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2008 DIGILAW 293 (DEL)

CAPT. (RETD. ) O. P. SHARMA v. KAMLA SHARMA

2008-03-14

A.K.SIKRI, ARUNA SURESH

body2008
JUDGMENT Aruna Suresh, J .-In the present appeal, the appellants have assailed the judgment and decree passed by the learned Single Judge of this Court dated 8th December, 1999 in Suit No. 2548 of 1992 whereby the suit of the appellants for possession in respect of Second Floor /Barsati Room of premises No. B-142-143, Amar Colony, Lajpat Nagar, New Delhi and mesne profits as claimed against the respondents was dismissed. 2. The undisputed facts before us are that Late Shri Parmanand Sharma, father of the appellants and Shri Anand Swaroop Sharma predecessor-in-interest of the defendants / respondents was the owner of Plot No. B-142, Amar Colony, Lajpat Nagar, New Delhi being the allottee/ owner of the said plot by the Ministry of Rehabilitation, Government of India. Late Shri Parmanand Sharma purchased Plot No. B-143, Amar Colony, Lajpat Nagar, New Delhi measuring over 100 sq. yards by way of a registered Sale Deed dated 11.12.1962 (Ex. OW 2/1) from one Shri Basant Lal Taneja. Late Shri Parmanand Sharma built two floors and a Barasati floor on the said two plots in 1964-65. Late Shri Parmanand Sharma along with his family members started residing on the ground floor of the house whereas first floor and Barsati floor were let out to various tenants. Shri Anand Swaroop Sharma son of Shri Parmanand Sharma and employed in the Collectorate of Central Excise and Customs, Delhi was allotted a plot of land bearing No. B-136, Amar Colony, Lajpat Nagar, New Delhi by the Ministry of Rehabilitation at the same time when Late Shri Parmanand Sharma was allotted Plot No. B-142, Amar Colony, Lajpat Nagar. Shri Anand Swaroop Sharma died in a road accident on 1st August, 1972. Thereafter, defendant/respondent Smt. Kamla Sharma, his wife and three children were brought by Late Shri Parmanand Sharma to his house and they also started living with him on the ground floor of the said property. With the passage of time, the present appellants also got married and due to increase in the need for accommodation on the ground floor Smt. Kamla Sharma (died during the pendency of the case) and her children, namely, Sunil Kumar, Anil Kumar and Ravi Kumar were shifted to the Barsati floor of the said property. Ravi Kumar Sharma also expired during the pendency of the suit in August 26, 1994. Ravi Kumar Sharma also expired during the pendency of the suit in August 26, 1994. His wife and minor child being his legal representatives (LRs) were added as defendants/respondents in the memo of parties. Shri Anand Swaroop Sharma was a member of the co-operative society and on his death Plot No. 38, Priya Enclave was allotted to Smt. Kamla Sharma by the society. The said plot has been constructed by the defendants/respondents in the year 1988-89. Shri Sunil Kumar Sharma, respondent No.2 was given appointment in the Collectorate of Central Excise and Customs Delhi on compassionate ground on the death of his father Late Shri Anand Swaroop Sharma. Shri Sunil Kumar, respondent No.2 was allotted Government accommodation at L-II/125-A, Kalkaji, New Delhi in the year 1989. 3. The appellants have claimed the right and title in the suit property presently in possession of the respondents on the basis of a Will dated 22nd May, 1984 executed by Late Shri Parmanand Sharma and duly registered with the Sub-registrar whereby Late Shri Parmanand Sharma excluded the respondents from inheritance of his various properties including the property in dispute. Late Shri Parmanand Sharma died on 24th July, 1985 leaving his last Will and testament dated 22.5.1984. On the basis of the said Will the appellants applied to the office of L&DO, Nirman Bhawan for substitution of their names with regard to the lease hold rights in respect of the property No. B-142/143, Amar Colony, Lajpat Nagar, Delhi. All the other legal heirs of deceased Late Shri Parmanand Sharma gave their no objections to the mutation of the property in the names of the appellants except the respondents. The respondents filed two separate suits, one for declaring the Will dated 22.5.1984 as forged and fabricated document and was null and void, etc. and the other suit for permanent injunction for restraining the appellants from dispossessing them from the suit property i.e. the second floor in their possession. The said two suits are pending adjudication. Hence, the present suit filed by the appellants seeking possession of the suit property and mesne profits for use and occupation. 4. and the other suit for permanent injunction for restraining the appellants from dispossessing them from the suit property i.e. the second floor in their possession. The said two suits are pending adjudication. Hence, the present suit filed by the appellants seeking possession of the suit property and mesne profits for use and occupation. 4. Respondents have contested the present suit on various grounds contending inter alia that the alleged Will is forged and fabricated document and Late Shri Parmanand Sharma had not executed any Will and that they have challenged the mutation of the property in the name of the present appellants and have filed a suit for cancellation of the said mutation carried out on the record which is pending adjudication. The respondents further submitted that Late Shri Parmanand Sharma had been assuring Smt. Kamla Sharma widow of Late Shri Anand Swaroop Sharma and had expressed his intention to alienate the suit property in favour of the legal heirs of late Shri Anand Swaroop Sharma by way of a gift with a view to avoid any dispute in future which might arise after his death and that the respondents are in possession of the suit property in their own right as legal heirs of deceased Late Shri Parmanand Sharma and the suit of the appellant therefore being without merit is liable to be dismissed. 5. The appellants filed their replication to the Written Statement controverting the averments of the respondent as raised in the Written Statement. 6. On the pleadings of the parties, learned Single Judge was pleased to frame the following issued on 28th July, 1984: "(1) Whether the Will dated 22.5.1984 was duly executed by Late Shri Parmanand Sharma? -OPP (2) Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? -OPD (3) Whether the plaintiff is entitled to mesne profits? If so, what amount? -OPP (4) Relief, if any." 7. The learned Single Judge was pleased to decide issue No.2 against the respondents as no evidence was led on the suit issue. 8. While deciding issue No.1 against the appellants, the learned Single Judge observed that: (1) Late Shri Anand Swaroop Sharma had plot No. 38, Priya Enclave, Delhi allotted in his name before his death but the house was built in the year 1988-89 after the death of Late Shri Parmanand Sharma. 8. While deciding issue No.1 against the appellants, the learned Single Judge observed that: (1) Late Shri Anand Swaroop Sharma had plot No. 38, Priya Enclave, Delhi allotted in his name before his death but the house was built in the year 1988-89 after the death of Late Shri Parmanand Sharma. Late Shri Parmanand Sharma had no illwill nor any complaint against any of the respondents including widow of Late Shri Anand Swaroop Sharma and at the time of death of Late Shri Parmanand Sharma, the family of deceased Anand Swaroop Sharma had no house to live in except the one allotted from employment of respondent Shri Sunil Sharma. (2) The most unusual circumstance which had remained unexplained is the examination of Shri Pran Nath Sharma, the attesting witness to the Will who was not known to Late Shri a Parmanand Sharma from before and generally no one would invite a stranger or a foe to witness a document executed by the deceased. (3) The perception about the age of the deceased had varied between 10-18 years in the testimony of the attesting witnesses. (4) The deceased/executor of the Will being father-in-law was considerate enough to accommodate his widow daughter-inla wand her children and there was no reason for him to throw them on road especially when they had no house to live in till his death. (5) The deceased besides having property No. B-142/143, Amar Colony, Lajpat Nagar, New Delhi also owned an industrial plot/land bearing D-208 at Noida and he was running business in the name M/ s. Sharma Printers, he had joint bank accounts in State Bank of India and Canara Bank with Prem Prakash Sharma. He also had the liability of marriage of his daughter Neena. But by virtue of this Will, the executor of the Will had transferred his industrial land No. D-208, Noida measuring 170 sq. yards to Shri Prem Prakash Sharma appellant and he also transferred his running business of M/ s. Sharma Printers to Shri Prem Prakash Sharma only, whereas, duty to marry Neena Sharma had been cast on both the appellants which appeared to be totally inconsistent with the conduct of the deceased. (6) On the basis of the above said suspicious circumstance, the learned Single Judge concluded that the Will neither appeared to be fair to the children of Smt. Kamla Sharma nor to Shri Om Prakash Sharma. 9. (6) On the basis of the above said suspicious circumstance, the learned Single Judge concluded that the Will neither appeared to be fair to the children of Smt. Kamla Sharma nor to Shri Om Prakash Sharma. 9. The appellants have assailed these observations of the learned Single Judge in the present appeal. 10. Mr. V.M. Issar, learned Counsel for the appellants have submitted that the defence of the respondents raised in the written statement that Will is forged and fabricated document has not even been mentioned and considered in the judgment and the respondents have changed their plea that Will is a forged and fabricated document in evidence when they accepted that the Will was signed by Late Shri Parmanand Sharma but deposed that the signatures of Late Shri Parmanand Sharma were obtained on the Will by exercising undue influence and coercion. Late Shri Parmanand Sharma died after about 14 months of the execution of the Will. He was mentally and physically hale and hearty. The Will was registered in the presence of the witnesses. It is proved in evidence that the Will was signed by Late Shri Parmanand Sharma in the presence of witnesses PW 1 and PW 2 and the witnesses signed in his presence and in the presence of each other as is required to be proved under Section 63 of the Evidence Act. The witnesses have also proved the registration of the Will as they had signed the Will in the presence of the Sub-Registrar in his office. The daughters of Late Shri Parmanand Sharma had also given no objection and had accepted the Will at the time of mutation of the property in question in favour of the appellants. Therefore, it is urged that the Will is proved and the suspicious circumstances explained by the learned Single Judge in the impugned judgment are not even pleaded by the respondents in the written statement and therefore the judgments suffers from various infirmities and has to be set aside. 11. Mr. Pramod Kumar Ahuja, learned Counsel for the respondents has submitted that Late Shri Parmanand Sharma had died in the year 1985 and the suit was filed in 1992. No steps were taken by the appellants for about six years. 11. Mr. Pramod Kumar Ahuja, learned Counsel for the respondents has submitted that Late Shri Parmanand Sharma had died in the year 1985 and the suit was filed in 1992. No steps were taken by the appellants for about six years. Shri Anand Swaroop Sharma died in a road accident and at the time of death of Late Shri Parmanand Sharma, the respondents had no place to live in, the witness No.2 Shri Pran Nath Sharma for the appellants had come to the Court at the instance of PW 1 P.P. Sethi and was unknown to the executor of the Will. He further submitted that Late Shri Parmanand Sharma had cordial relationship with the respondents who had been living with him since after the death of Shri Anand Swaroop Sharma and therefore here was no reason for Late Shri Parmanand Sharma to deprive the respondent from his properties. It is emphasised by the learned Counsel for the respondents that the appellants never applied for probate of the Will. Therefore, the learned Single Judge has rightly held that due to suspicious circumstances the Will in question could not be accepted as having been executed by Late Shri Parmanand Sharma and the appeal deserves dismissal. 12. What can be construed as suspicious circumstances for considering the validity of execution of a Will have been laid down in catena of judgments by the Apex Court as well as by this Court. 13. As far back as in 1959 in H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors., AIR 1959 SC 443 , the principles guiding the Courts for consideration of suspicious circumstances of a Will in question were discussed and they still stand the test of the day even today. It was observed: (20) There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. It was observed: (20) There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounders case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testators mind may appear to be very feeble and debilitaed; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of relevant circumstances or, the Will may otherwise indicate that the said dispositions may not be the result of the testators free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious circustances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free Will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. It was further observed: (21) Apart from the suspicious circumstances to which we have just referred in some cases, the Wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the Wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. If it is shown that the propounder has taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with Wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to Wills; but any objection to the use of the word conscience in this context would, in our opinion be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. 14. In Smt. lndu Bala Bose & Ors. v. Manindra Chandra Bose & Ors., AIR 1982 SC 133 , what can be suspicious circumstances for proof of Will have been laid down for consideration, which are as follows: "7. This Court has held that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Successions Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the Court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. Where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the Court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testators mind, the disposition made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testators mind was not free. In such a case the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances, the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations." 15. Learned Counsel for the respondents had referred to. Niranjan Umeshchandra Joshi v. Mridula Joshi Rao & Ors., I (2007) CLT 159 (SC)=I (2007) SLT 266, to say what can be the suspicious circumstances for consideration of a Will in question. Para 33 of this judgment reads as follows: "33. There are several circumstances which would have been held to be described by this Court as suspicious circumstances- (i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will; (ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) The propounder himself takes prominent part in the execution of Will which confers on him substantial benefit." In this case also H. Venkatachala Iyengars case (supra), has been referred to and followed. 16. What are suspicious circumstances to rebut the proof of the execution of a Will differ from facts of each case and they can be universally followed in every case where the Will is under challenge. 17. 16. What are suspicious circumstances to rebut the proof of the execution of a Will differ from facts of each case and they can be universally followed in every case where the Will is under challenge. 17. Thus, while considering the suspicious circumstances, if existed, to discard the Will, the Court has to see that the proof of execution of the Will is directly satisfied in terms of Section 63 of the Indian Succession Act, 1925 and Sections 65 and 68 of the Indian Evidence Act. Compliance of statutory requirements though itself may not be sufficient but they do postulate or propound in favour of the execution of the Will by a testator. 18. Section 63 of the Indian Succession Act, 1925 reads as follows: "63. Execution of unprivileged Wills- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules- (a) The testator shall sign or shall affix his mar k to the Will, or it shall be signed by some other person in his presence and by his direction; (b) The signature-or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will; (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." 19. The party propounding the Will or otherwise making a claim under a Will and seeking proof of a Will has to keep in mind, the above said statutory provision as they govern the proof of a document. The party propounding the Will or otherwise making a claim under a Will and seeking proof of a Will has to keep in mind, the above said statutory provision as they govern the proof of a document. The relevant observations of the Court made in Niral1jan UmesT1chmzdra Joshis case (supra) laying down the law for proof of Will were reproduced in Benga Behera & Anr. v. Braja Kishore Nanda & Ors., VI (2007) SLT 252=III (2007) CLT 65 (SC)=2007 VII AD (SC) 216, which reads as follows: "Section 63 of the Indian Succession Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the Court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Succession Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestand on the part of the attesting witness, meaning thereby, he must intend to attest the extrinsic evidence on this point is receivable. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator [See Madhukar D. Shende v. Tamhai Shedage, I (2002) SLT 137=(2002) 2 SCC 8, and Sridevi & Ors. v. Jayaraja Shetty & Ors., II (2005) SLT 38=(2005) 8 SCC 784]. Subject to above, proof a Will does not ordinarily differ from that of proving any other document." Noticing B. Venkatamuni (supra), it was observed: "The proof of a Will is required not as a ground of reading the document but to afford the judge reasonable assurance of it as being what it purports to be. We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicious circumstances alone may not be sufficient. The Court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredibility is demanded from the Judge even when there exist circumstances of grave suspicion [See Venkatac1zala Iyengar (supra)]." 20. Section 68 of the Indian Evidence Act relates to proof of execution of document required by law to be attested. Section 68 of the Indian Evidence Act, 1872 reads as under: "68. Proof of execution of document required by law to be attested.-If a document is required by law to be attested, it shall not be used as evidence until one attesting witness has been called for the purpose of proving its execution, if there by an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. 21. 21. Keeping in mind the above said proposition of law regarding the proof of Will, we shall proceed to consider the submissions of the learned Counsel for the parties. One of the suspicious circumstances as indicated by the learned Counsel for the respondents is that though the Will was allegedly executed in the year 1984 but the appellants remained silent for about six years and no relief was claimed by them on the basis of the alleged Will. It is also alleged that appellants have not obtained any probate for the said Will. 22. As regards probate of a Will, it is settled law that in Delhi to enforce a Will probate is not required. Section 213 read with Section 57 of Indian Succession Act makes it clear that where the parties to the Will are Hindus or the properties in dispute do not fall in the area falling under Sections 57(a) and 57(b), Sub-section (2) of Section 213 of the Act applies and Sub-section (1) has no application. Therefore, as a consequence, a probate Will not be required to be obtained by a Hindu in respect of a Will made outside those territories or regarding the immovable properties situated outside those territories [Reference is made to Clarence Pais & Ors., etc. v. Union of India, II (2001) SLT 263= AIR 2001 SC 1151 ]. 23. In Santosh Kakkar & Ors. v. Ram Prasad & Ors., 71 (1988) DLT 147, while relying on Arjan Das v. Madan Lal, 6 (1970) DLT 260, it was held that probate or a letter of administration is not required for basing claim on the basis of an unprobated Will by defendant No. 1. 24. In Mrs. Winifred Nora Theophilus v. Mr. Lila Deane & Ors., AIR 2002 Delhi 6, while interpreting the provision of Section 213 read with Section 57 of the Indian Succession Act, this Court was pleased to observe as follows: "On interpretation of Section 213 read with Sections 57(a) and 57(b), the Courts have opined that where the Will is made by Hindu, Buddhist, Sikh and Jain and were subject to the Lt. Governor of Bengal or within the local limits of ordinary original civil jurisdiction of High Courts of Judicature at Madras and Bombay or even made outside but relating to immovable property within the aforesaid territories the embargo contained in Section 213 shall apply. Governor of Bengal or within the local limits of ordinary original civil jurisdiction of High Courts of Judicature at Madras and Bombay or even made outside but relating to immovable property within the aforesaid territories the embargo contained in Section 213 shall apply. From this it stands concluded that if Will is made by Hindu, Buddhist, Sikh or Jain outside Bengal, Madras or Bombay then embargo, contained in Section 213 shall not apply. This is what the various judgments cited by the learned Counsel of the defendants decide. Therefore there is no problem in arriving at the conclusion that if the Will is made in Delhi relating to immovable property in Delhi by Hindu, Buddhist, Sikh or Jain, no probate is required." 25. Reference is also made to Murlidhar Dua & Ors. v. Shashi Mohan, 68 (1997) DL T 284. 26. Under these circumstances, the submission of the learned Counsel for the respondents that the appellants have not obtained any probate of the Will and therefore the impugned Will cannot be enforced, has no merit. 27. The appellants have given a plausible reason as to why there was delay in filing the present suit for possession against the respondents. It is not disputed that Late Shn Anand Swaroop Sharma, the predecessor-in-interest of the present respondents was allotted a Plot No. B-l36, Amar Colony, Lajpat Nagar, New Delhi by the Government of India at the same time when Late Shri Parmanand Sharma was allotted Plot No. B-142, Amar Colony, Lajpat Nagar. However, this plot was sold by Shri Anand Swaroop Sharma and subsequently he became a member of the co-operative society comprising employees of Central Excise and Customs Delhi and after his death on 1st August, 1972, the legal heirs of Shri Anand Swaroop Sharma were allotted plot. No. 38, Priya Enclave, New Delhi measuring about 160 sq. mts. The respondents were to construct a house on the said plot and as per the evidence on record, there was understanding that respondents would vacate the second floor of the property in question after constructing on plot No. 38, Priya Enclave. The respondents constructed the house on the said plot in the year 1988-89 but they led to vacate the second floor of the property in question despite the understanding. Therefore, the appellants did not take any action against respondents with a hope that they would vacate the suit property as agreed. The respondents constructed the house on the said plot in the year 1988-89 but they led to vacate the second floor of the property in question despite the understanding. Therefore, the appellants did not take any action against respondents with a hope that they would vacate the suit property as agreed. In Khazan Singh v. State, etc., 45 (1991) DLT 352=ILR (1992) I Del. 484, where the petitioner had taken three years time in filing probate proceedings, it was considered that the delay was not of much consequence. 28. PW 3 in his examination-in-chief has deposed that he recovered the Will from the documents of his father lying in an almirah on the ground floor and was not aware that his father late Shri Parmanand Sharma had executed the Will Ex. PW 1/1. After tracing out the Will, the appellants applied for mutation of property No. B-4/142, Amar Colony, Lajpat Nagar, New Delhi in their name and the property was finally mutated in their names vide letter dated 29th October, 1992 with a condition that the lessees would not part with the property during the pendency of the suit. It may be pointed out that the respondents and their predecessor-in-interest had filed a suit for permanent injunction against the present appellants and sub-equently a suit for declaration for declaring Will Ex. PW 1/1 as null and void. Both the said suits are pending adjudication. It seems that litigation started inter se the parties only when the appellants applied for mutation of the property. All the other legal heirs (daughters of the executor) gave no objection certificate in favour of the appellants but the respondents refused. Simply because the Will was not disclosed to the respondents for about six years and they came to know of the Will only when appellants asked them to give no objection certificate for mutation of the impugned property in their names to which they refused, ipso facto does not create any suspicious circumstances so as to dispute the execution of the Will by Late Shri Parman and Sharma. 29. Will Ex. PW 1/1 was executed on 22nd May, 1984 and it was got duly registered by the executor. The testator was alive for about 14 months after the execution of the registered Will and he died on 24.7.1985. It is not the case of the parties that executor suffered from any mental or physical ailment. 29. Will Ex. PW 1/1 was executed on 22nd May, 1984 and it was got duly registered by the executor. The testator was alive for about 14 months after the execution of the registered Will and he died on 24.7.1985. It is not the case of the parties that executor suffered from any mental or physical ailment. The respondents have not pleaded in their written statement that Late Shri Parmanand Sharma suffered from any mental infirmity and was not of sound and disposing mind at the time of the execution of the impugned Will. A half-hearted attempt has been made on the part of the respondents during the cross-examination of PW 3, Shri O.P. Sharma that the testator had suffered a fracture in his leg. There is no oral or documentary evidence on the record to prove that Late Shri Parmanand Sharma had suffered a fracture in his leg and if so when. Even if it is deemed that he suffered fracture in his leg, it does not in any manner indicate that he was not mentally fit and of sound mind at the time of execution of the Will. The mental as well as physical condition of the executor of the Will was sound and he was hale and hearty and he executed the Will voluntarily with full disposing mind. 30. While considering the submission of the learned Counsel for the respondents even the learned Single Judge came to the conclusion that Late Shri Parmanand Sharma was of sound disposing mind when he executed the Will. Therefore, the respondents have failed to convince the Court that there existed suspicious circumstance regarding the physical as well as mental health of the executor at the time of the execution of the Will. 31. The respondents have disputed the execution of the Will and have alleged that it is a forged and fabricated document and does not bear the signatures of Late Shri Parmanand Sharma. Though respondents sought time for the Court to examine handwriting expert in support of their submission but they did not examine any handwriting expert to dislodge the claim of the appellants that the Will was duly executed by Late Shri Parmanand Sharma and the Will in question was signed by him. 32. Though respondents sought time for the Court to examine handwriting expert in support of their submission but they did not examine any handwriting expert to dislodge the claim of the appellants that the Will was duly executed by Late Shri Parmanand Sharma and the Will in question was signed by him. 32. In her cross-examination DW 1 Smt. Kamla Sharma (since deceased) wife of Late Shri Anand Swaroop Sharma (son of executor of the Will) is absolutely reticent to the fact that Will Ex. PW 1/1 did not bear the signature of Late Shri Parmanand Sharma, though in the cross-examination she has tried to state that to her knowledge Late Shri Parmanand Sharma had never signed and executed any Will in respect of his property. 33. Same is the reply of the DW 2 Sunil Sharma in his cross-examination. However, in the cross-examination DW 2 deposed that in his opinion the signatures at point A on the Will were not the signature of Late Shri Parmanand Sharma but he admitted the signature of Late Shri Parmanand Sharma at point A on the Sale Deed Ex. OW 2/1. Therefore, he could not specifically admit or deny the signatures of Late Shri Parmanand Sharma on the impugned Will Ex. PW 1/1. 34. The appellants have examined both the attesting witnesses to the Will. PW 1 Shri P.P. Sethi and PW 2 Shri Pran Nath Sharma. Shri P.P. Sethi was known to the executor and in clear words has deposed that he knew Shri P.N. Sharma, the executor and the parties in suit for number of years. Shri P.N. Sharma signed the Will in his presence and he signed the impugned Will at point B in the presence of Shri P.N. Sharma. He also testified that PW2 Pran Nath Sharma also signed the Will in the presence of P.N. Sharma and in his presence. They signed in the presence of each other. PW 1 and PW 2 were also the witnesses to the registration of the Will Ex. PW 1/1. He has proved his signatures as well as signatures of Shri Pran Nath Sharma and of deceased P.N. Sharma, which were put before the Registrar in the presence of each other. 35. They signed in the presence of each other. PW 1 and PW 2 were also the witnesses to the registration of the Will Ex. PW 1/1. He has proved his signatures as well as signatures of Shri Pran Nath Sharma and of deceased P.N. Sharma, which were put before the Registrar in the presence of each other. 35. Learned Counsel for the respondents had submitted that PW 2 Shri Pran Nath Sharma was not known to the executor of the Will from before but was known to PW Shri P.P. Sethi therefore his statement becomes suspicious. The learned Single Judge accepting this argument of the learned Counsel for the respondents held that this was unusual circumstance which remained unexplained by the witnesses and therefore was a strong suspicious circumstance against the genuineness of the Will, though the learned Single Judge did observe that under Section 118 of the Evidence Act and unknown person can be an attesting witness to a document. No doubt PW 2 Shri Pran Nath Sharma had no vested interest in the execution of the Will. He had come at the request of PW 1 Shri P.P. Sethi whom he knew from before. Simply because he was not known to the executor from before is not sufficient to discard his testimony especially when both the attesting witnesses to the Will are supporting each other. PW 2 "was called by PW 1 at the instance of the executor. In Shashi Kumar Banerjee, AIR 1964 SC 529 , this aspect of the matter was considered. It was observed that the mere fact that the attesting witness to a Will happens to be a chance witness cannot be considered as a ground for disbelieving his evidence. Generally the executor sends for the witnesses when he intends to execute a Will but even then there is nothing improbable in advantage being taken of the accidental presence of a witness in this connection. In Savithri & Ors. Generally the executor sends for the witnesses when he intends to execute a Will but even then there is nothing improbable in advantage being taken of the accidental presence of a witness in this connection. In Savithri & Ors. v. Kilrthyayani Amma & Ors., IX (2007) SLT 105=IV (2007) CLT 127 (SC)= JT 2007 (12) SC 248, where similar arguments were raised it was held that even if the witness was not known to the testator but proves in evidence that he had signed the Will and also the executor and other witnesses signed the Will in his presence and he also put his signatures in their presence the requirements of provision of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act were fully complied with. 36. The legal requirement is that the propounder of the Will has to prove the execution of the Will and at least one attesting witness is required to be examined for the purpose of proving the execution of the Will. What is required to be shown is that the Will has been signed by the executor of his free will and that at the relevant time he was of sound disposition of mind and he understood the nature and effect of the execution of the Will. What is further required is that he had signed the Will in the presence of two witnesses who attested his signatures in his presence and their signatures in the presence of each other. 37. The executor Late Shri Parmanand Sharma was an educated man he was well placed in life and was a Government employee. The Will is typed, registered and signed by the two attesting witnesses PW 1 and PW 2 and as discussed above they have proved that this Will was executed by Late Shri Parmanand Sharma in their presence by appending the signatures on the same and they had signed the Will as witnesses in the presence of Late Shri Parman and Sharma and in the presence of each other. 38. The law does not require that the Will should be read over to the attesting witnesses. Therefore, to say that none of the witnesses were read over and explained the Will Ex. 38. The law does not require that the Will should be read over to the attesting witnesses. Therefore, to say that none of the witnesses were read over and explained the Will Ex. PW 1/1 by the testator when they put their signatures on the same and, therefore, it is a suspicious circumstance to be kept in mind, which creates a doubt on the genuineness of the impuged Will, is not acceptable as requirement of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act are fully complied with. There is no provision in law which requires that the Will has to be read over to the witnesses before they put their signatures on the same. The witnesses have proved the execution of the Will of PW 2 Pran Nath Sharma at the time of the execution of the Will and signing the same cannot in the circumstances be treated as suspicious circumstances. 39. The other suspcious circumstance highlighted by the respondents is that deceased Shri Parmanand Sharma and the respondents had cordial relationship and he could not have therefore disinherited the respondents from his property. Late Shri Anand Swaroop Sharma was allotted a Plot No. B-l36, Amar Colony, Lajpat Nagar, New Delhi at the same time when the Plot No. B142, Amar Colony, Lajpat Nagar was allotted to his father, the Testator, Shri Anand Swaroop Sharma sold this house. He became a member of the Co-operative Society and after his death his family members were allotted Plot No. 38, Priya Enclave, New Delhi. The family of Shri Anand Swaroop Sharma was accommodated in the house in question by the testator on the death of Shri Anand Swaroop Sharma in a road accident on 1st August, 1972. Finally, the respondents were shifted to the second floor of the property No. B-142/142, Amar Colony, Lajpat Nagar. It has come in evidence that an understanding was given by the respondents that after they built up their house in Priya Enclave, they would vacate the second floor of the property. The said plot was built in the year 1988-89 after the death of the executor. The reason why respondents have been disinherited by the testator, are given in Para 6 of the Will Ex. PW 1 I 1, which reads as follows: "6. The said plot was built in the year 1988-89 after the death of the executor. The reason why respondents have been disinherited by the testator, are given in Para 6 of the Will Ex. PW 1 I 1, which reads as follows: "6. That my widowed daughter-in-law Smt. Kamla Sharma wife of Late Shri Anand Swaroop Sharma, has sufficient income from employment of her two sons who are well settled in life. Otherwise also, she has sufficient money with her for her independent livelihood. She has also a residential plot of land in Delhi allotted to her by a Co-op. House Building Society (of the Customs and Central Excise Department) of which her husband was a member. She is therefore, in no need of any assistance from my side and as such will not be entitled to any share whatsoever in my movable or immovable properties. Nor shall any of her three sons be entitled to any share therein." 40. Thus, it is clear that the testator knew as to why he was disinheriting the respondents because he felt that they had a residential plot to be built upon and used for residential purposes. DW 1 Smt. Kamla Sharma and DW 2 Shri Sunil Sharma had tried to state that deceased Late Shri Parmanand Sharma during his life time assured that he would not do injustice to them and would gift the second floor of the house. However, no Gift Deed was executed by the testator in their favour nor he gave them any share in his properties left behind by him. Normally, the children are not disinherited by the father from his properties unless he feels that a particular member of his family is financially well and does not need any support, or he was annoyed with the conduct of that particular child. In this case it seems that the testator was weighed by the financial status of the respondents while he disinherited them from his property. Not only he disinherited the respondents, he also disinherited his married daughters. It is pertinent to mention here that the daughters have given no objection certificate in favour of the appellants at the time when the appellants applied for mutation of the property in their names. 41. Not only he disinherited the respondents, he also disinherited his married daughters. It is pertinent to mention here that the daughters have given no objection certificate in favour of the appellants at the time when the appellants applied for mutation of the property in their names. 41. Another circumstance which weighed in the mind of the learned Single Judge while disbelieving the case of the appellants was that the testator was not even fair to the appellants while distributing his properties to them. The learned Single Judge found certain paras of the Will inconsistent with the conduct of the deceased whereby everything was given virtually to Shri Prem Prakash Sharma and the duty was also cast on Shri Om Prakash Sharma as well as on Prem Prakash Sharma to marry Neena Sharma, unmarried daughter which he left behind. We feel that there is some misinterpretation of the Will. Para 1 of the Will Ex. PW III is relevant in this context of the share of the appellants, which reads as under: "1. The property No. B-142/143, Amar Colony, Lajpat Nagar IV, New Delhi-110024 which at present is a 21/2 storeyed house (along with any additional construction which may be done hereafter before my death) be transferred to the joint name of my two living sons, Shri Om Prakash Sharma and Shri Pre in Prakash Sharma who are residing with me in the said house. Both of them (and none else) will be entitled to the use of the house for themselves and their families, they may rent out or sell or dispose of the same in any other way as they may mutually decide. They will be entitled to receive the rent or other benefits accruing from the property in equal share. They will also be liable, in equal share, to pay municipal and other taxes, etc. and discharge other liabilities in respect of the said property." 42. Thus, it is clear that the property NO. B-142-143, Amar Colony, Lajpat Nagar, New Delhi having 2112 storeyed building along with an additional construction, if any was to be transferred in the joint names of both the appellants. They were also given right to rent out or sell or dispose of the said property in any manner in case they mutually decided to do so. B-142-143, Amar Colony, Lajpat Nagar, New Delhi having 2112 storeyed building along with an additional construction, if any was to be transferred in the joint names of both the appellants. They were also given right to rent out or sell or dispose of the said property in any manner in case they mutually decided to do so. Both the appellants were given equal shares in the property and the rent, in case property was rented out and similarly both of them had equal liabilities to pay municipal and other taxes and discharge other liabilities in respect of the said property. 43. True that one another plot and printing business under the name and style of M/s. Sharma Printers owned by the deceased were willed in favour of Shri Prem Prakash Sharma. This fact cannot be treated as suspicious circumstances. 44. According to para 4 of the impugned Will the amount lying in the State Bank of India and also with the Canara Bank which were joint accounts of Prem Prakash Sharma and the testator and any other cash left behind by the testator were to be utilised for solemnizing the marriage of Neena Sharma, unmarried daughter of the testator if she remained unmarried during his lifetime. In case this amount was to be spent in any other manner then it was to be with mutual understanding and decision of both the appellants. 45. Para 4 of the Will Ex. PW 1/1 reads as follows: "4. That the amount lying in my State Bank of India (A/c. C-3232) and with Canara Bank (A/c. 14204) which are joint accounts with my son Shri Prem Prakash Sharma, and any other cash amount with me will be utilised for solemnizing the marriage of my youngest daugher Kumari Neena, if she remains unmarried till my death or may be spent in such manner as may be decided mutually by both brothers viz. Shri Om Prakash Sharma and Shri Prem Prakash Sharma." 46. Paragraph 6 of the Will has been interpreted by the learned Single Judge in the following terms: "This para 6 of the Will appears to be totally inconsistent with the conduct of the deceased. Shri Om Prakash Sharma and Shri Prem Prakash Sharma." 46. Paragraph 6 of the Will has been interpreted by the learned Single Judge in the following terms: "This para 6 of the Will appears to be totally inconsistent with the conduct of the deceased. While everything is being given to virtual Prem Prakash Sharma, the duty is being cast on Om Prakash Sharma as well as Prem Prakash Sharma to marry Neena Sharma and the children of Anand Swaroop Sharma are being totally deprived of even I temporary residential accommodation for a limited period till construction of their house. The consideration which was shown by defendants continued to prevail even at the time of execution of the Will for the circumstances did not change." 47. In our view the learned Single Judge misinterpreted paras 4 to 6 of the Will while giving above observations. It would not be appropriate to say that the executor had given everything virtually to Prerr, Prakash Sharma and duty for marriage of Neena Sharma was cast on both the appellants. Both the appellants were given equal share in the money lying in the bank accounts held by the executor jointly with Shri Prem Prakash Sharma as well as the cash which he might have left at the time of his death. Rather both the appellants were to spend this money lying in the bank account as well as the cash amount which might have been inherited after the death of the executor, on the marriage of Neena Sharma unmarried daughter of the deceased. Not only this, both the appellants were to share equally any movable or immovable property which the executor might have acquired before this death. Therefore, it cannot be said that contents of para 4 and 6 of the Will are inconsistent with the conduct of the deceased and are suspicious circumstances. 48. Another suspicious circumstance indicated by the learned Counsel for the respondents is the discrepancy which crept in during the examination and cross-examination of the witnesses regarding the age of the testator. As per the Will late Shri Parmanand Sharma was about 81 years of age when he executed the impugned Will. As per the cross-examination of Shri P.P. Sethi PW 1, the testator was about 60-62 years of age at the time of execution of the said Will. As per the Will late Shri Parmanand Sharma was about 81 years of age when he executed the impugned Will. As per the cross-examination of Shri P.P. Sethi PW 1, the testator was about 60-62 years of age at the time of execution of the said Will. Whereas Shri Pran Nath Sharma PW 2, has assessed the age of the testator as about 70 years, which he judged by the appearance of the testator Shri Parman and Sharma at the time of execution of the Will. Learned Single Judge while observing that there can be difference in perception of age of an individual held that this difference in perception of age of an individual held that this difference could not be of about 15 years if PW 1 P.P. Sethi knew the deceased and if the age was recorded at the instance of the deceased then there should not be difference of about 18 years. These findings are also based on misinterpretation of the cross-examination of the appellants witnesses. The age of the executor was recorded in the Will at the time when it was typed. This Will was already typed when PW 1 P.P. Sethi and PW 2 P.N. Sharma had signed the Will as attesting witnesses. P.P. Sethi in his cross-examination had given the age of the executor as 60-62 years approximately whereas PW 2 who had seen the executor for the first time of the execution of the Will. The discrepancy in the perception of the age of the executor in the testimony of the two witnesses is only of about 5-8 years. Both the witnesses did not know the age of the executor as stated in the Will. 49. Both the prosecution witnesses had given the age of the testator according to their assessment and not on the basis of any personal knowledge. It is significant that PW 3 Shri O.P. Sharma, one of the appellants was not put any questions by the Counsel for the respondents regarding the age of the testator at the time of the execution of the Will or even at the time of his death. To our opinion, the assessment of age given by the witnesses for the appellants because of above highlighted discrepancies cannot be considered as a suspicious circumstance. 50. Will Ex. To our opinion, the assessment of age given by the witnesses for the appellants because of above highlighted discrepancies cannot be considered as a suspicious circumstance. 50. Will Ex. PW 1/1 is duly registered with the Registrar as per the testimony of PW 1 and PW 2. The Will was registered in their presence and they had signed the Will as witnesses before the Sub-Registrar and testator Late Shri Parmanand Sharma had also signed the Will before the Registrar in their presence. The registration endorsement on the back of the Will also bears the thumb impression of the testator. It is a typed document. As pointed out above, testator was an educated and well placed Government officer and was well aware of his bequeathing all his property in favour of the appellants. A registered Will is a strong factor to discard suspicious circumstances as alleged by the respondents. In fact, according to the testimony of the witnesses they had signed the impugned Will only in the Registrar Office and at no other place. The witnesses are consistent in their testimony though they were examined after a lapse of about 12 years of the execution of the Will. 51. The respondents have also alleged that this Will was got signed by the appellants by coercion, misrepresentation, etc. from the testator. However, no evidence has been adduced to this fact. Since respondents have taken the plea of coercion and misrepresentation, etc. it was for them to prove that the impugned Will was got signed by the appellants by coercion or misrepresentation, etc. It has come in evidence that the appellants, the propounders of the Will were not present at the time of the execution of the Will. Rather even they were not aware that their father had left behind a Will which they found in the documents of the testator much after his death. Once the signatures of the testator were proved on the Will by the attesting witnesses it was for the respondents to rebut and prove that the Will did not bear the signatures of Late Shri Parman and Sharma, and that it was a forged document. Again, no attempt has been made by the respondents to examine the handwriting expert, though opportunities taken in their evidence to refute that the Will Ex. PW 1/1 is signed by the testator Late Shri Parmanand Sharma. 52. Again, no attempt has been made by the respondents to examine the handwriting expert, though opportunities taken in their evidence to refute that the Will Ex. PW 1/1 is signed by the testator Late Shri Parmanand Sharma. 52. In view of our discussion above, the findings of the learned Single Judge on issue No.2 are erroneous and are hereby set aside. Hence this issue stands proved in favour of the appellants and against the respondents. 53. The appellants have also claimed damages/mesne profits for use and occupation of the second floor by the respondents @Rs. 3,000/- per month from the date of institution of the suit till the recovery of the possession of the second floor. However, no evidence has been led by the appellants to support their claim for damages @ Rs. 3,000/ - per month except that PW 3 Shri Om Prakash Sharma has deposed that they had claimed Rs. 3,000/ - per month as charges for use and occupation though the rates of rent for the similar period in the same locality were higher. There is no cross-examination of DW 1 regarding damages as claimed by the appellants. Similarly, there is no cross-examination of DW 2 Sunil Sharma, respondent regarding the claim of damages. Since no evidence has been adduced on the record by the appellants regarding their claim for damages and in view of the fact that the respondents are in occupation of the suit property, as they had been inducted by their father-in-law Late Shri Parmanand Sharma, being widow and children of his deceased son Anand Swaroop Sharma, we are of the view that the appellants are not entitled to any damages as claimed. 54. Consequently the judgment and decree of the learned Single Judge dated 8th December, 1999 passed in Suit No. 2548 of 1992 is hereby set aside. A decree of possession in respect of second floor (Barsati Floor) of property No. B-142-143, Amar Colony, Lajpat Nagar, New Delhi is hereby passed in favour of the appellants and against the respondents. Respondents shall hand over the vacant possession of the property in question within three months from the date of this order. Modified decree can be prepared accordingly. File of the Trial Court be sent back. There are no orders as to costs. Ordered accordingly.