Dharm Bir Singh v. Union of India and Ors

INDERMEET KAUR, J OCTOBER21, 2011 nandan Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Fjççi .t.i. L 4 . 4 :ll A-8 &.22 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date ofJucigmeit: 21.10.2011 ±CM(M) No.1156/2009, CM No.14762/2009 & F CM(M) No.1128/2009 DHARAM BIR SINGH Petitioner Through: Ms.Anju Lal, Advocate for the petitioner. Versus F UNION OF INDIA & ANR. ..........Respondents Through: Mr. Sanjay Kumar . Pathak, Advocate for the R-1. Mr.Ajay Verma, Advocate for the DDA/respondent no.10. Mr.S.S.Tomar, Advocate for the respondent no.2. CORAM: HONBLE MS. JUSTICE INDERMEET KAUR

¶1Whether the Reporters of local papers may be allowed to •' ; see the judgment? H 2. To be referred to the Reporter or not? Yes h

¶3Wheter the judgment should be reported in the Digest? Yes INDERMEET KAUR, 1.

(Oral)

¶1Order impugned before this court is the order dated 1 11.5.2009 vide which the application filed by the petitioner Narain CM(M) Nos.1156/2009 & 1128/2009 Page 1 oI6 ;.(4 ** Singh under Order 22 Rule 3 of the Code of Civil Procedure (hereinafter referred to as "the Code") seeking substitution as legal representative of Ancha Devi had been allowed. I

¶2Record shows that a Reference Petition under Section 18 of the Land Acquisition Act seeking enhancement of compensation was pending before the concerned court. Deceased Ancha Devi was the wife of Shanker Singh. Shanker Singh had two brothers namely Mahavir Singh and Dhrambir Singh. Dharambir Singh claims himself to the legal representative of the deceased Ancha Devi. On the other hand the petitioner Narain Singh being the grandson of Ancha Devi is also claiming the estate of Ancha Devi; he had set up his claim on the basis of a will dated 18.01.1990 purportedly executed by Ancha Dcvi bequeathing her property in his favour. After the death of Ancha Devi application for substitution had been filad by Narain Singh claiming to be her legal representative 1sues qua the will were framed. They read as follows: Nu . tt J 1 Who is entitled to be substituted in place of deceased Ancha • . Devi thus in place of Mahavir Singh?

2.Relief.

¶3To prove the will Narain Singh had come into witness box. He has reiterated that the will Ex.PW-2/1 dated 18.10.1990 had if cM(M)N0s1156/2009 & 1128/2009 Page2of6 .j .: IJ I h I 1• P. I I 2 L4._ L

IH been left by Ancha Devi in his favour. There were two attesting witnesses one Ranjit Singh and another Shree Pal. Ranjit Singh was examined before the trial court as PW-2 He has on oath deposed that Ancha Devi had executed a will in favour Subash (@ Narain Singh); this was registered at Kashmere Gate about 12-13 years back. The will had been thumb impressed by him. The petitioner Subhash (Narain Singh) was living with Ancha Devi. In H his cross-examination he has identified his signature at point 'C' in Ex.PW-2/1. He had categorically deposed that the will was read over in his presence and thereafter he had signed the will ; counsel for the petitioner has highlighted that part of the cross-examination of PW-2 wherein he has stated that "thereafter Ancha Devi thumb marked"; contention being that Ancha Devi had thumb marked the will after the attesting witnesses which is not as per the requirement of 63(c) of the Indian Succession Act, H 1925. Moreover the attesting witnesses has also not deposed about the presence of the second attesting namely Shri Pal; these H are the grounds of challenge to the will.

¶4It is not in dispute that the pal -ties are illiterate and uneducated. The deceased Ancha Devi is a pardanshin lady. This has also come in the version of PW-2. The will is a typed written document; contention of the petitioner is that this document had CM(M) Nos.1156/2009 & 1128/2009 Page 3 oF6 I ' f I L - ((7 1 been got typed and drafted by some other person without the 1 contents being known to the testator as it is in a third person form. • Evidence led by the petitioner negatives these submissions. Petitioner as also the attesting witnesses have clearly and categorically deposed that Ancha Devi thumb marked this will while she was in a sound disposing state of mind. The attestinq witnesses had also signed in the presence of the testator. Merely because a line had appeared in the cross-examination that after the will had been thumb marked, by the attesting witness, 11, thereafter Ancha Devi thumb marked it can be given no relevance. Parties are admittedly illiterate; PW-1 and PW-2 have deposed that the parties had gone to Kashmere Gate where the will had been registered; Ancha Devi had thumb marked it and thereafter the attesting witness had alco put his thumb mark in the presence I of the attestmg witness. Testfrnony of a witness has to be read as a whole; no one sentence can be subtracted from its whole to give it a contrary meaning; intention has to be gathered from a wholesome reading of the version. In no manner can it be said that requirement of Section 63 (c) of the Indian Succession Act had not he adhered to.

¶6There is no dispute to the factum that under Section 68 of CM(M) Nos. 1156/2009 & 1.128/2009 Page 4 o16 I ii Ir

the Indian Evidence Act only one attesting witness is required to prove a will. Section 63 (c) of the Indian Succession Act reads as follows: '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 knowledge of his signature or mark, or the signature of such other person; and each of the witness shall sign the Will in the presence of the testator, but it shall not be necessary that more than witness be present at the same time, and no particular form of attestation shall be necessary." There were admittedly two attesting witnesses; out of which Ranjit Singh was examined as PW-2. Version of Ranjit Singh satisfies the requirement of Section 63(c); requirement being that each of the attesting witnesses must have seen the testator sign or affix his mark to the Will and has received from the testator a personal acknowledgment of his signature and mark on the Will; further that the attesting witnesses shall sign the Will in the presence of the testator. PW-2 had signed the will in the presence of the testator. PW-3 was the summoned witness from the office cM(M)Nos.1156/2009 & 1128/2009 Page5oF6 1I -i Page - I ---, WIN of the Sub-Registrar who had also cofroborated the version that this will was registered vide Ex.AW-1/1.

¶9The irnpugned judgment in no manner suffers from no infirmity. Petition is without any merit. Dismissed. INDERMEET KAUR, J OCTOBER 21, 2011 nandan I CM(M) Nos.1 156/2009 & 1. 128/2009 Page 6 oI6 I --------.---. --

/0 A-22 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date ofjudgment: 21.10.2011 + CM(M) No.1128/2009 DHARAM BIR SINGH Petitioner Through: Ms.Anju Lal, Advocate for the petitioner. Versus UNION OF INDIA & ORS. b Respondents Through: Mr.Sanjay Kumar Pathak, Advocate for the R-1. Mr.Ajay Verma, Advocate for the DDA/respondent no.10. Mr.S.S.Tomar, Advocate for the respondent no.2. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR Whether the Reporters of local papers may be allowed to see the judgment? To be referred to the Reporter or not? Yes Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, I. (Oral) For order see CM(M) No.1156/2009.