Mrs. Pamela Singh vs State And Anr.
2006 Latest Caselaw 158 Del

JUDGMENT

Sanjay Kishan Kaul, J.

Page 0484

1. The petitioner has filed this probate petition under Section 276 of the Indian Succession Act, 1925 for grant of probate of the last Will and testament of late Mrs E. J. Browne dated 18.08.1986. The deceased was a Page 0485permanent resident of Delhi and passed away on 28.03.1995 leaving behind the petitioner and respondent no.2 as the legal heirs being the daughter and son respectively.

2. The details of the property have been set out in Annexure C to the petition and basically consists of property bearing no.251, Sukhdev Vihar, New Delhi constructed on a plot of land measuring 300 square yards apart from the household articles. Objections were filed by by respondent no.2 and issues were framed on 14.02.2000, which are as under:

1. Whether Mrs. E.J. Browne was not in a proper state of mind at the time she executed a will dated 18th August, 1986? and that the same was procured by fraud? OPD.

2. Whether any power of attorney was ever executed by the petitioner in favor of Mr. Benson Augustine.

3. The petitioner has appeared in the witness box as PW1 while one of the attesting witness. Mr.Benson Augustine appeared as PW2. Respondent no.2 appeared in the witness box himself and one Mr Rajinder Singh Jaggi appeared as RW2.

4. The matter was on board for final hearing, but none appeared for the respondents. The arguments were concluded by learned counsel for the petitioner on 23.01.2006, but in view of the absence of respondent no.2, adverse orders were deferred till today. The matter was called over once and passed over. On both occasions, none appeared for respondent no.2. Thus I proceed to decide the petition in the absence of respondent no.2 as the pleadings, documents and the evidence is available on record. ISSUE NO.1

5. The first issue arises from the objections filed by respondent no.2. A perusal of the objections shows that the respondent no.2 has taken a stand that the testator was not in a fit mental condition to execute the Will of which probate is sought and that the Will had been procured by fraud as a result of collusion between the petitioner and the attesting witness. It may be noticed that the Will is a registered Will. It is stated that the Will was executed on 18.08.1986 when the testator had been impaired of the motor function of nerves causing immobility and was very feeble and ill and was not in a state of mind to have executed the Will, which is now sought to be probated. It is necessary to note that the testator had initially executed a Will dated 04.04.1984 bequeathing the share in the property in two equal shares to the petitioner and respondent no.2. This was superseded by another Will dated 29.11.1985 in terms whereof respondent no.2 became the sole beneficiary of the property in question. The last Will and testament is dated 18.08.1986 in terms whereof once again the petitioner and respondent no.2 are beneficiaries in equal shares. Equal share has been given in the land, but the constructed portion has fallen to the share of respondent no.2.

6. The petitioner has appeared as PW1 and has substantiated what has been averred in the plaint. In her cross examination, she has denied the suggestion that she had separated from her family, or that, she had gone out of India contrary to the wishes of the testator, her mother. She has stated Page 0486that the testator was in sound disposable mind and that she came to know about the Will when she visited the testator in 1989. The Will is stated to have been sent by post to the petitioner. The attesting witness Mr.Benson Augustine appeared in the witness box as PW2 and stated that he was present at the time when the testator executed the Will and that the testator signed in his presence and in the presence of the other attesting witness and both the witnesses signed in the presence of the testator and in the presence of each other. The witness has also stated that the testator was in sound health. The witness has further stated that Mr. K.S. Uthawal was not present at the time of execution of the Will, but had signed the Will earlier as a witness. Since he could not be present on that date, his name was deleted. The witness has denied the suggestion that the right side of the testator was affected in a paralytic attack. On the other hand, it is stated that her left side was affected.

7. The aforesaid shows that the testimony of the attesting witness in accordance with law is available and nothing useful has come out in the cross examination. The onus in respect of issue no.1 was placed on the defendant in view of the specific plea raised. The respondent no.2 has examined no doctor who had ever attended to the testator, who could state that the testator was not in a sound disposable mind or that she was not in a position to execute the Will.

8. Respondent no.2 has appeared as RW-1 and has referred to the execution of the earlier Wills in his affidavit. He has alleged that the petitioner was separated from the family and that during that period of time had become close to the attesting witness who had only assisted the petitioner. The witness has affirmed to the fact that both he and his wife were working and that they spent the monies for construction apart from giving money to his mother, the late testator.

9. In cross examination, respondent no.2 has admitted that the testator contributed for construction of the house partially and the remaining amount was spent by him. He has however admitted that the petitioner used to visit them and stay with them as and when she visited India. On a specific question being posed as to whether he had any documentary evidence to show that in July, 1986 the testator was attended to by a number of doctors, the witness has stated that he did not remember the name of the doctor but that the testator was going to the hospital and doctors were giving prescriptions which were available with him.

10. The second witness to support the case of the respondent is RW-2-Mr R.S. Jaggi. Mr. Jaggi has stated that he is a friend of respondent no.2 and has studied with him. The cross examination of the said witness makes an interesting reading as he has stated that the information is derived from respondent no.2 about the medical condition of the testator. He was unable to state the name of the doctor who attended to the testator. Not only that the witness has stated that he was visiting the family regularly till 1979, but after 1979 he was not a frequent visitor of respondent no.2. He has denied personal knowledge about the personal life of the petitioner and has stated that whatever he has stated in the affidavit is on the basis of what was told Page 0487to him by respondent no.2. The witness states that he did not visit the testator when she possibly suffered a stroke in 1986, and last visited her two years before her demise. He, however, has stated that the testator recovered a lot but was not able to walk without support and that he never attended to the testator when she was seriously ill. The witness goes on to state that only a doctor can state about the mental fitness of the testator.

11. A reading of the testimony of respondent no.2 shows that it is not even worth the paper on which it is recorded. The complete testimony is based on information received from respondent no.2. The witness never had an opportunity to judge the mental fitness of the testator nor was he a frequent visitor to her house at the relevant stage of time. No credibility can be attached to the testimony of the said witness.

12. In view of the aforesaid, I am of the considered view that the respondent no.2 has failed to discharge the onus in respect of the issue and has not been able to substantiate that the testator was not in a fit mental condition to execute the Will which was duly registered. The issue is answered against respondent no.2. ISSUE NO.2

13. The second issue arises on account of the fact that a power of attorney was executed by the petitioner for filing certain applications. Insofar as the main petition is concerned, the same has been instituted by the petitioner. I thus see no purpose or ramification of this issue insofar as the grant of probate is concerned. RELIEF

14. In view of the aforesaid finding, the petitioner is entitled to the grant of probate of the last Will and testament of the late Mrs E J Browne dated 18.08.1986. The petitioner shall also be entitled to costs. The probate be issued on the requisite stamp duty being filed by the petitioner after the verification from the competent authority of valuation as on the date of institution of the petition.