Pearey Lal vs State And Ors
2010 Latest Caselaw 1218 Del

                                                    UNREPORTABLE

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                           FAO No.407/2007

                                Date of Decision: March 04, 2010


       PEAREY LAL                                 ..... Appellant
                           Through Mr. B.B.Sawhney, Senior Advocate
                           with Ms. Yasmin Zafar, Advocate

                      versus


       STATE AND ORS                            ..... Respondents
                           Through Mr. V.K.Mehra, Advocate


       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the „Digest‟? No

REKHA SHARMA, J. (ORAL)

The appellant had applied for „Letters of Administration‟ in

respect of „Will‟ dated October 17, 1973 executed in his favour by

Hans Ram @ Hans Raj. The learned Additional District Judge who

dealt with the petition has dismissed the same vide her order dated

September 06, 2007 holding that the „Will‟ in question was not duly

executed, in as much as it was not attested by two witnesses as

required by Section 63 of the Indian Succession Act, 1925. It has

been held that one of the alleged attesting witnesses, Shri Krishan Pal

Singh, Advocate was a scribe of the „Will‟ and he had signed the same

only as a scribe and not as an attesting witness. As regards the other

witness Dr. Prem Narain, it has been held that he merely certified

that the testator was in sound health and mental fitness and that he

also had not signed the „Will‟ as an attesting witness. It has been

further held that the „Will‟ has not been proved in terms of Section 68

of the Indian Evidence Act, 1872.

Feeling aggrieved by the finding of the trial Court, the present

appeal has been preferred.

Before I examine the „Will‟ in question so as to ascertain

whether it was attested by two witnesses and whether it was duly

proved, it may be noticed that the testator was a bachelor at the time

of his death and there was no opposition to the grant of „Letters of

Administration‟ in favour of the appellant by the other relatives left

behind by him.

Coming to the „Will‟, a perusal of the same shows that under the

caption „witnesses‟, it is recorded against serial No.1 - "Drafted by

Krishan Pal Singh, Advocate, 1426, Chandni Chowk, Delhi-6", and

against serial No.2 it is recorded, " I have examined Sh. Hans Ram

Executant who is in sound health & mentally fit at the time of

execution of Will" and underneath this writing is the signature of

Dr. Prem Narain, bearing the date October 17, 1973. In view of these

notings, it cannot be disputed that the „Will‟ bears the signatures of

Shri Krishan Pal Singh, Advocate and Dr. Prem Narain underneath the

heading "Witnesses". However, having regard to the findings of the

learned Additional District Judge, what needs to be examined is,

whether Shri Krishan Pal Singh, Advocate signed the „Will‟ as a scribe

only or in a dual capacity both as a scribe and as an attesting witness.

What further needs to be examined, is whether Dr. Prem Narain had

merely certified to the sound health and mental fitness of the testator

or had signed the „Will‟ as a witness too. And for this, one needs to

examine the evidence on record. However, before I do that, it will be

appropriate to refer to a judgment of the Apex Court reported as

Mathew Oommen Versus Suseela Mathew reported in (2006) 1

Supreme Court Cases 519. One of the grounds, on which the „Will‟

before the Apex Court was assailed, was that one of the alleged

witnesses to the „Will‟ was only a scribe of the „Will‟ and not an

attesting witness. The Apex Court dismissed the objection holding as

under:-

"There is no requirement in law that a scribe cannot be an attesting witness. The person concerned has appeared in the witness box as PW.1 and has clearly stated that he is a scribe of the Will as well as he is an attesting witness of the Will. For attestation what is required is an intention to attest which is clear from the statement of PW.1."

In the present case, to prove the „Will‟ Shri Krishan Pal Singh,

Advocate had appeared before the trial Judge as PW.2. He had

deposed that he had signed the „Will‟ as an attesting witness at serial

No.1 and then before the Sub Registrar. He also deposed that he had

signed as an attesting witness to the „Will‟ at points „A‟ & „B‟ and he

identified his signatures at both these places. It may be noted that

point „A‟ is that point on the „Will‟ where, as noticed above, it is

written that, "Drafted by Krishan Pal Singh, Advocate, 1426, Chandni

Chowk, Delhi-6", under the heading "Witnesses" and point „B‟ is the

point where he signed the „Will‟ as an attesting witness before the

Sub Registrar.

The appellant along with the present appeal has filed an

application under Order 41 Rule 27 read with Section 151 of the Code

of Civil Procedure and thereby he has sought to place on record an

additional affidavit of Shri Krishan Pal Singh, Advocate dated

October 16, 2007 wherein the said Shri Krishan Pal Singh has again

stated that he had signed the „Will‟ dated October 17, 1973 of

deceased Hans Ram @ Hans Raj as a scribe and also as an attesting

witness in his presence after he had signed the same. The said

Krishan Pal Singh, Advocate is also present in the Court and he has

affirmed to the contents of his affidavit dated October 16, 2007. As

there is no opposition to the „Will‟ from other legal representatives of

the testator, I take the affidavit of Shri Krishan Pal Singh, Advocate on

record.

In view of the judgment of the Apex Court referred to above

wherein it has been held that a scribe of a „Will‟ can also be a witness

and in view of the evidence of Shri Krishan Pal Singh, Advocate before

the trial Judge and the additional affidavit filed before me, it will not

be correct to say that Shri Krishan Pal Singh, Advocate did not sign

the „Will‟ as an attesting witness and had merely drafted the same.

Hence, I hold that he had not only drafted the „Will‟ but had also

signed the same when it was executed by the testator and presented

before the Sub Registrar for registration.

It is laid down in Section 68 of the Indian Evidence Act, 1872

that to prove a „Will‟, one of the attesting witnesses must appear in

the Court. In so far as Dr. Prem Narain is concerned, he had died

and, therefore, could not be examined as a witness. However, as

noticed above, Shri Krishan Pal Singh, Advocate had deposed before

the trial Court and has also filed an additional affidavit dated

October 16, 2007. In his additional affidavit, he has specifically stated

that after he had signed the „Will‟, Dr. Prem Narain had also

appended his signatures on the same as an attesting witness at serial

No.2 in his presence and in the presence of the testator while also

certifying to the sound health and mental fitness of the testator. I see

no reason to disbelieve the said testimony of Shri Krishan Pal Singh,

Advocate.

For what has been noticed above, I set-aside the judgment of

the trial Court dated September 06, 2007 and hold that the appellant

has successfully proved the „Will‟. Accordingly, I grant „Letters of

Administration‟ to the appellant in respect of the „Will‟ in question

subject to his furnishing valuation certificate from the

Sub-Divisional Magistrate and on paying stamp duty on the same and

also completing the other usual legal formalities.

List before the concerned Registrar for further necessary action

on March 22, 2010.

REKHA SHARMA, J.

MARCH 04, 2010 ka