Delhi High Court
Shama Sethi vs State & Others on 21 January, 2010
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 21.1.2010
+ TEST CAS.No.35/1999
SHAMA SETHI ......Petitioner
Through: Mr. Anil K. Kher, Senior
Advocate with Mr.Rishi
Manchanda &
Mr.S.S.Pandit, Advocates.
Versus
STATE & OTHERS .......Respondents
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporter or not?
Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This is a petition under Section 276 of the Indian Succession
Act for grant of probate of the Will of late Sh.Din Dayal Kaicker.
Sh.Din Dayal Kaicker had died on 22.12.1985. Petitioner is the
daughter of the deceased and she is seeking a probate of the Will
dated 18.9.1978 duly registered with the Sub-Registrar.
2. The details of the property of which probate is sought are
mentioned herein as follows:
A. House No.C-155, Greater Kailash Part I, New Delhi.
B. 1/3rd share in Commercial Building No.AB-4,
Safdarjang Development Scheme, Near Kamal Cinema,
New Delhi.
C. 1/2 share in Dakhanwali Building, Bazar Mandi,
Faridabad comprising Six shops.
D. 1/2 share in property known as Nauhra, Faridabad.
E. 1/6th share in Residential House at Mohalla Khatriwala,
Faridabad.
3. The properties detailed as item C, D and E were not available
at the time of death of the testator.
4. The beneficiaries as per the Will are the petitioner and
respondent no.11 Smt.Madhu Narang both of whom are the
daughters of the deceased.
5. The Will states that the petitioner is the executor of the Will
of the said property both movable and immovable.
6. The respondents herein are the other legal representatives of
the deceased. Respondent no.2 is the daughter-in-law;
respondents no.3 to 7 are the sons and respondents no.8 to 11 are
the daughters of the deceased.
7. The wife of the deceased had died on 25.5.1991.
8. After notice to the respondents, respondent no.4, 7 and 9 had
filed their respective objections contesting this petition. All the
aforestated objectors had admitted to the execution of the Will
dated 18.9.1978 by their deceased father but had countered this
Will by submitting that pursuant to the Will a family settlement had
been arrived at between the parties dated 22.8.1990 which
superseded the Will of the deceased and the properties of the
deceased have to be divided in terms of the aforestated family
settlement.
9. On 17.5.2006, the following issues were framed:
1. Is the petitioner entitled to grant of probate of the Will dated
18.9.1978?
2. Were there family settlements on 22.8.90 and 31.3.98?
3. Does the family settlements on 22.8.90 and 31.3.98 stand in
the way of the grant of probate?
10. On 13.10.2006 issues no.2 and 3 relating to the family
settlement had been deleted. Court had held that the issue
relating to the title of the property stated to be belonging to the
deceased could not be gone into in a petition under Section 276 of
the Indian Succession Act.
11. The only issue which remained for adjudication was issue
no.1. The parties had led evidence by way of affidavits. Objector
no.4 did not support his objections with any evidence; he did not
file any evidence by way of affidavit; Objector no.7 and 9 had filed
evidence by way of affidavit. On 15.12.2009, objector no.7 had
made a statement on oath in court that he has no objection if the
probate of the Will is granted.
12. Evidence of Objector no.9 only remains to be considered by
this court. None has appeared for Objector no.9 today.
13. Arguments have been heard. Record has been perused.
14. Findings of this court on only issue to be adjudicated is as
follows:
ISSUE NO.1
15. Petitioner Shama Sethi had reiterated averments made in
the petition. It is reiterated that she has filed the petition for grant
of probate of the Will dated 18.9.1978 of her deceased father Din
Dayal Kaicker. The Will has been exhibited as Ex.P-1. It has been
reiterated on oath that this Will was duly registered. The death
certificate of the testator has been proved as Ex.P-2 showing his
date of death as 22.12.1985. Death certificate of the wife of the
deceased namely Nand Rani showing her date of death as
25.5.1991 is Ex.P-3. It has been reiterated that testator had
bequeathed all his assets in favour of his wife Nand Rani and after
her death to the petitioner and respondent no.11. It has been
deposed on oath that the petitioner is a resident of United States
of America and in spite of best efforts she has not been able to
trace out the whereabouts of the attesting witnesses to the Will i.e.
R.Lakshminarasimhan and G.L.Kashyap. In her cross-examination
she has stated that the said attesting witnesses were working
somewhere in the Ministry of Government of India. She had
visited the Ministry of Agriculture and CPW department for the
said purpose but the whereabouts of the said witnesses could not
be traced.
16. The evidence led by Objector no.9 is the affidavit of Objector
no.9 who has been arrayed as RW-2. She has stated that pursuant
to the family settlement dated 22.8.1990 entered into between the
family members the probate of the Will of her father dated
18.9.1978 cannot be granted. She has however nowhere disputed
the execution of the said Will by her father. In her cross-
examination she has admitted that her father Din Dayal Kaicker
had executed this Will. On 18.9.1978 she has reiterated that the
probate of the Will cannot be granted in view of aforestated family
settlement.
17. It is well settled proposition of law that in a petition for grant
of probate the court only has to see as to whether the testator had
in fact made the Will voluntarily and of his own volition; it was a
genuine document, properly executed and attested as per law and
the testator at the time of executing the said Will had the capacity
to execute it. The petition under Section 276 of the Indian
Succession Act cannot go beyond this. It is not within the scope of
such a petition to go into the subsequent family settlement or
arrangement.
18. In this case Objector No.9 is the only contesting objector.
She has however admitted the execution of the Will dated
18.9.1978 by her deceased father. All the legal heirs have in fact
admitted this document.
19. There is no dispute that this Will had in fact been executed
by the deceased Din Dayal Kaicker bequeathing his property both
movable and immovable in favour of his wife Nand Rani and after
her demise to the petitioner and respondent no.11. Both the
attesting witnesses in spite of best efforts could not be traced.
20. Under Section 281 of the Indian Succession Act, the affidavit
of an attesting witness is required in cases of petition for probate.
If such evidence is not available, the court will require due
execution to be proved. A division bench of the Kerala High Court
in Thaiullothil Kunhikaman v. Kalyani AIR 1990 Ker 226 has taken
a view that under the amended Section 68 of the Evidence Act in
case of registered wills it is not necessary to call an attesting
witness, unless its execution is specifically denied. It was held
that Section 68 of the Evidence Act relates to those documents
which are required to be proved at a trial of a suit. If in any rule of
law or of pleadings such proof is not required, Section 68 cannot
operate to insist on a formal proof by calling an attesting witness.
Section 58 of the Evidence Act read with Order 8 Rule 5 of the
CPC shows that such proof can be dispensed with; examination of
an attesting witness is therefore unnecessary when the parties
have not joined issue on the validity or the genuineness of the Will.
21. In Balwant vs. Mainabai AIR 1991 MP 11, it has been held
that where the attesting witnesses to a Will could not be produced
as they were not alive, the Will can certainly be proved in the
manner provided for a proof of a document.
22. The present petition has been filed in the year 1995. The
petitioner has sought probate of a Will dated 18.9.1978. Testator
had died on 22.12.1985. Petitioner has explained that she is
ordinarily a resident of USA; on one of her visits to India in 1980
she learnt about the dispute inter se between her brothers with
regard to the property left by her deceased father; she engaged
the services of an advocate and obtained certified copy of the Will
from the office of the Sub-Registrar wherein it was revealed that
the entire property of the deceased both movable and immovable
had been bequeathed to Smt.Nand Rani his wife and on her
demise to the petitioner and respondent no.11. The petitioner
requested the other LRs to abide by the wishes of her deceased
father. It was only thereafter that the present petition was
preferred by her.
23. In Kunwarjeet Singh Khandpur v. Kirandeep Kaur & Ors. AIR
2008 SC 2058 it has been held by the Supreme Court that an
application for grant of probate is only a permission which is
sought for the purpose of a legal duty which has been created by a
Will or for recognition as a testamentary trustee and is continuous
right which can be exercised any time after the death of the
deceased as long as the right to do so survives and the object of
the trust exists or any part of the trust, if created, remains to be
executed. Bar of limitation is not attracted.
24. The Will of the deceased has been duly proved. The petition
has been preferred by the executor of the Will; there appears to be
no impediment legal or otherwise in granting the present petition.
The valuation report of the Valuator dated 8.10.2001 is on record.
Accordingly, the probate of the Will dated 18.9.1978 is granted as
per Schedule VI of the Indian Succession Act. Administration bond
and surety bond be executed.
(INDERMEET KAUR)
JUDGE
JANUARY 21, 2010.
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