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2007 DIGILAW 404 (DEL)

TARVINDER KAUR v. STATE

2007-02-26

J.M.MALIK

body2007
JUDGMENT J.M. Malik, J.-In this case, Surender Singh, respondent No.2 and his sisters Smt. Tarvinder Kaur and Smt. Parminder Kaur have locked horns over the Will allegedly executed by their mother Smt. Daya Kaur. Mahender Singh, another son of Smt. Daya Kaur was also arrayed as respondent No.3 in this case. At the initial stage, Mahender Singh had contested the Will, but subsequently, he threw in the towel and took the stance that the Will was valid and legal. 2. Adumbrated in brief, the facts of this case are these. Late Shri Manohar Singh was their father. He owned property No. A-17 (WZ-240), Hari Nagar, New Delhi. He died intestate on 17.12.1980 leaving behind him the above said four children besides Smt. Daya Kaur. All the sons and daughters relinquished their right, title or interest in respect of above said house in favour of their mother Smt. Daya Kaur vide registered Relinquishment Deed dated 27.3.1995. Consequently, Smt. Daya Kaur became the absolute owner of the above said house. On the same very day, she executed a registered Will in favour of respondent No.2 bequeathing the said property in his favour. She expired on 11.5.1995. Respondent No.2. therefore, filed petition for grant of probate of Will in his favour. 3. The appellants denied the execution of Relinquishment Deed by them as well as execution of the Will by the testatrix. They explained that after the death of their father, they jointly owned the case property to the extent of one-fifth share each. 4. 1 have heard Counsel for the appellants. He enumerated the following suspicious circumstances. Firstly, the testatrix used to affix signatures and the fact that she had thumb marked the Will is a highly suspicious circumstance. He pointed out that the Will was not executed by her. The second submission made by him was that two witnesses had attested the Will, from whom only one witness Shri Manoj Kumar Sharma. Advocate appeared as PW 5. PW 5 did not state that testatrix had a sound disposing mind at the time of execution of Will. He, thirdly, pleaded that the photographs of the testatrix pasted on Will and Deed of Relinquishment are different. He half-heartedly argued that these do not belong to the same person. Advocate appeared as PW 5. PW 5 did not state that testatrix had a sound disposing mind at the time of execution of Will. He, thirdly, pleaded that the photographs of the testatrix pasted on Will and Deed of Relinquishment are different. He half-heartedly argued that these do not belong to the same person. Lastly, he submitted that if the intention of the testatrix was to bequeath the case property on the same day, she should have disclosed this fact instantaneously in presence of all the parties. 5. It is apparent, that the appellants have raised a number of objections, merely for the sake of cavil. Before me, the learned Counsel for the appellants admitted that the deed of Relinquishment Ex. PW1/A, which is also thumb marked by Daya Kaur is genuine. Talvinder Kaur, appellant, has proved it. However, he picked up a dispute with Will Ex. PW 5/A. It is noteworthy that both these documents bear the thumb marks of the testatrix. Relinquishment Deed is a registered document, which is signed by both the appellants Smt. Tarvinder Kaur and Smt. Parminder Kaur. They were parties to this document executed in favour of Smt. Daya Kaur. Smt. Daya Kaur had put thumb mark in their presence. It does not lie in their mouths to challenge the thumb mark by objecting that she used to affix signatures and never thumb mark the documents. 6. Moreover, in case the appellants had any doubt about the thumb impression of testatrix on Ex. PW 5/A. they could have got it compared from a hand-writing expert with her admitted thumb impression on Relinquishment Deed Ex. PW 1/A. When this fact was brought to the notice of the learned Counsel for the appellants, he immediately conceded that the thumb mark belongs to Smt. Daya Kaur. 7. The judgment of Additional District Judge, while commenting on testimony of Surinder Singh. PW 1 well explains: "He admitted that his mother used to draw pension from the bank and she used to give receiving for the same. He volunteered to add that his mother had become incapable of making her signature. So with effect from 5.7.1994 on a request made by her, she was allowed to draw pension by putting her thumb mark only. Application to this effect was moved by him on her behalf. He volunteered to add that his mother had become incapable of making her signature. So with effect from 5.7.1994 on a request made by her, she was allowed to draw pension by putting her thumb mark only. Application to this effect was moved by him on her behalf. He denied the suggestion that his mother was not capable of moving and was not possessing sound disposing mind since January, 1995. He volunteered to add that she was unable to move after April, 1995 because she sustained a fracture on her lower limb." 8. The argument that the testatrix was not of sound disposing mind is devoid of force. The record shows that she was able to appear before the Registrar not on one occasion but on two or three occasions on the same very day. In case, she was able to put thumb impression on Relinquishment Deed, before the Registrar, then it cannot be said that she did not have sound disposing mind at the time she executed the Will, immediately thereafter. The Court will assume that she had sound disposing mind at the time of execution of all the three above said documents. She had the same disposing mind when Relinquishment Deed, in her favour, Will and Power of Attorney were executed. 9. It must be borne in mind that evidence adduced by the propounder of the Will is to be read as a whole and not in bits and pieces. Surender Singh PW1 testified that all the three documents were prepared simultaneously i.e. Relinquishment Deed, Will and Power of Attorney. He deposed that his mother was physically and mentally fit at the time of execution of those documents but she was suffering from high blood pressure. This witness withstood the test of cross-examination. This witness has an aura of dependability. The surrounding circumstances go a long way to invigorate his stance. It may also be mentioned here that Ashok Kumar, the other eye-witness died during the pendency of this case, therefore he could not be produced in the dock. 10. It stands proved that Daya Kaur had thumb marked the Will. Now I turn to the question of photographs. It is clear that the photo pasted on Will is that of a young woman and is without spectacles, but the photograph pasted on Relinquishment Deed is of an old woman who used spectacles at that time. 10. It stands proved that Daya Kaur had thumb marked the Will. Now I turn to the question of photographs. It is clear that the photo pasted on Will is that of a young woman and is without spectacles, but the photograph pasted on Relinquishment Deed is of an old woman who used spectacles at that time. I have thoroughly examined both the photographs. These appear to be of the same person. Darshan Kumar, PW 4, Defence Pension Disbursement Officer produced the pension record of Smt. Daya Kaur. He testified that her same photo appears there, as it appears on the Will. 11. It must be borne in mind that when a person who executes his/her Will does not want to tom tom about its execution. She wants to keep it a secret and it is generally done under the hat. The idea behind it is that her legal representatives should not know about it and be at loggerheads during her lifetime. It is clear that the Will was validly executed and registered. This is an indisputable fact that the mother of the appellants was in service and she must be aware of the documents which were executed by her on the same day. She was not an illiterate lady. 12. The appeal is without merit and same is dismissed in limine. Trial Court Record be sent back with a copy of this order forthwith. Appeal dismissed.