Registrar, University Of Delhi vs State & Ors.
2009 Latest Caselaw 4004 Del

*          HIGH COURT OF DELHI : NEW DELHI

+                      Test Case No.48/1993

%                      Judgment reserved on :         26th May, 2009

                       Judgment pronounced on :       6th October, 2009

Registrar, University of Delhi                          ...Petitioner
                                 Through :   Mr. A.P.S. Ahluwalia, Adv.
                                             with Mr. Tarun Walia, Adv.

                       Versus

State & Ors.                                           ....Respondents
                             Through :       Mr. Sanjay Sood, Adv. for
                                             LRs of Respondent No.7

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                   No

2. To be referred to Reporter or not?                                No

3. Whether the judgment should be reported                           No
   in the Digest?

MANMOHAN SINGH, J.

1. The present probate case has been filed on behalf of

petitioner/Delhi University for grant of probate of Will dated 13th

March, 1974 of the testator, Sh. Roshan Lal. The case of the petitioner

is that late Sh. Roshan Lal was the absolute and exclusive owner of

cottage no. 13, West Patel Nagar, New Delhi (hereinafter referred to as

the „suit property‟) who died at Delhi on 2nd February, 1997. The said

property was the self acquired property of late Sh. Roshan Lal.

2. During his life time, Sh. Roshan Lal approached the

petitioner/University of Delhi and offered to give the said property to

the University by way of Will. He offered that after his death till such

time as his wife was alive, the University would be entitled to rent in

respect of one shop in the said property and that his wife would be

entitled to live in the said property during her lifetime and also to

recover rent which may accrue in respect of other shops in the property.

3. After due discussion with the officials of University, the

deceased Sh. Roshan Lal executed a Will on 13 th March, 1974 in the

presence of two attesting witnesses namely Sh. Madan Lal Kapoor

(other name is not legible) which was duly registered on 16 th March,

1974 thereby bequeathing the said property in favour of the

petitioner/University. It is alleged that the said Will was the last Will of

late Sh. Roshan Lal.

4. After death of Sh. Roshan Lal, Smt. Sita Devi, widow of Sh.

Roshan Lal continued to deposit rent @ Rs.60/- per month in respect of

shop no. 10. The last rent was sent by her on 27th February, 1979. She

continued to enjoy the property as well as the rent of remaining shops in

terms of the Will dated 13th March, 1974. However, the University did

not receive any rent after 27th February, 1979.

5. Smt. Sita Devi died on 12th May, 1992. As per the petitioner,

it then became entitled to the entire said property as well as the rents of

all the shops therein. In the said Will dated 13 th March, 1974, the

Registrar University of Delhi has been named as the sole executer of the

Will and it is thus entitled to obtain probate of the Will.

6. Respondent Nos.2 to 5 are the daughters and respondent

Nos.6 & 7 are sons of late Sh. Roshan Lal. During the pendency of the

case, respondent No.7 also died and his legal representatives have been

substituted in his place. Respondents No.2 to 6 have remained ex-parte

in the case, only respondent No.7 has filed the objection to the grant of

probate.

7. The respondent No.7 has basically raised the objection that

late Sh. Roshan Lal was not competent to make the Will in respect of

the property in question as it was an ancestral property. The respondent

No.7 objecting to the present probate petition submitted that the present

suit property has been allotted to late Sh. Roshan Lal after the 1947

partition by the Ministry of Rehabilitation in lieu of his ancestral

property in Lahore (Pakistan) in India. Sh. Roshan Lal died intestate on

2nd February, 1997 leaving behind respondent Nos.2 to 7 as his class-I

legal heirs.

8. It is contended by respondent no.7 that Sh. Roshan Lal was

basically a diabetic patient and in the year 1964, he had suffered a

heart attack after which his health started deteriorating. It is stated that

the Will left by him besides being invalid in the eyes of law was also

not made in a sound disposing mind. The same is therefore, void ab-

initio.

9. It is also contended that the alleged Will does not mention

the reasons for disinheriting other sons or daughters of the alleged

testator as the relations between them were very cordial. It is urged that

the alleged Will besides being surrounded by suspicious circumstances

suffers from material defects. The alleged Will has neither been

executed as per law as required by Section 63 of the Succession Act,

1925 nor it has been proved as per law as required by Sections 68 and

69 of the Evidence Act, 1872.

10. It is contended that the alleged Will has been attested by

only one attesting witness i.e. Sh. Madan Lal Kapoor at point A of the

Will. There are two signatures at No.1 and 2 but the name and

whereabouts of the persons, who have been allegedly shown to sign as

attesting witnesses are not known. Not even an iota of description of

these two alleged witnesses has been given in the pleadings or in the

evidence. A bare perusal of the alleged Will leaves no ground for

doubt that it has been signed by only one attesting witness.

11. It is argued by the learned counsel for the petitioner that the

probate court has not to determine the title to the property. The court is

only concerned with the legality, validity and the due execution of the

Will.

12. It is submitted that the petitioner/University has successfully

proved on record the Will dated 13 th March, 1974 and it is a legal and

valid Will which was duly executed by late Sh. Roshan Lal in favour of

the petitioner/University. The University is entitled to all rights in the

said property as absolute owner thereof under the said Will.

13. After completing the pleadings, following issues were

framed on 11th October, 2009 :

"1. Whether the deceased Sh. Roshan Lal has duly and validly executed the Will dated 13th March, 1997 ?

2. Relief."

14. After seeing the certified copy, PW-1 Mr. S.K. Verma

confirmed that the Will was registered in the office on 16.3.1974 vide

registration No.598, additional book No.III Volume No.55, bearing

pages 167 to 169.

15. The petitioner/University of Delhi has also produced one Sh.

S.C. Sharma, PW-3 as witness who was the estate officer working with

the University of Delhi and was duly conversant with the facts of the

case. He has proved his authority to make statement as well as the Will

which is Ex. PW1/1. The said witness also produced certain other

documents Ex. CW 3/1 to Ex. CW 3/31 which were the letters written

by Sh. Roshan Lal.

16. He stated that late Sh. Roshan Lal was the absolute owner of

the cottage bearing No.13, West Patel Nagar, New Delhi and the same

was his self acquired property. He made a Will in this respect thereby

bequeathing his property to the University which was executed and

registered with the Sub Registrar on 16.3.1974 vide registration

No.598, additional book No.III Volume No.95, bearing pages 167 to

169. In the cross examination, he made it clear that he does not have

any personal knowledge regarding the abovesaid facts as he obtained

these facts from the judicial record of the case lying with the Delhi

University.

17. PW-2 Sh. Rajinder Lal Kapoor identified the signatures of

his father late Sh. Madan Lal Kapoor which appeared on the original

Will brought by PW -1 in the court and deposed that he had seen him

writing and signing.

18. The respondent No.7 appeared himself as his own witness in

support of his defence and summoned official witnesses to show that

the property in question was an ancestral property. He however, did not

lead any evidence to show that the Will dated 13 th March, 1974 was

not executed by his father or that it was not a valid or property executed

Will. The respondent No.7 examined himself as RW-1 and deposed in

detail that the property in question was an ancestral property therefore

the deceased Sh. Roshan Lal could not have executed any Will with

regard to it. In para 4 of the affidavit, the respondent No.7 had denied

the signatures of the alleged testator and deposed that the alleged Will

is not free from suspicious circumstances. In para 5 and 6 of his

affidavit, he had mentioned that Sh. Roshan Lal was not physically fit

and was not in a sound disposing mind from 1970 till the date of his

demise i.e. 2.2.1997.

19. The LRs of the respondent No.7 filed an application, being

IA No.3288/2009 seeking direction to the concerned department to

trace the file/record and bring it to the Court so that the issue of the

real ownership of the property in question could be decided after

summoning the requisite record. However, despite several attempts,

the concerned department could not bring the summoned record and

ultimately vide its letter dated 8 th February, 2008, it was submitted

before this Court that the summoned record could not be traced. It was

also pointed out by this Court that the court exercising its probate

jurisdiction would not go into the question of title of the property and

that its jurisdiction is confined to consider the genuineness of the Will,

the counsel of the LRs of respondent No.7 did not press for the

application. The Court vide its order dated 30.4.2009 granted liberty to

the LRs of respondent No.7 to agitate the issue of title of the property in

any other appropriate proceedings and accordingly the evidence of the

respondent No.7 was closed.

20. It is argued by learned counsel appearing on behalf of LRs‟

that the petitioner has miserably failed to prove the alleged Will as

required by Sections 68 and 69 of the Evidence Act. None of the

alleged attesting witnesses have been called to prove the genuineness

of the alleged Will which is the mandatory requirement of Section 68.

Moreover, nowhere in the pleadings or in the affidavit has the

petitioner explained the reason for not calling any of the alleged

attesting witnesses.

21. Section 69 deals with the proof of execution of document

required by law to be attested and is applicable where the attesting

witness is either dead or out of the jurisdiction of the court or kept out

of the way by the adverse party or cannot be traced despite diligent

search, by examining witnesses who were able to prove the

handwriting of the testator or executants.

22. No doubt as per law, the onus of proving the Will is on the

propounder and in the absence of suspicious circumstances, proof of

testamentary capacity and the signature of the testator is sufficient to

discharge the onus.

23. Where all the attesting witnesses are dead, a Will can be

proved in the manner prescribed for poof of a document. However, if no

attesting witness can be found, i.e., if he is dead, insane, blind, too ill to

attend, suffering imprisonment, out of the jurisdiction of the court, kept

out of the way by the adverse party or cannot be traced after diligent

search; or if the document purports to have been executed in the United

Kingdom of Great Britain and Northern Ireland, two things must be

proved--(1) the signature of one attesting witness, and (2) the signature

of the executant. They may be proved in the manner indicated in

Section 69 by the evidence of persons who are able to prove the hand-

writing of the attestor and of the executants. Such proof of hand-writing

and signature is considered prima facie sufficient to charge the other

party. This is founded on the rule that on proof of the hand-writing of

the attesting witness, it must be presumed that everything was rightly

done. It is thus clear that in the case of a Will, if the attesting witness

cannot be found, the execution can be proved by examining a witness

who can identify the signature of the attestor.

24. In the case of Vasant Ram Vig and Ors. vs. State, 2007 VII

AD (Delhi) 88 it was held as under :

"Therefore, if a person had seen the testator signing in the Will, as well as he could peak the execution and the attestation of attesting witnesses, are in their hand writings and the signature of the person, who executed the document is in the hand writing of that person. Preciously, this is the procedure adopted by the propounder in this case, speaking the execution of the Will, attestation, etc., not challenged."

25. In the case of R. Vasanthi vs. Janaki Devi, (1993) 3 CTC

378 it was held that if none of the attesting witnesses are available,

witness identifying signature of attestor may be examined under Section

69. Evidence of identifying witness has to be taken as valid execution

and attestation.

26. In the case of Mohd. Mohideen vs. Muthukumara Thevar,

(1997) 2 CTC 369 it was held that Will can be proved by examining

scribe if both attesting witnesses are not available.

27. As regards the contention of respondent No.7 that the

testator has no right to deal with the property as it is an ancestral

property, it is clear that in the probate proceedings, the court was

required only to decide as to whether the testator had executed the Will

in question and, if so, to grant probate/letters of administration in that

behalf. The purpose of probate proceedings is to find out whether Will

in question, which is projected, is the last Will of the testator and validly

executed. It is settled law that the probate court does not decide any

question of title or of the existence of the property itself.

28. On the other hand, respondent No.7 in cross examination

deposed that he has not filed any document/medical paper to show that

his father was not of a sound and healthy mind when the Will was

executed by him. He identified the signatures of his father, Sh. Roshan

Lal who was residing in Lahore prior to the partition of India. It is also

a matter of fact that the respondent No.7 had failed to prove that the

Will was a forged document nor it was proved by respondent No.7 that

late Sh. Roshan Lal had been given the suit property after partition in

lieu of his ancestral property in Lahore or that he died intestate or was

not competent to make the Will.

29. I find no merit in the contentions of the objector. In my view,

the Will was validly executed and registered. PW-3, Sh. Rajinder Lal

Kapoor has identified the handwriting and signature of his father, Sh.

Madan Lal Kapoor who was one of the attesting witness of the Will.

Registeration of the Will was also proved by the testimony of PW-1 and

PW-3. Therefore, there can be no doubt regarding the genuineness of

the Will.

30. The petition is allowed. The petitioner is granted probate of

the Will dated 13th March, 1974 subject to the petitioner filing

necessary court fees on the value of the immovable property as stated in

the Will. The letter of probate therefore, be issued to the petitioner on

filing a surety bond and necessary court fees. The petition stands

disposed of.

MANMOHAN SINGH, J OCTOBER 6, 2009 nn