Ex.PW3/1 is proof of the
fact that Sh. Sohan Singh remained honest and true in his life time and
after execution of the General Power of Attorney he also executed a Will
much later inasmuch as the power of attorney will not operate after his
death.
(iii) If there was not to be any transfer of title of the subject
property under the Power of Attorney and the Will, there was no reason
why the original documents of the title of the property would have been
delivered to the probate petitioner and her father-in-law Sh. Sewa Singh.
Admittedly these documents were in the possession and custody of the
probate petitioner and were produced in Court by them. The possession
of original title documents with the probate petitioner is therefore a very
strong aspect to indicate the transfer of title by Sh. Sohan Singh,
FAO No.34/1994 Page 9 of 14
otherwise there is no reason why original documents of title of the
property would at all have been given by Sh. Sohan Singh to the probate
petitioner and her father-in-law Sh. Sewa Singh.
13. Learned counsel for the appellant very passionately urged
three main arguments:-
(i) The first argument was that consideration being the grant of
loan has not been proved on behalf of the probate petitioner and which
therefore takes away the very foundation of General Power of Attorney
and the Will of Sh. Sohan Singh.
(ii) The execution of the Will is shrouded in very suspicious
circumstances and therefore the same merited rejection, more so as the
natural heirs were disinherited.
(iii) The very fact that there is a time span of about two years
between execution of the Power of Attorney and the Will squarely casts a
shadow on the existence and the validity of the Will of the deceased Sh.
Sohan Singh.
In my opinion, the arguments as raised on behalf of the
appellants have no merit and are bound to be rejected. Once the power
of attorney is proved and exhibited on record and which Power of Attorney
contained extensive terms to completely deal with the subject property
including selling of the same and consequently received consideration,
therefore, the same is a very strong proof that a Power of Attorney being
FAO No.34/1994 Page 10 of 14
of this nature, and which power of attorney was never revoked by Sh.
Sohan Singh during his life time, was executed for consideration. After all
no person in his sound mind will execute a General Power of Attorney in
favour of a complete stranger giving him complete entitlement to deal
with the property including to sell the same. Thus, the argument that no
consideration has been proved to have been paid to late Sh. Sohan Singh
has no legs to stand upon. In fact, during the course of arguments, I put it
to the counsel for the appellants as to whether on behalf of the
appellants, documents were filed in the trial Court, including of the bank
accounts of Sh. Sohan Singh to show his financial position that he always
had sufficient monies and therefore there was no need for him to take
loans, however, counsel for the appellants admitted that no document to
show the liquidity or the financial capacity of the deceased Sh. Sohan
Singh was filed. What was however relied upon was that the deceased Sh.
Sohan Singh owned about 40-45 bighas of land in the village and
therefore it should be held that he had financial capacity and therefore he
would not have required any loans. In my opinion, owning of an
agricultural land automatically will not show the financial capacity of a
person inasmuch as financial capacity has more to do with the liquidity of
the person, and which liquidity has to be established by means of bank
accounts or similar proofs of financial capacity. Of course, I only need to
add that agricultural activity is not ordinarily such a profitable activity and
after all admittedly the deceased had a reasonable large family to
maintain consisting of besides himself, his wife, one son and two
FAO No.34/1994 Page 11 of 14
daughters. On balance of probabilities therefore I find that the deceased
would have in fact taken loan and which aspect is deposed to by, besides
Sh. Sewa Singh, also by an independent witnesses Sh. Rajender Kumar,
PW-5.
(iv) The argument that there was a gap of two years between the
execution of General Power of Attorney and the Will negates to the
existence of the Will, is an argument which lacks substance inasmuch as if
the respondent No.1 and Sh. Sewa Singh wanted to fabricate any Will,
then, there was no reason why it would not have been done simultaneous
to the execution of the General Power of Attorney on 3.12.1973. On the
contrary this gap goes to show the authenticity and validity of the Will
inasmuch as the deceased Sh. Sohan Singh remained honest and true
during his life time because he realized that a Will also had to be executed
inasmuch as the Power of Attorney would cease to be operative after his
life time. In any case, when taken with other circumstances and on the
balance of probabilities, this argument is not of such a nature so as to
overturn the detailed findings and conclusions of the Court below which
have held that power of attorney and the Will to have been validly
executed by the deceased Sh. Sohan Singh.
(v) The issue with regard to the suspicious circumstances and the
natural heirs being disinherited is really not an issue in the present type of
cases where the case is not a normal case with respect to a Will inasmuch
as the present case is a case of transfer of title in a property by virtue of
FAO No.34/1994 Page 12 of 14
not only the Will but also an earlier executed General Power of Attorney
on 3.12.1973. Merely because the deceased may not have told the
objector during his life time of execution of the Will or the General Power
of Attorney cannot mean that these documents were not executed, and in
any case, the objectors ought not to be believed because they are bound
to depose that the deceased never told them of the execution of this
documents whereas in fact the deceased could have told them, however,
since there is no proof of the same, the objectors have chosen to
conveniently deny the same.
14. A civil case is decided on balance of probabilities. The
balance of probabilities in the present case shows that the Power of
Attorney Ex.PW3/1 and the Will Ex.P-1 were duly executed by the
deceased Sh. Sohan Singh. The Power of Attorney is after all a registered
Power of Attorney, and more importantly, the original title documents of
the subject property are in the possession of the respondent no.1 and
which would not have been, if there was not to be any transfer of title in
the suit property. Merely because two views are possible, this court would
not interfere with one possible and plausible view which is taken by the
court below, unless such view causes grave injustice. In my opinion, in
fact, grave injustice will be caused not to the objectors/appellants but to
the respondent no.1 and her father-in-law Sh. Sewa Singh, if the
impugned judgment is set aside.
FAO No.34/1994 Page 13 of 14
15. In view of the above, there is no merit in the appeal, which is
therefore dismissed leaving the parties to bear their own costs. Trial court
record be sent back.
SEPTEMBER 06, 2011 VALMIKI J. MEHTA, J.
ib
FAO No.34/1994 Page 14 of 14