LAWS(DLH)-1998-9-82

VIDYA RANI Vs. SURINDER KAUR

Decided On September 16, 1998
VIDYA RANI Appellant
V/S
SURINDER KAUR Respondents

JUDGEMENT

(1.) The appellants have felt aggrieved by the impugned order passed by the Additional District Judge, Delhi whereby he dismissed their petition seeking probate of the 'Will' of their deceased mother Smt. Iqbal Kaur. BY the impugned order the Trial Court has held that these appellants had failed to prove the said 'Will' to be genuine or the last testament of their mother Smt. Iqbal Kaur. The impugned order has been assailed, inter alia, on the grounds that the Court below relied upon the statement purported to have been made by the appellant which statement was neither produced by the respondent nor proved on record. Moreover, the probate petition could not have been dismissed on the ground that there was delay in producing the 'Will' nor the testimony of the husband of appellant No.1 could be rejected on the ground that he was an interested witness. The 'Will' could not have been doubted on the ground that it did not disclose the purpose for which the property was being used nor a shadow could be casted on the 'Will' on the ground that the testatrix was relevantly young in age when the alleged will purported to have been executed by her. Once the attesting witness was adduced who proved the execution of the 'Will', the appellants discharged their onus. The 'Will' thus stood proved to be genuine. Its execution by their mother stood proved by the testimony of the appellants and other witnesses. Genuineness of the 'Will' ought to have been inferred rather than casting doubt on the same.

(2.) In order to appreciate the challenge raised, lets have glance at the brief facts of the case. These are that Smt. Iqbal Kaur, W/o late Shri Balwant Singh left behind three daughters i.e. these two appellants and present respondent. Iqbal Kaur died on 2nd January,1982. She left behind moveable and immoveable properties, namely, house No.WZ-2K (New No. K-19), Shyam Nagar, New Delhi, measuring about 234 sq.yards, beside the household goods. An ancestral property situated at Tehsil Asandh, District Karnal (Haryana) and a sum of Rs. 41,374.00 in her saving bank account in the State Bank of India, Tilak Nagar, New Delhi. These appellants found this 'Will' upon the death of their mother Smt.lqbal Kaur dated 1st May, 1972 written in Urdu and signed by the deceased. The 'Will' specifically dealt with the immoveable property i.e. of house at Shyam Nagar and the household goods lying therein. Appellants filed petition seeking probate to which respondent herein filed objections on the ground that the 'Will' was forged. Their mother being illiterate did not know how to put her signatures in Gurmukhi. She never ever signed any document. Moreover, the Will was not set up by the appellants at the first available opportunity i.e. when the appellants ought succession of 2/3rd share of the amount lying in the bank account of the mother or while claiming 2/3rd right in the ancestral land at Karnal. It was as a couuter blast to her suit that at this probate petition had been filed. That appellants in their suit for injunction based their right on this property at Shyam Nagar on the basis of some centration made by their mother in 1977 before the Sangat Even right over this property appellants did not rely 'Will 'had been fabricated in order to deprive the respondent who happens to be eldest sister of the appellants of her 1/3rd share in this property. As already pointed out above, the Court below found substance in these objections and dismissed the petition of the appellants.

(3.) I have heard Mrs. Savita Malhotra, counsel for the appellants and Mr. C.S.Duggal for the respondent. After perusing the record at least one thing gets clear that parties have been litigating for a long period. And that the appellants for the first time after almost nine years of the death of their mother set up this 'Will' to claim their right over the immoveable property at Shyam Nagar. There is no explanation forthcoming for this delay. Since according to these appellants their mother after executing the 'Will' had informed about the same to the appellants then what prevented them to set up this Will at the first available opportunity. Why the 'Will' dated 1st May, 1972 saw the light of the day only in July, 1991 ? This is the key to the answer of this appeal.