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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.