Dhan Raj Alias Tek Chand & Anr vs State & Others
2008 Latest Caselaw 1681 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Test Cas. No. 47/1988



%                                   Date of decision: 18.09.2008


DHAN RAJ ALIAS TEK CHAND & ANR                    ....... Petitioners
                          Through: Mr N.S. Vashisht and Mr Vishal Singh,
                                   Advocates.


                                 Versus

STATE & OTHERS                                     ....... Respondents
                           Through : None.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     Whether reporters of Local papers may                  Yes
       be allowed to see the judgment?

2.     To be referred to the reporter or not?          Not Necessary

3.     Whether the judgment should be reported         Not Necessary
       in the Digest?


RAJIV SAHAI ENDLAW, J.

1. Probate is sought of a Will dated 7th May, 1964 and

registered with the office of the sub-registrar, Delhi as document

No.68 in book No.3, Volume No.10 at pages 45 to 47 on 12th May,

1964, of one Smt Shimli widow of Shri Lal Singh, resident of village

Madipur, Delhi who died on 10th January, 1973. The said Smt Shimli

was a Hindu. Her husband had pre-deceased her. She left only two

children, namely, two daughters i.e., Smt Kishan Dei and Smt Santra.

The petitioners are the two sons of Smt Kishan Dei daughter of

deceased Smt Shimli. The petitioners alongwith their brother Shri

Dayachand who has been impleaded as the respondent claimed to be

the beneficiaries under the Will of which probate is sought, The

natural heirs of the deceased Smt Shimli, namely, Kishan Dei and

Smt Santra have also been impleaded as the respondents. The

petition was filed after nearly 15 years of the death of Smt Shimli,

stating that the petitioners learnt of the Will only in September 1988

when Shri Mahipal Singh Chauhan handed over the Will to the

petitioners. In compliance of Section 281 of the Indian Succession

Act, affidavit of one of the attesting witnesses to the will was filed

alongwith petition.

2. Notice and citation of the petition was issued. The brother

and mother of the petitioners, impleaded as respondents No.2 and 3

filed their no objections to the grant of probate. The respondent

No.4 Smt Santra filed her objections and to which reply was filed by

the petitioners. Respondent No.4 Smt Santra in her objections did

not dispute the residence of the deceased Smt Shimli at Delhi, did

not dispute the date of demise of Smt Shimli and admitted that Smt

Shimli was a Hindu and left only two natural heirs i.e., her daughters

Smt Kishan Dei (mother of the petitioners) and Smt Santra. It was

further stated that the respondent No.4 Smt Santra though married

was not living with her husband and was living with her mother Smt

Shimli and enjoyed a good relationship with her; that Mr Ami Chand

being the husband of Smt Kishan Dei the other daughter of the

deceased Smt Shimli always had an eye on the property of Smt

Shimli and wanted to grab the said property. It was stated that Smt

Shimli had never executed any Will and the Will dated 7th May, 1964

had been forged and got registered from some lady impersonating to

be Smt Shimli. It was further averred that in the year 1964 Smt

Shimli was too old and mentally weak and was not of sound

disposing mind.

3. The petitioners filed their reply to the aforesaid objections

in which they stated that, in fact, both Smt Shimli and the

respondent No.4 Smt Santra who was separated from her husband

were living in the house of the petitioners only. It was further stated

that Smt Shimli always wanted to leave her properties to the sons of

her daughter Smt Kishan Dei and succession certificate had also

been obtained by Smt Kishan Dei and to which no objection had been

issued by Smt Santra.

4. The following issues were framed on 28th February, 1996:

"1. Whether the deceased Smt Shimli had executed the Will dated 7th May, 1964 while she was in sound disposing mind?

2. Relief."

5. The petitioners examined Shri Prithi Singh s/o Shri Sheesh

Ram as PW1. He deposed that he knew Smt Shimli Devi and that

Smt Shimli Devi had executed a Will in his presence. He further

deposed that he had signed the Will as an attesting witness and

identified his signatures at point "A" on the registered Will Exhibit

PW1/1 and identified the thumb impression of Smt Shimli at point

"B" on the same. He deposed that Smt Shimli had put the said thumb

impression in his presence. He further deposed that Shri Ami

Chand, the other attesting witness, was also present at that time and

he had also signed the will at point "C". He stated that he signed the

Will in the presence of the executor i.e., Smt Shimli and that at the

time of execution of the Will Smt Shimli was of sound mind and good

health. The said witness was cross examined by the counsel for the

respondent No.4 Smt Santra. In cross examination he admitted that

the other attesting witness Shri Ami Chand was the son in law of Smt

Shimli and deposed that Shri Ami Chand had died. He deposed that

the Will was written at Tis Hazari Court and at that time Smt Shimli,

Shri Ami Chand and the witness i.e., Shri Prithi Singh were present.

He further deposed that the Will was written by the deed writer

whose name he did not remember. He denied that Smt Shimli was

not aware of the contents of the Will and also denied the suggestion

that the Will was not read over to her. The said witness could not

depose when the Will was registered. In this regard it may be stated

that the said witness is not a witness to the registration of the Will.

He denied the suggestion that Shri Ami Chand had got the thumb

impression of Smt Shimli. I notice that the suggestions put to the

attesting witness to the Will belie the pleading in the objection that

the Will was got registered from some lady impersonating as Smt

Shimli.

6. That since the aforesaid witness is the only attesting

witness to the Will examined in this case, it has to be seen whether

the Will has been proved or not. Section 63 of the Indian Succession

Act requires the testator to sign or affix his mark to the Will at such

a place that it shall appear that it was intended to give effect to the

writing as a Will. Exhibit PW1/1 is in Urdu language. The thumb

mark identified by alphabet "B" on the same as deposed by PW1

Shri Prithi Singh is at the bottom of the said document, namely, at a

place where the executant of a document normally signs. An English

translation of the Will placed on record and which translation was at

no time challenged by the respondent No.4 also shows the thumb

impression of Smt Shimli at the end of the document. The witness as

aforesaid has deposed to Smt Shimli having affixed her thumb

impression to the document and thus the first requirement of Section

63 is thus fulfilled. The other requirement of Section 63 is that the

Will has to be attested by two or more witnesses, each of whom has

seen the testator sign or affix his mark to the Will and each of the

witnesses should have signed the Will in the presence of the testator.

The fulfillment of the said requirement of Section 63 is also borne

out from the testimony of PW1 which could not be shaken in cross

examination. Thus I find the Will to have been proved in accordance

with law.

7. The petitioners examined as PW2 Mr Ram Narain who

claimed to be knowing the deceased Smt Shimli and deposed that at

the time of her death and before that Smt Shimli was of sound health

and mind. Save for the suggestion that the witness was deposing

falsely, there is no other cross examination by the counsel for the

respondent No.4 of the said witness.

8. The petitioners also examined Mr Mahipal Singh as PW3.

The said Mr Mahipal Singh deposed that the Will had been lying with

him and he handed over the same to the petitioner in the first week

of September, 1998. The said witness was cross examined at length

by the counsel for the respondent No.4 Smt Santra. I do not

consider it necessary to discuss the cross examination of the said

witness inasmuch as the said witness was only to explain the long

lapse of time from demise after which the petition was filed.

However, since there is no prescribed period of limitation for

applying for probate and further in view of registration of the

document being undisputed, the time of presentation of petition is

irrelevant and in the facts is not a suspicious circumstance.

9. Moreover, the respondent No.4 Smt Santra also stopped

appearing in the case and did not lead any evidence and on 27 th May,

2005 the right of the respondent No.4 to lead evidence was closed.

The counsel for the respondent No.4 has also stopped appearing

thereafter. There is thus no evidence to rebut the evidence of the

petitioner.

10. I have already found above the Will to have been proved. In

the absence of any evidence from the respondent No.4 challenging

the sound mind of the deceased at the time of making the Will and on

the evidence led, I also find that the deceased at the time of making

the Will was of sound mind. It cannot also be lost sight of that the

Will was registered. The English translation of the Will filed before

the Court shows the same to be bearing an endorsement of the sub-

registrar, Delhi to the effect that Smt Shimli had been read over and

explained the contents of the Will and that she was identified by Shri

Ami Chand and by Shri Sunder Singh, Advocate and that Smt Shimli

had admitted execution and contents of the Will to be correct. In the

absence of any evidence, there is presumption of the correctness of

the endorsement aforesaid of the sub-registrar in the performance of

his official duties/functions.

11. I also do not find anything unusual in Smt Shimli making a

Will in favour of her grandsons i.e., the sons of her daughter Smt

Kishan Dei. The objections of the respondent No.4 do not state that

the respondent No.4 being the other daughter of Smt Shimli had any

son. The whole purpose of making a Will is to bequeath the property

to some of the natural heirs or to persons other than the natural

heirs. The desire of Smt Shimli to leave her properties to her

grandsons rather than to her daughters is in consonance with the

thinking of the generation to which Smt Shimli belonged and in

consonance with the then times. I therefore decide issue No.1 in

favour of the petitioners.

12. Issue No.1 having been decided in favour of the petitioners

and it having been found that the Will of which probate is sought was

executed by the person by whom it is purported to be executed and

that the same was executed validly and in a sound disposing mind,

the petition is allowed and the probate is ordered to be granted to

the petitioners of the Will dated 7th May, 1964 of Smt Shimli.

RAJIV SAHAI ENDLAW (JUDGE) September 18, 2008 M