S.S. Srivastava vs State And Ors.
2007 Latest Caselaw 219 Del

JUDGMENT

Gita Mittal, J.

1. By this petition under Section 300 read with Sections 276 and 239 of the Indian Succession Act, 1925, Dr. S.S. Srivastava has sought probate of a document asserted to be the last Will and Testament dated 28th August, 1977 purportedly executed by late Shri Ram Singh Srivastava. The petitioner has arrayed his four sisters Mrs. Shashi Srivastava, Ms. Kusum Srivastava, Ms. Suman Srivastava and Mrs. Nayan Srivastava as respondent Nos. 2-5 in the petition. Public notice of the filing of the petition was directed to be published in the Delhi and the overseas edition of `The Statesman' by the order dated 20th December, 1999. On the same date, notice was also ordered to be issued to the Chief Revenue Controlling Authority and the respondents. Such publication was duly effected in the issue dated 8th April, 2000 in the local and overseas edition of `The Statesman'. No objections were filed by the general public, however the respondent No. 2 filed an application being IA No. 434/2001 under Section 282 of the Indian Succession Act, 1925 raising objections to the grant of probate. Replies raising objections to the petition were also filed by the respondent Nos. 2, 3 & 4.

2. The respondent No. 2, Smt. Shashi Srivastava, filed objections to the probate petition setting up a Will dated 28th October, 1987 executed by the Late Shri Ram Singh Srivastava. A photocopy of this Will was placed on record by her. It has been brought on record that the photocopy of this Will was attested by the petitioner as a true copy.

3. The respondent Nos. 3 & 4 also filed similar objections to the probate petition filed by the petitioner submitting that in terms of the Will dated 28th October, 1987 left by the Late Shri Ram Singh Srivastava, the petitioner and the respondent Nos. 2 to 5 were entitled to equal share in the property. It was also asserted that on the request of the petitioner, respondent No. 2 had agreed to relinquish her share in the property in his favor if he shares the property with the remaining sisters in terms of the desires of their late father as expressed in the Will dated 28th October, 1987. The respondent Nos. 3 & 4 also placed reliance on an agreement executed by the petitioner on 12th January, 2000. It has been submitted that on this representation made by the petitioner, the respondent No. 2 had relinquished her share in the property in favor of the petitioner by a deed dated 12th January, 2000. On these pleas, it is contended that the Will dated 28th August, 1977 was false and the probate petition was liable to be dismissed.

4. Respondent No. 5 filed objections to the probate petition submitting that the parents of the parties had died interstate and there was no Will dated 28th August, 1977 as had been relied upon by the petitioner. The respondent No. 5 has submitted that since no Will existed, the estate of their late father had to be partitioned amongst all the legal heirs.

5. On these pleadings, vide order dated 30th September, 2003, the following issues were framed in the matter:

1) Whether the Will dated 28th August, 1977 propounded by the petitioner is the last Will and testament of the late Mr. Ram Singh Srivastava and it had been executed by him in a sound disposing mind and it is a valid Will?

2. Relief.

6. By a subsequent order passed on 25th February, 2004, this Court was pleased to appoint Ms. Rajni Chauhan, Advocate as a local commissioner for recording evidence in the case. It was directed that the examination-in-chief of the witnesses of the parties would be recorded on affidavit while only those witnesses would be summoned whom the opposite parties require for cross-examination. The petitioner was cross-examined by counsel for the respondent Nos. 3 & 4. The petitioner filed his own affidavit dated 7th November, 2003 by way of evidence in the matter and proved the death certificate of his father on 6th November, 1988 and mother on 13th September, 1995. The petitioner proved the Will dated 28th August, 1977 as exhibit PW1/1. In his cross-examination, the petitioner denied writing the letter dated 12th January, 2000 and could not admit or deny on the ground that the same was a photocopy. The petitioner also denied all knowledge of any Will dated 28th October, 1987 and stated that he did not recognise the signature on the photocopy.

7. The respondent Nos. 3 & 4, Ms. Kusum Srivastava and Ms. Suman Srivastava have filed affidavits dated 28th April, 2004 and were also subjected to cross-examination by counsel for the petitioner. The respondent Nos. 3 & 4 have also examined Shri Ravi Shankar Pani as a witness in support of their case who has been cross examined by the petitioner and counsel for the respondent No. 5.

8. I have heard learned Counsel for the parties and have carefully perused the record. I find that the petitioner has filed the present petition seeking probate of a document dated 28th August, 1977 purporting to be the last Will and Testament executed by Shri Ram Singh Srivastava. It has been established in the evidence that late Shri Ram Singh Srivastava was pre-deceased by his wife who expired on 13th September, 1995. Shri Ram Singh Srivastava was the owner of the property No. R-66, Greater Kailash, Part 1, New Delhi-48. He unfortunately expired on 6th November, 1988 at the age of 74 years.

9. Perusal of the record shows that the petitioner has produced the original of the Will dated 28th August, 1977 on the record of the court as Exhibit PW-1. I also find that apart from a self serving statement with regard to the execution of the Will, the petitioner has failed to examine either Mr. D.D. Singh or Mr. N.L. Gupta who have been shown as attesting witnesses on this purported Will of late Shri Ram Singh Srivastava.

10. My attention has been drawn to the fact that the late Shri Ram Singh Srivastava has expired as back as on 6th November, 1988. Late Shri Ram Singh Srivastava was married to Smt. Dhanvati Srivastava who expired on 13th September, 1995 at the age of 79 years. The Will relied upon by the petitioner did not see the light of the day for over ten years. In fact, the petitioner did not assert the existence of such a Will till he sent a legal notice dated 15th March, 1999.

11. By the notice dated 15th March, 1999, the present petitioner through his counsel sought no objection from the respondent Nos. 2 to 5 to the probate of the Will dated 28th August, 1977. No copy of the Will was enclosed. Thereafter, by a corrigendum dated 24th April, 1999, the petitioner sent a copy of the Will with a format of a no objection statement to be executed by the respondents. The respondent No. 5, Ms. Nayan Srivastava, sent a reply dated 26th April, 1999 through her counsel to the notice dated 15th March, 1999 denying execution of the Will dated 28th August, 1977 by the father of the parties and had submitted that the Late Shri Ram Singh Srivastava had died interstate and asserted that she was an heir of her deceased father who was entitled to a share in the property.

12. Ms. Kusum Srivastava, respondent No. 3, sent a reply dated 26th April, 1999 again disputing the execution of the Will dated 28th August, 1977 and asserted that she had an equal share as of the other legal heirs in the estate of the deceased father of the parties. Ms. Suman Srivastava, respondent No. 4, submitted that she had not received the earlier notice dated 25th March, 1999 and was unable to deal with the submissions made there under.

13. So far as the witnesses to the Will are concerned, the Will dated 28th August, 1977 placed on record shows that two persons, namely, Shri D.D. Singh and Dr. N.L. Gupta appear as attesting witnesses. The petitioner has placed a copy of the letter dated 23rd October, 1999 addressed by his counsel to Mr. D.D. Singh requesting him to go through the draft affidavit which he was required to sign as an attesting witness. However, no affidavit of Mr. D.D. Singh has been placed on record.

14. It is noteworthy that so far as the Will dated 28th August, 1987 which has been set up by the respondent No. 2 is concerned, the photocopy of this Will bears the signatures of one Shri Ravi Shankar Pani and Dr. N.L. Gupta. Based on their statement, the respondent filed an affidavit dated 28th April, 2004 of Shri Ravi Shankar Pani wherein he deposed that the Late Shri Ram Singh Srivastava was his neighbour and good friend. He has also deposed that the Will dated 28th August, 1987 was the last Will and Testament of the Late Shri Ram Singh Srivastava and that he was a witness to the execution of the said Will. This affidavit also contains a statement that the Late Shri Ram Singh Srivastava had executed this Will in the presence of the deponent Shri Ravi Shankar Pani as well as Dr. N.L. Gupta who had both signed and attested the Will as witnesses in the presence of each other and in the presence of the testator. The witness had tendered his evidence by way of affidavit before the local commissioner on 20th September, 2006 when he was also cross-examined as permitted by the counsel for the respondent Nos. 4 & 5. This witness submitted that he had not seen the original Will and that his affidavit by way of evidence was signed at his residence and given to the respondent Nos. 3 & 4. The witness also submitted that at the time of preparation of the affidavit, he had been shown only a photocopy of the Will dated 28th October, 1987.

15. The present matter has to be examined in the light of the afore-stated facts. From the aforegoing, it is apparent that the petitioner has placed reliance on a Will dated 28th August, 1977 original whereof has been produced before this Court. However, the petitioner has failed to examine either of the two witnesses on the Will in support of his petition.

16. A Will, in order to be validly executed, is required to be attested by two witnesses who are required to witness the execution of the Will by the testator and are required to affix their signatures as witnesses at the same time in the presence of each other and the testator.

17. The manner in which such document is required by law to be attested is to be proved is provided under Section 68 of the Indian Evidence Act which reads thus:

68. Proof of execution of document required by law to be attested- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least 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.

18. From a reading of the Statute, it is apparent that so far as a Will is concerned, even though the Statute draws an exception that it would not be necessary to call an attesting witness in proof of execution of a document which has been registered in accordance with the provisions of Indian Registration Act, 1908. So far as the Will is concerned, it can be legally proved only if at least one attesting witness is called for the purpose of proving its execution.

19. It is well settled that a document has to be proved by primary evidence. A will being a document has also to be so proved except where the court permits a document to be proved by leading secondary evidence. In a judgment of the Supreme Court reported at B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors. the court noticed earlier judgments and reiterated the stipulation provided in Section 68 of the Indian Evidence Act, 1872 that since a will is required to be attested, it cannot be used as evidence until at least one of the attesting witnesses has been called for the purpose of proving its execution, if there be an attesting witness, and subject to the process of the court and capable of giving evidence. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence.

20. So far as signatures appearing of witnesses on a Will are concerned, in (at page 351) Girja Datt Singh v. Gangotri Datt Singh, the court noticed that neither of the two attesting witnesses were called as a witness to depose to the fact of the attestation. The court held that it could not be presumed from the mere signatures of the two witnesses appearing at the foot of the endorsement of the registration that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. The provisions of Section 68 of the Indian Evidence Act which required the attesting witness to be called as a witness to prove the due execution and attestation of the Will has to be complied with in order that such person be treated as an attesting witness.

21. So far as the Will dated 28th August, 1977 is concerned, the same has been set up by the petitioner. The burden to prove not only the genuineness of the Will but also that the same was actually executed by the testator is cast on the propounder of the Will. (Ref. Dinesh Kumar v. Khazan Singh). The propounder is required to satisfy the conscience of the court that there is no unconscionability about the circumstances in which the Will was created or attested.

22. Again, in H. Venkatachala v. B.N. Thimmajamma, the Apex Court held that the requirements under Section 68 of the Evidence Act are required to be satisfied by the parties who placed reliance on such document in a court of law.

23. The law as has been laid down in Section 68 of the Evidence Act is imperative and requires stringent compliance. In Puramu Singh v. Bharatan, it was held by the court that this statutory provision does not permit use of a document which is required in law to be attested as evidence till such time that the same is proved strictly in accordance with the statutory provisions. There can be no dispute that the Will is required to be attested by two persons.

24. In the instant case, the petitioner has failed to produce the attesting witness as a witness in support of his petition. Undoubtedly, the petitioner has failed to discharge the onus and burden of proof cast on him under Section 68 of the Evidence Act. It is not the petitioner's case that the Will was executed by the Testator in his presence. In any case, the petitioner is not a witness to the execution of this Will. In the light of the principles laid down in the authoritative judicial precedents noticed above, it has, therefore, to be held that he has failed to prove the execution of the Will dated 28th August, 1977 as the last Will and Testament by the Late Shri Ram Singh Srivastava.

25. I find that Along with the petition the petitioner had filed an affidavit dated 4th November, 1999 which purports to have been signed and deposed by Dr. N.L. Gupta who has been reflected as one of the two witnesses of the Will dated 28th August, 1997. Even the filing of this affidavit would not satisfy the requirement in law. Inasmuch as the attesting witness is required to be produced as a witness before the court who would be subjected to cross examination by the respondents and objectors to the petition. In the instant case the parties have been permitted to file the examination in chief of their witnesses on affidavit. However, such witness was required to be tendered for cross examination of the other side. Undoubtedly, even assuming that the affidavit dated 28th August, 1997 of Dr. N.L. Gupta could be treated as his examination in chief before this Court, he was in law required to be tendered for cross examination before such affidavit could be read in evidence. The petitioner has failed to so produce him and consequently the deposition of this person, even though filed in 1999, cannot be read in evidence in the present case.

26. It now becomes necessary to examine the Will set up by the respondents. The respondents set up a Will dated 28th October, 1987. However, they failed to produce the original thereof asserting that the same was in the power and possession of the petitioner. However, the respondents failed to take any steps in accordance with law to cause the petitioner to produce the same. The petitioner, on the other hand, has categorically denied existence of such a Will dated 28th October, 1987 as well as having possession of such a Will.

27. There is no material before this Court which would enable this Court to draw a conclusion that the original of the Will actually existed or is the possession of the petitioner. No efforts had been made on behalf of the respondents to cause the original of this Will to be produced by the petitioner, if it has been in his possession, nor any steps taken to prove the same for leading any secondary evidence in respect thereof in accordance with law. No notice to produce was served by the respondent upon the petitioner nor any application in this behalf filed.

28. At the same time, the respondents have attempted to prove the existence of such a Will by filing an affidavit of Shri Ravi Shankar Pani. Even this witness in his affidavit made a statement to the effect that the photocopy, which has been filed by the respondent, is really a photocopy of the Will which was executed by the Late Shri Ram Singh Srivastava on 28th October, 1987 and that the photocopy produced by the respondent was the one which was actually witnessed by this witness. In his cross-examination he has deposed that he had only seen the photocopy of such Will at the time of signing the affidavit. In these facts, I find that the respondents have failed miserably to prove the existence of the original of the Will dated 28th October, 1987. They have also failed to prove that if the same exists, the same cannot be produced by them.

29. The respondents have failed to prove the photocopy of the Will dated 28th October, 1987 as a true photocopy of the original Will dated 28th October, 1987.

30. In any case, the respondents could have been permitted to prove the photocopy of the document dated 28th October, 1987 only if they established the existence of the original of the document dated 28th October, 1987 and also established that despite best efforts, the original could not be produced by them or that the same was not traceable. From the examination of the record, I find that none of the respondents have ever seen the original of the document dated 28th October, 1987.

31. In this view of the matter, it has to be held that the respondents have failed to prove the execution or the existence of the Will dated 28th October, 1987.

In view of the a foregoing discussion, this petition and IA No. 434/2001 are held to be without merit and is hereby dismissed.