Thakur Dass Virmani And Others vs Smt. Raj Minocha & Another
2000 Latest Caselaw 87 Del

ORDER

Vijender Jain, J.

1. Aggrieved by an order of grant of letter of administration, the Objectors/appellants have filed the present appeal.

2. It has been contended by Mr. Chopra, learned counsel for the appellants that a suit for partition is pending in the High Court in relation to the property in question and, therefore, the Probate Court ought to have stayed the proceedings till the decision in the partition suit pending in the High Court. He has further contended that the Will did not inspire any confidence as the circumstances in which the Will was executed were doubtful. It has further been contented by learned counsel for the appellants that the mere fact that both the attesting witnesses were beneficiaries of the Will would create doubt about the genuineness of the Will. It has been further contended by Mr. Chopra that a material witness, advocate Tuteja was not brought in the witness box although he was an independent witness and allegedly drafted the Will and got the same registered in the office of the Sub-Registrar.

3. It has been further contended by learned counsel for the appellants that even Chander Bhan was deliberately withheld by the respondents as he could have thrown light on the genuineness of the Will. Lastly, it has been contended by learned counsel for the appellants that the Testatrix being a lady of old age was not of sound disposing mind and no evidence of doctor has been brought on record in support of contention by the respondents that the Testatrix was of sound disposing mind.

4. On the other hand, learned counsel for the respondents has stoutly defended the impugned order of grant of letter of administration in favour of the respondents.

5. I have given my careful considerations to arguments advanced by learned counsel for the parties.

6. From the pleadings of the parties, following issues were framed by the Trial Court :-

(1) Whether the Will dated 21.5.1992 propounded by the petitioner is the last Will and testament of late Smt. Krishna Devi widow of late Sh. Pyarelal and if so whether her said Will was validly executed and is genuine or not?

(2) Relief.

7. Coming to the first submission of learned counsel for the appellants to the effect as to whether in view of the pendency of the suit for partition of the property in question it was obligatory on the part of the Trial Court to have stayed the proceedings in the Probate case. In my considered opinion, suit for partition is altogether for a different purpose and exercise of power for Probate is altogether a different jurisdiction. Merely pendency of a suit for partition is no bar for grant of Probate or letter of administration under the provisions of Succession Act.

8. Coming to the next argument of learned counsel for the appellants that the signatures of the Testatrix on Ex. PW1/1 and signatures on the Sale Deed RW1/A are materially different. The Trial Court took into consideration an affidavit marked 'A' which was filed by a witness of the appellants RW. 4 Jagdish Chandra. Mark 'A' was the photo copy of the affidavit of the Testatrix late Smt. Krishna Devi which has been given to Smt. Krishna Devi on 29th June, 1989 and the signatures appearing on the Will Ex. PW 1/1 and the affidavit marked 'A' which was a document produced by the witness of the appellants, it was held by the Trial Court that 'from the bare perusal from naked eye, the signatures are similar'. Therefore, the argument advanced by learned counsel for the appellants that the signatures on the Will Ex. PW 1/1 differs from the signatures on the Sale Deed loses its significance in view of the admitted document produced by the appellants before the Trial Court which had the signatures of deceased Smt. Krishna Devi similar as that of Ex. PW 1/1.

9. With regard to the arguments of health and capacity to make a Will, there was the testimony of PW 4 as well as RW 2 and RW 4. The witnesses of the appellants, while disposing in favour of the appellants, did not state that the Testatrix was suffering from any such serious ailment which might have impaired her mental faculties making her incapable to understand the nature and extent of her disposition. As a matter of fact, it was PW 3 Smt. Raj Minocha was came out with the truth and stated that the testatrix was suffering from minor problems of lever and vomiting but she had no major ailment till she died. In Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee by LRs and others it has been held :-

"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, admitted the contents, the fact that the witnesses to the documents are interested lost significance. The documents at hand were registered and it is 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."

10. In the present case the Will has been registered at the Office of Sub-registrar. I have perused through the original PW 1/1 and I find that after completing necessary formalities, the Sub-Registrar has accepted the registration of the Will.

11. The other argument of learned counsel for the appellants that the advocate Mr. Tuteja who had drafted the Will has not been examined would be a ground which would point out that the Will was not genuine. The law with regard to proof of Will is now well settled. In terms of the Evidence Act, it is necessary to have the testimony of one of the attesting witnesses to the Will who could depose about the execution and attestation of the Will. In the present case both the attesting witnesses have deposed about the execution, attestation and registration of the Will. Inspite of lengthy cross examination, their testimony remained unimpeccable. Merely because a doctor has not been examined or testimony of Chander Bhan was not brought before the Court will not be such circumstances which could lead to the conclusion that the Will was not genuine.

12. In view of the aforesaid discussions, I do not see any merit in the appeal. Same is dismissed with costs.