* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 03.01.2013.
Judgment delivered on: 11.01.2013.
+ FAO (OS) No.284/2009
NUTAN KUMAR & ANR. ..... Appellants
Through: Mr. V.S. Chauhan, Adv.
versus
RAJESH ARORA & ORS. ..... Respondents
Through: Mr. Sumit Bansal, Mr. Ateev Mathur &
Mr. Ajay Monga, Advs. for R-1.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. .
1 This appeal has impugned the order of the Single Judge dated
25.03.2009 wherein the probate petition filed by Rajesh Arora (hereinafter referred to as the 'petitioner') seeking probate of a Will dated 01.06.1995 (Ex. PW-4/3) executed by his late father Tilak Raj Akalgariah (hereinafter referred to as the 'testator') had been decreed. 2 Record shows that the testator had five children i.e. three sons and two daughters. His wife had predeceased him. The Will purported to FAO (OS) 284/2009 Page 1 of 12 have been executed by him had bequeathed his properties both moveable and immoveable in favour of the petitioner; his other two sons Nutan Kumar and Anil Kumar had been disinherited. This document had been signed by the testator; there is no dispute to this position. It also has the thumb impression and photograph of the testator. In the column of witnesses, two names have been mentioned namely Yashpal Singh and Advocate R.R. Bhardwaj. Both of them have also signed the said document. Signatures of Balbir Singh also appear on the right hand side of the document. The Will is a registered document. At the back page of Ex. PW-4/3 stamp of the Registrar is evident; it has certified "contents of the documents explained to the parties who understood the terms and admit them as correct". The names of the testator Tilak Raj Akalgariah and the two attesting witnesses Yashpal Singh and R.R. Bhardwaj also find mention in this document.
3 The appellants before this Court are the two disinherited sons namely Nutan Kumar and Anil Kumar. They are aggrieved by the finding returned by the Single Judge decreeing the probate petition in favour of their brother/Respondent No. 1.
FAO (OS) 284/2009 Page 2 of 12 4 The submission of the learned counsel for the appellants is three- fold.
(i) Section 63 (c) of the Indian Succession Act, 1925 (hereinafter referred to as the 'Act') has not been satisfied; the Single Judge has wrongly concluded that attestation of the Will stood proved from the testimony of PW-4. No effort was made to call Balbir Singh which fact should be read against the petitioner.
(ii) The registration of a Will is not per-se conclusive of the execution of the document; if a suspicious circumstance is raised as was so in the instant case; registration of the Will would not per-se suffice.
(iii) The subject matter of the Will i.e. property No. 18, State Bank Colony, G.T. Karnal Road, Delhi was an HUF property; the testator could not have bequeathed this property as it was held for the benefit of the other coparceners i.e. heirs of Chotey Lal and Goverdhan Lal who are deemed to be in constructive possession of the suit property.
5 Submissions have been countered.
FAO (OS) 284/2009 Page 3 of 12
6 We have perused the evidence adduced before the trial Court.
PW-4 Yashpal Singh was the attesting witness. He had admitted his signatures at point 'z' on Ex. PW-4/3; he has also admitted that Ex.PW-4/3 bore the signatures of the testator and the second attesting witness when he had signed Ex. PW-4/3. Before the testimony of the witness could be concluded, he stopped appearing. On an application filed by the petitioner bailable warrants were ordered against him; thereafter on a prayer made by the petitioner PW-4 was declared hostile. On a categorical question put to this witness, he admitted that the second witness had signed Ex. PW-4/3 at the point which bore the stamp of R.R. Bhardwaj. Even in his cross-examination, on a specific suggestion given to him, he reiterated that his signatures appear on Ex. PW-4/3.
7 Section 63 (c) of the Act reads as under:-
"Execution of the unprivileged Wills
(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 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 FAO (OS) 284/2009 Page 4 of 12 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. " 8 This section sets out a mandatory requirement for the proof of a Will. The petitioner seeking relief must show that the testator had signed the Will or it had been signed by some other person in the presence of the testator who has personally acknowledged his signatures. A Will is also required to be attested by two or more witnesses. It is however not necessary that more than one witness be present at the same time. No particular form of attestation is also necessary.
9 The testimony of PW-4 has to be tested on this touch stone. PW-4 in clear and categorical terms has admitted his signatures on Ex.PW-4/3. PW-4 was working as a Clerk with the document writer at Kashmere Gate at the relevant time; he has admitted that he used to sign as a witness on documents 2-3 times in a month; there was a heavy rush hour in the office of the Sub-Registrar till 2-3 P.M and as such he could not notice as to at which place the second witness had signed near the stamp. He has also admitted the factum of the testator having signed the document as also the second witness Mr. R.R. Bhardwaj having attested FAO (OS) 284/2009 Page 5 of 12 it over the stamp affixed of R.R. Bhardwaj. This deposition clearly establishes that PW-4 had signed Ex. PW-4/3 knowing fully well that he was signing in his capacity as an attesting witness; he had in fact signed Ex.PW-4/3 after the testator had affixed his signatures on it; the second witness was also known to him by name and reference to R.R.Bhardwaj has been noted; PW-4 having admitted that R. R. Bhardwaj had signed over the stamp affixed of his name. It is also not in dispute that the testator was present for the registration of the document which is clear from the back page of Ex.PW-4/3 where the names of other two witnesses Yashpal Singh and R.R. Bhardwaj have also been noted. In fact no suggestion has been given to PW-4 on this count that the testator was not present at that time.
10 Requirement of law is that attesting witness has to sign in the presence of the testator which requirement thus stands fulfilled. Judgment relied upon by the learned counsel for the appellant reported as JT 1995 (&) S.C. 48 Kashibai W/o Lachiram & Anr. Vs. Parwatibai W/o Lachiram & Others would have no application to the present facts. FAO (OS) 284/2009 Page 6 of 12 11 The second attesting witness to Ex. PW-4/3 was R.R. Bhardwaj. R.R. Bhardwaj had allegedly filed an application under Order 1 Rule 10 of the Code of the Civil Procedure seeking impleadment in the present petition; application being to the effect that he had not attested Ex.PW4/3. However fortunately or unfortunately this witness could not be examined as he had expired before the prayer made in his application could be answered. He not having come into the witness box no credence can be attached to the submission of the appellant that this witness was not supporting the Will.
12 The submission of the appellant that Balbir Singh was yet another attesting witness is incorrect. Ex. PW-4/3 shows the names of the witnesses in the left column at serial Nos. 1 & 2 where signatures of Yashpal Singh and R.R. Bhardwaj appear; signature of Dr. Balbir Singh, a medical practioner appears at the right hand side of Ex. PW-4/3; he had merely authenticated the Will; he was not the attesting witness; this is further fortified from the list of witnesses (Part D) filed by the petitioner wherein Yashpal Singh has been described as an attesting witness but Doctor Balbir Singh has been assigned the status simplicitor FAO (OS) 284/2009 Page 7 of 12 of a witness. Thus this submission of the appellants that Dr. Balbir Singh was an attesting witness is negatived.
13 Section 68 of the Indian Evidence Act lays down the mode of proof of the execution of the Will. Section 68 requires attestation by two or more witnesses; one of the two attesting witnesses has necessarily to be examined for proving the execution of the Will.
14 A co-joint reading of Section 63 (c) of the Act and Section 68 of the Indian Evidence Act show that the essential ingredients of the aforenoted sections have been met. The testator has affixed his signatures on Ex. PW-4/3. There is in fact no dispute to this. The testator was even otherwise a literate man. The endorsement on the back page of Ex. PW-4/3 also shows that the contents of the document had been read- over and explained to the testator; this has been certified by the Sub- Registrar. The two attesting witnesses have also affixed their signatures in the column of the witness at serial Nos. 1 & 2. This is clear from the testimony of PW-4. PW-4 has not only admitted his signatures on Ex. PW-4/3 but he has also admitted that the testator and the second witness R.R. Bhardwaj had signed Ex.PW-4/3. As noted supra, no particular FAO (OS) 284/2009 Page 8 of 12 form of attestation is prescribed; it is also not necessary that both the witnesses should be present at the same time; one attesting witness is also sufficient to prove the execution of the document; the testimony of PW-4 fulfills these parameters. R.R. Bhardwaj had expired before he could come into the witness box. Dr. Balbir Singh not being an attesting witness was not mandatorily required to be examined. 15 The diary (Ex. RW-1/1) written by the testator was also admittedly in his hand writing. This has been admitted by RW-1 in his cross-examination. The diary notes the strained relationship of the testator with the appellants. The intent of the testator can also be gathered through these writings.
16 There is no doubt to the proposition that the registration of a Will would not per se dispense with the need or requirement of the due execution and attestation of the Will which is otherwise required to be proved in accordance with law. [see (2003) 12 SCC 35 Bhagat Ram & Another Vs. Suresh and Others]. The fact that the Will was registered however adds to the authenticity of the document; if its execution and attestation has otherwise been proved.
FAO (OS) 284/2009 Page 9 of 12 17 In AIR 1995 SC 1684 Rabindra Nath Mukherjee and another Vs. Panchanan banerjee (dead) by L.Rs. and other, the Supreme Court on this aspect had inter-alia has held as under:-
"In case where a Will is registered and the Sub-registrar certifies that the same had been read over to the executor who on doing so, admitting the contents, the fact that the witnesses to the document are interested lose significance. The documents at hand were registered and it it on record that the Sub-registrar had explained the contents to the old lady. So, we do not find the third circumstance as suspicious on the facts of the present case."
18 In the present case as well, the stamp of Sub-Registrar has certified that the contents of the documents have been read-over and explained to the testator. The presumption under Section 114 illustration
(e) of the Evidence Act is attracted; that the official act i.e. the endorsement of registration was regularly and duly performed. 19 Thus the judgment relied upon by the learned counsel for the appellant reported as AIR 1962 SC 567 Rani Purnima Debi and another Vs. Kumar Khagendra Narayan Deb and another would have no application as this was a case where the evidence had reflected that the registration was done in perfunctory manner and the officer registering the Will had not read over its contents to the testator. FAO (OS) 284/2009 Page 10 of 12 20 The written statement filed by the appellants in fact does not plead any suspicious circumstance; there is no averment of any kind that there was any undue influence or coercion upon the testator or that he was not of a sound disposing mind at the time when the document was executed. In fact no suggestion has also been given to any of the witnesses of the petitioner that Ex.PW-4/3 was either fabricated or forged. A bald averment has been made that the property which is the subject matter of the Will was an HUF property and to support this submission attention has been drawn to Ex.RW-2/2 to Ex. RW-2/4. This submission is not fortified by the aforenoted documents. Ex.RW-2/2 is a letter written by the testator to the Competent Authority seeking adjustment of his claim of compensation against the purchase of certain agricultural land situated in Delhi. Ex. RW-2/3 is an agreement to sell executed between the testator and the State Bank of India Employees Cooperative Housing Society wherein the testator had agreed to transfer compensation of Rs.4,110/- to the vendee which he had received from the Competent Authority. How and in what manner these documents substantiate the argument of the appellants that the subject matter of the FAO (OS) 284/2009 Page 11 of 12 Will is an HUF property have not been answered; the aforenoted documents definitely do not answer this proposition. 21 The learned Single Judge has appreciated these contentions in the right perspective.
22 On no count, do we see any reason to interfere with the impugned order. Appeal has no merit. It is accordingly dismissed.
INDERMEET KAUR, J.
JANUARY 11, 2013 SANJAY KISHAN KAUL, J.
A
FAO (OS) 284/2009 Page 12 of 12