THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: 31st May, 2011
+ Test Case 70/2010
ISHAR SINGH .....Petitioner
- versus -
STATE OF DELHI .....Respondent
Advocates who appeared in this case:
For the Petitioner: Mr. Pinaki Addy, Adv.
For the Respondent: Ms. Shobhana Takiar, Adv.
Mr. Manav Ujla, Adv.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported No
in Digest?
V.K. JAIN, J. (ORAL)
1. This is a petition under Section 276 of Indian Succession Act for grant of probate of the Will alleged to have been executed by Late Smt. Gursaran Kaur on 29th November, 2004. Late Smt. Gursaran Kaur died on 21st February, 2010 leaving husband, two sons and three daughters as her legal heirs. The petitioner is the husband of the testatrix, Mr. Test Case. No. 70/2010 Page 1 of 6 Gurbachan Singh and Mr. Jaswinder Singh are her sons and Mrs. Kuljit Chatteerjee, Mrs. Baljit Rana and Mrs. Guljit Kaur Kochar are her daughters.
2. The citation was published in Hindustan Times and Navbharat Times and was also affixed at a conspicuous portion of property no.E-4, Nizammudin West, New Delhi which is alleged to have been owned by Late Smt. Gursaran Kaur. Notice of the petition has been served on all the non- applicants legal heirs of the deceased. Objections have not been filed by any of the legal heirs of the deceased. Rather affidavits of consent have been filed by all of them, admitting the Will dated 29th November, 2004 and stating that they have no objection to grant of probate to the petitioner.
3. The original Will has been filed along with the petition. It purports to have been executed by Smt. Gursaran Kaur in the presence of two witnesses namely Mr. Shekar Nagpaul and Mr. Naresh K. Manaktala. The petitioner has filed affidavit of Shri Shekar Nagpaul, one of the attesting witnesses to the Will. In his affidavit, Shri Shekar Nagpaul has stated that the Will dated 29th November, 2004 was signed by Late Smt. Gursaran Kaur in his presence and in the presence of Mr. Naresh K. Manaktala. He has further stated Test Case. No. 70/2010 Page 2 of 6 that both of them also signed the Will as attesting witnesses on the request of the testatrix. He has also stated that she was in good health and of sound mind at the time of execution of the Will annexed as Annexure B/1.
It has been also stated in the petition that the other attesting witness has expired and a copy of his death certificate is also stated to have been filed. The attestation of the Will has been duly signed by the attesting witnesses.
4. A bare perusal of Section 63(c) of Indian Succession Act would show that a Will is required to be attested by two or more witnesses and each of them must have seen the Testator sign or affixing his mark to the Will or should have seen some other person signing the Will in the presence and under the directions of the Testator or should have received a personal acknowledgement from the Testator with respect to his signature or mark or signature of the another person who signs the Will in the presence and under the direction of the Testator and it is also necessary that each witness should sign the Will in the presence of the Testator. This, however, is not the requirement of law in India that both the attesting witnesses should also sign in the presence of each other.
5. Section 68 of Evidence Act, to the extent, it is Test Case. No. 70/2010 Page 3 of 6 relevant, provides that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Since the Will is a document required by law to be attested by at least two witnesses, the petitioner could have proved it by producing one of the attesting witnesses of the Will. In the case before this Court, the petitioner has examined both the attesting witnesses to the WILL and has thereby duly proved the document in terms of the requirement laid down in Section 68 of the Evidence Act.
6. There is no material on record to indicate that the testator was not in a sound state of mind while executing the Will. She died on 21st February, 2010 whereas the Will is stated to have been executed on 29th November, 2004. It has also come in the deposition of the attesting witness that she was in a sound state of mind while executing the Will. There are no suspicious circumstances surrounding execution of the Will. The suspicious circumstances may be many such as (i) the signature of the Testator may be shaky and doubtful or different from his usual signatures; (ii) the mental condition of Test Case. No. 70/2010 Page 4 of 6 the Testator may be feeble and debilitated at the time of the execution of the Will; (iii) the disposition may be such as is found to be unnatural, improbable or unfair in the light of relevant circumstances, such as exclusion of natural heirs without any reason (iv) the propounder may take a prominent part in the execution of the Will; (v) the Will may not see the light of the day for long time; (vi) the Will may contain incorrect recital of essential facts. There is no evidence of the any of the beneficiaries of the Will having taken part in the execution of the Will. There is no evidence of the Will containing any incorrect statement of the fact. The probate has been sought in the same year in which the testator died.
A perusal of the Will would show that the deceased has given her property to all her legal heirs in equal shares. The disposition, therefore, cannot be said to be unnatural, improbable or unfair.
7. Considering the deposition of attesting witness Shri Shekar Nagpaul given on an affidavit coupled with the fact that despite publication of citation in newspapers, there is no objection from the non-applicant legal heirs of the deceased to grant of probate to the petitioner and they have rather given consent to the grant of probate. The petition is allowed and it Test Case. No. 70/2010 Page 5 of 6 is directed that the probate of the Will dated 29th November, 2004 executed by Late Smt. Gursaran Kaur along with copy of the Will annexed to it be issued to the petitioner as per rules.
The petition stands disposed of.
(V.K. JAIN) JUDGE MAY 31, 2011 SD Test Case. No. 70/2010 Page 6 of 6