Full Judgment Text
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CASE NO.:
Appeal (civil) 2117 of 2001
PETITIONER:
Hazara Bradri & Others
RESPONDENT:
Lokesh Dutta Multani
DATE OF JUDGMENT: 16/11/2005
BENCH:
ASHOK BHAN & ALTAMAS KABIR
JUDGMENT:
J U D G M E N T
BHAN, J.
Defendant/Appellant herein is aggrieved by the
judgment of the Division Bench of the Delhi High
Court in RFA (OS) 21 of 1980 dated 17.10.2000
wherein the Division Bench while setting aside the
judgment and decree passed by the Single Judge
trying the suit on the original side has decreed
the suit filed by the plaintiff/respondent herein.
Sardar Sujan Singh, aged 77 years, a retired
Income tax Officer executed a will on 7.12.1960
declaring (a) that after his death his wife Smt.
Ram Kaur will be entitled to all his properties
movable and immovable of every kind and description
and further she will have full control and right
over the income from the immovable property; (b)
that Smt. Ram Kaur will not be entitled to sell,
mortgage, or dispose of by gift or will, any part
or whole of the immovable property of any kind left
by the testator; and (c) that after the death of
Smt. Ram Kaur all the properties, movable and
immovable, and sums due to Sardar Sujan Singh or
Smt. Ram Kaur or deposits at any place or with any
bank or office shall be the sole property of Lokesh
Datta Multani son of late Pt. Thakur Datta Multani
who treats the testator and his wife just like his
parents and whom they treat as their son and he has
been taking care of them for the last more than 10
years.
Sardar Sujan Singh died at Indore in the
Nursing Home of his nephew Prithipal Singh on
24.08.1963. Bhog and other ceremonies were
performed at Delhi by Smt. Ram Kaur, Prithipal
Singh and others.
Case of the plaintiff/respondent is that after
the death of Sardar Sujan Singh, Smt. Ram Kaur at
the instigation of some interested persons refused
to admit the will, although the will was signed and
attested by her. It led to his filing suit No. 92
of 1964 in the Court of Sub Judge, First Class, for
a declaration that Smt. Ram Kaur has only a life
interest in the property and the respondent is the
ultimate owner of the properties left by Sardar
Sujan Singh under his will dated 7.10.1960. That
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there was compromise in the said suit and Smt. Ram
Kaur admitted the respondent’s claim and decree
for declaration as prayed for in the suit was
passed. His further case is that a public notice
was got published in the Delhi Gazette of the
Government of India dated 02.07.1964 wherein it was
stated that Sardar Sujan Singh had left a will
dated 7.12.1960 and under that will the
plaintiff/respondent was the owner of the property
No. 251 Block F, New Rajinder Nagar, New Delhi and
further that he had been declared to be the sole
owner of the said property by a decree dated
25.04.1964 passed by a Court of competent
jurisdiction. That any one dealing with any
person for the sale, mortgage or otherwise transfer
of the said property in any way shall do so at his
own risk and costs. He further alleged that on
23.12.1996 Smt. Ram Kaur by a registered gift deed
gifted premises No. 251 Block F, New Rajinder
Nagar, New Delhi to the appellant No. 1 Hazara
Bradri which is a registered society and that led
to filing of the suit on 10.07.1967. It was prayed
that a declaration be given to the effect that the
gift made by Smt. Ram Kaur in respect of house No.
251 Block F, New Rajinder Nagar, New Delhi in
favour of appellant Nos. 1 and 3 is void and
ineffective as against the plaintiff on the death
of Smt. Ram Kaur.
Appellants contested the suit. It was denied
that Sardar Sujan Singh had made any will, they
pleaded that the will set up by the plaintiff was
false and fabricated. They further denied that
Sardar Sujan Singh and Smt. Ram Kaur ever treated
the plaintiff as their son or that they had any
affection for him. It was further pleaded that
even if the will is proved to have been duly
executed the restriction placed on the right of
Smt. Ram Kaur in the matter of disposal of the
property was not legal and binding. It was
contended that Smt. Ram Kaur had inherited the
property as the sole and absolute owner and there
was no restriction on her right to dispose of the
same. It was maintained by them that the gift was
valid, legal and binding.
Smt. Ram Kaur, who was arrayed as defendant No.
4, in her separate written statement stated that
Pandit Thakur Datta Multani was a friend of Sardar
Sujan Singh and as such they were on visiting terms
with each other. Pandit Thakur Datta Multani had
appointed Sardar Sujan Singh as an executor of his
will. She controverted the allegation that she
and Sardar Sujan Singh treated the plaintiff as
their son and he treated them like his parents. It
was pleaded that if the will is proved to have
been attested by her, her signatures must have been
obtained by the plaintiff by fraudulent and
deceitful means. It was further pleaded that the
plaintiff had by fraudulent means got the bank
accounts transferred in his name and that when she
came to know of that fact, she got the name of the
plaintiff removed from the account and she opened a
fresh account in her own name. It was further
stated that she was not aware of the earlier suit
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filed by the plaintiff and the declaration obtained
by him. According to her the plaintiff may have
obtained the said declaration in the suit by
fraudulent means. She denied to have signed any
compromise deed in the said suit.
On these pleadings the trial Court inter alia
framed issues regarding the due execution and
attestation of the will; whether the restriction
in the will that Smt. Ram Kaur did not have the
right to sell, mortgage or dispose of by gift any
part of the estate was void; as to whether in the
earlier suit instituted by the plaintiff against
Smt. Ram Kaur, she had admitted by way of
compromise that the plaintiff was the owner of
the property left by Sardar Sujan Singh and what is
its effect on the present suit; and whether the
gift made by Smt. Ram Kaur, defendant No. 4, in
favour of appellant was void and illegal. During
the pendency of the suit Smt. Ram Kaur died on
5.2.1978 and thereafter the plaintiff/respondent
amended the plaint and besides declaration claimed
possession of the house in dispute.
In order to prove the will respondent produced
the two attesting witnesses, namely, Shri Baldev
Raj Ajmani, PW 3 and Shri N.C. Sarkar, PW 7. The
will purports to bear the thumb impression and
signatures of Smt. Ram Kaur in Gurumukhi as an
attesting witness. He examined Shri Mohan Lal
Patney, who was the advocate of Smt. Ram Kaur in
the earlier suit as PW 2. He also examined Shri
H.L. Seth, a Sub-Officer in the National Grindlays
Bank Ltd. as PW 1 where Sardar Sujan Singh had an
account besides appearing himself as PW 9. He also
examined Shri A.S. Kapur, PW 8, a handwriting
expert who proved the signature of Sardar Sujan
Singh on the will with his admitted signature from
the Bank. He examined other witnesses also of
which we may not take note of at this stage. Smt.
Ram Kaur appeared as DW 1 as well as Shri M.K.
Mehta, DW 3, handwriting expert.
Learned Single Judge after hearing the counsel
for the parties by an elaborate judgment held that
due execution of the will was doubtful. Believing
the testimony of Shri Mehta, hand-writing expert
produced by the appellants and after examining the
disputed signatures of Sardar Sujan Singh and Smt.
Ram Kaur himself came to the conclusion that it was
doubtful as to whether the signatures appended on
the will were that of Sardar Sujan Singh and Smt.
Ram Kaur. It was held that it was doubtful that
Smt. Ram Kaur was aware of the suit instituted by
the plaintiff against her and of the decree passed
in the suit. That it seems that respondent had
obtained the decree by some dubious means.
Evidence of Shri Kapur hand-writing expert produced
by the respondent was disbelieved. Testimony of
the two attesting witnesses was also disbelieved.
Learned Single Judge did not elaborately discuss
the testimony of these witnesses. Their testimony
was discarded by observing that they did not know
the respondent intimately and they knew him
casually only. It was held that Smt. Ram Kaur had
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not put her signature on the will or the compromise
entered into between her and the respondent in the
previous suit. For the aforesaid reasons, the
learned Single Judge dismissed the suit leaving the
parties to bear their own costs.
The Division Bench in appeal reversed the
findings of the learned Single Judge and held that
no fault could be found with the testimony of the
two attesting witnesses who were trustworthy. That
their testimony had been discarded by the learned
Single Judge without recording any reasons
whatsoever. The finding recorded by the learned
Single Judge regarding due execution of the will or
that Sardar Sujan Singh had not put his signature
was also set aside. The testimony of Smt. Ram Kaur
was also disbelieved. It was held that the will
was duly executed by Sardar Sujan Singh who had
treated the respondent like his son and that the
respondent had been taking care of Sardar Sujan
Singh and Smt. Ram Kaur during their old age. It
was held that Sardar Sujan Singh and Pt. Thakur
Datta Multani were very close friends and the
latter had appointed Sardar Sujan Singh as the
executor of his will. The suit filed by the
plaintiff/respondent was accordingly decreed.
After hearing learned counsel appearing for the
parties, going through the judgments of the
Division Bench as well as that of the learned
Single Judge and the evidence all over again we are
in agreement with the view taken by the Division
Bench. The Division Bench has rightly set aside
the judgment of the learned Single Judge and in
decreeing the suit filed by the
plaintiff/respondent.
The testimony of Ajmani- PW 3, and Sarkar-PW 7,
the two attesting witnesses is consistent, natural
and truthful. Intensive cross-examination has
failed to bring out any material contradiction in
their testimony. Learned Single Judge did not deal
with the testimony about the actual attestation of
the Will on 7.12.1960 but has disbelieved the
attestation on collateral grounds such as (a) as to
why Ajmani \026 PW 3 and Sarkar \026 PW 7 were chosen as
attesting witness; (b) it was doubtful whether the
Sardar Sujan Singh who had sustained a fracture in
his leg was in a position to go to the houses of
Ajmani and Sarkar to call them; (c) since the
plaintiff had been called by Sardar Sujan Singh on
phone to come to the house in the evening of
7.12.1960 he would have as well asked the plaintiff
to call Ajmani and Sarkar rather than going to
their houses to call them himself; (d) signatures
of Ram Kumar and Sardar Sujan Singh on one hand and
those of attesting witnesses on the other are in
different inks. These are hardly any grounds to
discard the testimony of PW 3 and PW 7. Ajmani \026
PW 3 came into contact with Sardar Sujan Singh as
they often used to meet at Ramkrishna Mission.
Similarly, Sarkar - PW 7 being a Government servant
was in touch with Sardar Sujan Singh. The
testimony of these two witnesses cannot be
disbelieved only on the ground that it was doubtful
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that Sardar Sujan Singh because of the fracture in
his leg could have gone to their houses to call
them. The aforesaid finding, in our view, is
unsustainable particularly when it has not been
established as to during what period of the year
1960 Sardar Sujan Singh had suffered the fracture
in his leg. Learned Single Judge merely estimated
the fracture to be in the year 1960. The will was
executed in December, 1960. In the absence of any
evidence that in which month did Sardar Sujan Singh
had suffered the fracture it is not possible for us
to conclude that Sardar Sujan Singh was not in a
position to go to the houses of these two witnesses
to call them. Learned Single Judge took the view
that signatures of Smt. Ram Kaur and those of
Sardar Sujan Singh are in the same ink whereas the
signatures of the other two attesting witnesses are
in different ink. Will cannot be disbelieved
only because the testator had used a different pen
than the pen used by the attesting witnesses.
Learned Single Judge has discarded the will on
the ground that the same was surrounded by
suspicious circumstances. The Division Bench
after an elaborate discussion has discarded all the
suspicious circumstances. The Division Bench came
to the conclusion that the will was natural and was
executed by Sardar Sujan Singh out of love and
affection for respondent whom he treated like his
son. It was further held that he did not deprive
his wife of the property. He left the property to
his wife for her life time without any power to
alienate the same in any manner and after her death
the property was to go to the respondent as
absolute owner. Smt. Ram Kaur had attested the
will. It was found that Pt. Thakur Datta Multani
father of the respondent was a very close friend of
Sardar Sujan Singh which was evident from the fact
that he had appointed him as the executant of his
will. That Sardar Sujan Singh had executed the
will out of his own volition in a healthy state of
mind and had appended his signature on each page of
the will. Simply because he had signed some of the
pages twice was not a good ground to hold that the
will was suspicious.
We agree with the view taken by the Division
Bench and need not elaborate it again. Learned
counsel for the appellants could not persuade us to
take a view other than the view taken by the
Division Bench. The finding recorded by the
Division Bench that the will was not surrounded by
suspicious circumstances is sustainable. Moreover,
this is a finding of fact which does not call for
any interference.
We are also inclined to agree with the view
taken by the Division Bench that Sardar Sujan Singh
had executed the will in favour of the respondent
as he was the son of Pt. Thakur Datta Multani a
close friend of his and that he had been treating
the respondent as his son and the respondent had
also looked after Sardar Sujan Singh and Smt. Ram
Kaur in their old age and illness. Smt. Ram Kaur
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had also attested the will. She had also entered
into a compromise with the respondent in the
earlier suit and admitted the due execution of the
will in favour of the respondent. It seems that
because of the change of heart she denied the
execution of the will and the compromise arrived at
by her in the earlier suit and took the stand that
her signature/thumb impression on the will may have
taken by fraudulent means. For the same reason she
denied her entering into a compromise in the
earlier suit.
For the reasons stated above, we do not find
any merit in this appeal and dismiss the same with
no orders as to costs.