Delhi High Court
Afzal-Ur-Rehman Khan vs State And Anr. on 25 April, 2008
Author: P Nandrajog
Bench: P Nandrajog
JUDGMENT
Pradeep Nandrajog, J.
1. Learned Counsel for respondent No. 2 has filed in court today a no objection of the respondent No. 2 to the grant of letter of administration with will annexed as prayed by the appellant.
2. The no objection along with the vakalatnama executed by respondent No. 2 in favor of the counsel is taken on record.
3. Vide order dated 10.5.2007 probate petition registered as PC No. 257/06/07 filed by the appellant has been dismissed holding that the appellant has not proved that the will dated 13.2.1998, Ex.PW-1/1, is the last legal and valid testament executed by Late Mst. Khateeja Begum, the mother of the appellant and respondent No. 2.
4. Reason for so holding is that the attesting witness to the will has not spoken a word about the other attesting witness. Learned Trial Judge has opined as under:
PW-1 being the only attesting witness to the will dated 13.2.1998 examined by the petitioner, did not, utter a single word regarding the presence of and putting signature by, the other attesting witness. He also did not say anything regarding the testatrix putting her thumb impression on the will Ex.PW-1/1 in the presence of other attesting witness and, he and the other attesting witness having signed the Will Ex. PW-1/1 in the presence of each other.
5. Suffice would it be to note that proof of execution of un-priviledged wills is as per Section 63 of the Indian Succession Act 1925. Clause C thereof requires that 'a will shall be attested by two or more witnesses, each of whom has seen the testator signed or affixed his mark to the will...but it would not be necessary that more than 1 witness be present at the same time, and no particular form of attestation shall be necessary'.
6. Thus, there is no requirement in law that both witnesses of a will have to be present in the company of each other and both have to see, in the presence of the other witness, the execution of the will by the testator.
7. It is sufficient for the two attesting witnesses to see or be told by the testator of the execution of the will in the absence of each other. There is no requirement of the attesting witnesses to sign as attesting witnesses in the presence of each other. See Smt. Punni v. Sumer Chand.
8. In his testimony PW-1 stated that he knew Khateeja Begum. He identified his signatures at point A on the will dated 13.2.1998. He also identified the thumb impression of Khateeja Begum at point B and C on the will. He stated that the photograph at point D on the will was of Khateeja Begum. He stated that Khateeja Begum was in good health an in a sound disposing mind when she executed the will. He stated that she expired in the year 2002. He also stated that the will was registered. The will was thus exhibited as Ex. PW-1/1.
9. Noting the testimony of PW-1 and the fact and the other attesting witness to the will, Nannu Mal is no longer in the world of the living, I hold that the learned Trial Judge has wrongly returned a finding that will has not been duly proved.
10. The appeal is allowed.
11. Impugned judgment and order dated 10.5.2007 is set aside. Noting that the appellant has not been named as an executor under the will, declining probate as sought for, I grant letter of administration with will dated 13.2.1998 annexed in favor of the appellant.
12. Noting that the sister of the appellant imp leaded as respondent No. 2 has granted no objection to the will and that the appellant is the sole beneficiary under the will I exempt the appellant from furnishing a personal bond or a surety bond.
13. On filing stamp paper of adequate value relatable to the valuation of the property covered under the will the letter of administration would be issued by the learned Trial Judge.
14. No costs.
15. TCR be returned forthwith.
