* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 07.09.2012
+ TEST.CAS. 75/2010
PRITHVIRAJ SEHLI @ PRACHA PRACHASERI & ANR
..... Petitioners
Through: Ms Chitra Gera, Adv for Petitioner
No. 2,
versus
STATE & ORS ..... Respondents
Through: Ms Asha Bhalla, Adv for R-2
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
V.K.JAIN, J. (ORAL)
1. This is a petition for grant of probate in respect of the Will, alleged to have been executed by late Smt. Shanti Devi on 19.07.1991. Smt. Shanti Devi, who expired on 08.03.2004, was survived by four legal heirs, including the petitioners Prithvi Sehli and Balraj Sehli. It is alleged that in her life time, she had executed the aforesaid Will dated 19.07.1991 in the presence of two attesting witnesses, namely, Vinay Shukul and Ram Das Singh.
2. Notice of the petition has been served by the respondents 2 and 3, but there has been appearance only on behalf of respondent No. 2. The learned counsel representing respondent No. 2, states that there is no objection to grant of probate TEST.CAS. 75/2010 Page 1 of 5 of the Will.
3. The citation was also published in 'The Statesman', which is on record. The petitioner has filed two affidavits by way of evidence.
4. In his affidavit by way of evidence, Mr Vinay Shukul has stated that Smt. Shanti Devi was ordinarily residing at 16, Soi Somdej Chao Praya 12, Klongsan Thonburi, Bangkok, Thailand, at the time of her death. He has further stated that on 19.07.1991, he went to the house of Smt. Shanti Devi on her invitation. She informed him that she had got her last Will prepared through an advocate and wanted him and Shri Ram Das Singh, who was already present there, to be the attesting witness to her Will. Thereafter, they went to the Attache (Consular), Embassy of India, Bangkok on the same day at around 11.00 A.M. for the purpose of proper execution and its attestation in the said office. He has further stated that in the aforesaid office, he saw Smt. Shanti Devi signing the Will Ex.P1W1/3. She signed on the last page in his presence. Thereafter, he and Ram Das signed the Will at points 'A' and 'C' respectively on her request and in her presence as well as in the presence of each other. The signature of Smt. Shanti Devi were got attested by the authorized officer of the Attache. The witness has further stated that Smt. Shanti Devi was in good state of health and in a sound disposing mind when she executed the Will.
5. In her affidavit by way of evidence, Ms Chiranya Prachaseri, who also TEST.CAS. 75/2010 Page 2 of 5 happens to be the daughter and attorney of petitioner No. 1 Shri Prithviraj Sehli has stated that Smt. Shanti Devi was ordinarily residing at 16, Soi Somdej Chao Praya 12, Klongsan Thonburi, Bangkok, Thailand. She has further stated that Smt. Shanti Devi, who was a Hindu, was survived by her husband Shri Hansraj Sehli and three sons, namely, Prithviraj Sehli, Balraj Sehli and Raviraj Sehli. She has also identified the signature of Shanti Devi on Ex.P1W1/3. She has stated that the aforesaid Will was opened on 18.12.2007 in the presence of Shri Hansraj Sehli, Shri Balraj Sehli, Shri Raviraj Sehli, Shri Vinnay Bhalla and a lawyer named Sajaphong Praphangkorn. The Attache (Consular) attested the signature of Balraj Sehli and Raviraj on the memo Ex.P1W1/4. According to this witness, respondent No. 3 executed a relinquishment deed Ex.P1W1/5 before the Consular, Embassy of India, Bangkok and also executed the affidavit/NOC Ex.P1W1/6.
6. Mr Bhalla is the last witness produced by the petitioners. He is the attorney of petitioner No. 1 Balraj Sehli. In his deposition, he has corroborated the deposition of Chiranya Prachaseri. He has also identified the signature of Smt. Shanti Devi on the Will Ex.P1W1/3. He has confirmed the signature of respondent No.3 on the Relinquishment Deed Ex.P1W1/5 and the affidavit Ex.P1W1/6. This witness has also proved the NOC Ex.P1W1/6 given by respondent No. 2.
7. The execution of an unprivileged Will is governed by Section 63 of Indian Succession Act which, to the extent it is relevant, provides that the Will shall be TEST.CAS. 75/2010 Page 3 of 5 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 acknowledgment 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. Section 68 of Evidence Act, to the extent, it is 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. The execution of the will has been duly proved by way of affidavit of the attesting witness Mr Vinay Shukul. The execution of the Will thus stands duly proved. There are no suspicious circumstances surrounding execution of Will in question.
8. The respondent No.2, through his counsel, states that he has no objection to grant of probate to the petitioners. Though in the Will, Smt. Shanti Devi bequeathed her properties to the petitioners to the exclusion of her husband and TEST.CAS. 75/2010 Page 4 of 5 son, considering the fact that the husband has given no objection and the third son of Smt. Shanti Devi, namely, respondent No. 3 Raviraj Sehli has not only executed a relinquishment deed in favour of the petitioners, but also an affidavit/NOC, admitting execution of the Will, there is no ground to suspect the genuineness and authenticity of the Will set up by the petitioners and there is no valid reason for refusing probate to the petitioners.
9. For the reasons stated hereinabove, the petition is allowed. Probate of the Will executed by late Smt. Shanti Devi on 19.07.1991 be issued to the petitioners with copy of the Will annexed to it, as per rules, after confirming that the report of Chief Revenue Controlling Authority along with valuation report has been received.
V.K. JAIN, J SEPTEMBER 07, 2012 bg TEST.CAS. 75/2010 Page 5 of 5