Smt. Anita Khosla vs State & Ors.
2010 Latest Caselaw 4874 Del

        THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Reserved on: 20.10.2010
                       Judgment Pronounced on: 21.10.2010

+          TEST CASE NO. 41/2005 & I.A. No.8309/2005

SMT. ANITA KHOSLA                            ..... Petitioner

                             - versus -
STATE & ORS.                                ..... Respondents

Advocates who appeared in this case:

For the Petitioner      : Mr R. Vasudevan
For the Respondents     : Mr Hari Chand

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in Digest? Yes

V.K. JAIN, J

1. This is a petition under Section 276 of the Indian

Succession Act for grant of probate in respect of the Will of

late Smt. Lalita Kapoor. It has been alleged in the petition

that late Smt. Lalita Kapoor, who expired on 15th July,

2004, had left behind a Will dated 02nd April, 2003, that

being her last Will and Testament, which was duly

registered in the office of Sub-Registrar . The petitioner is

the daughter of the deceased, respondent No.2 Narinder

Kapoor is the son of the deceased and respondent No.3 and

respondent No.4 are the widow and daughter respectively of

late Shri Rakesh Kapoor, another son of the deceased

Testator.

2. On publication of citation in the newspapers and

issue of notice to the respondents, objections were filed by

respondent Nos. 3 and 4. It was alleged in the objections

that Smt. Lalita Kapoor had no right, title or interest in any

part of property No. 163 Golf Links, which is the subject

matter of the Will, alleged to have been executed by her and,

therefore, she had no power of disposition with respect to

that property. It was claimed that late Shri C.L. Kapoor,

husband of late Smt. Lalita Kapoor, was the owner of the

aforesaid property, till his demise. The objectors denied

execution of the Will dated 02nd April, 2003 and claimed the

same to be a forged document.

Respondent No.2, however, stated that property

No.163 Golf Links was partitioned between late Shri C.L.

Kapoor and late Smt. Lalita Kapoor and under that

partition, the ground floor alongwith one servant quarter fell

to the share of late Smt. Lalita Kapoor, whereas the rest of

the property fell to the share of late Shri C.L. Kapoor. He

also admitted that late Smt. Lalita Kapoor died on 15th July,

2004, leaving behind the Will dated 02nd April, 2003,

bequeathing her share in property No.163 Golf Links to her

daughter Anita Khosla.

3. The following issues were framed on the pleadings

of the parties:-

1. Whether the „Will‟ dated 02nd April, 2003 is the

validly executed and last „Will‟ of late Smt. Lalita

Kapoor? OPP

2. Whether the plaintiff is liable to be granted probate

of the „Will‟ dated 02nd April, 2003? OPP

3. Relief.

4. The petitioner examined six witnesses in support of

her case. No witness was examined by the objectors.

Issue No.1

5. The execution of an unprivileged Will is covered by

Section 63 of Indian Succession Act, which reads as under:-

"Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1[ or an airman so employed or

engaged,] or a mariner at sea, shall execute his will according to the following rules:--

(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

6. PW-2 Shri Rajiv Mathur and PW-3 Devender

Kumar Sharma are the attesting witnesses of the Will

Ex.PW-1/1, set up by the petitioner. Shri Rajiv Mathur

stated that he had cordial relationship with the family

members of Shri C.L. Kapoor and that Smt. Lalita Kapoor

had informed that she was executing a Will. She required

his presence as a witness and asked him to be present at

the office of Sub-Registrar at Vikas Sadan, New Delhi in the

morning of 02nd April, 2003. When he arrived at the office

of Sub-Registrar at Vikas Sadan, Smt. Lalita Kapoor was

already present with a typed Will in her hand. One person

Shri Devender Kumar Sharma, who was already present,

was introduced to him and he was informed that Shri

Devender Kumar Sharma is the second witness of the Will.

Late Smt. Lalita Kapoor signed the Will Ex.PW-1/1 first in

the presence of both of them. Thereafter, it was signed by

Shri Devender Kumar Sharma followed by signing by him.

According to the witness, thereafter, he appeared before the

Sub-Registrar where his signature and thumb impression

were obtained at the back of the Will Ex.PW-1/1. He

identified the signature of Smt. Lalita Kapoor at point „A‟

and „B‟ and his own signature at point „C‟ on the Will

Ex.PW-1/1. He also identified his signature and thumb

impression at point „D‟ on this document. He further stated

that at the time of the execution of the Will Ex.PW-1/1 on

02nd April, 2003, late Smt. Lalita Kapoor was healthy and

mentally fit and told him that she was executing a Will of

her own free will.

7. Smt. Devender Kumar Sharma, who came in the

witness box as PW-3, corroborated the deposition of PW-3

and stated that he had come to know late Colonel S.C.

Malik, younger brother of late Smt. Lalita Kapoor when he

was working in Army Headquarters. He, therefore, had

occasion to meet Smt. Lalita Kapoor as well. Shri S.C.

Malik informed him on telephone that Smt. Lalita Kapoor

wanted to execute a Will and since she needed a witness he

had suggested his name, he being a Government servant.

He agreed to attend the office of Sub-Registrar for this

purpose. When he arrived at the office of Sub-Registrar, he

met Smt. Lalita Kapoor, who was already present there and

had a typed Will in her hand. According to the witness,

Smt. Lalita Kapoor signed the Will first in their presence

then it was signed by Shri Rajiv Mathur and thereafter by

him. He also stated that thereafter they appeared before the

Sub-Registrar for registration of the Will and his signature

and thumb impression were also obtained at the back of the

Will. This witness also identified the signatures of Smt.

Lalita Kapoor at point „A‟ and „B‟ on the Will Ex.PW-1/1. He

also identified his own signature at point „E‟ and her

signature and thumb impression at point „F‟. He also

confirmed that at the time of the execution of the Will on

02nd April, 2003, Smt. Lalita Kapoor was healthy and

mentally fit.

8. PW-4 Shri Vipin Mehra is the Government

approved valuer, who valued the jewellery of deceased Smt.

Lalita Kapoor vide his report Ex.PW1/5. His testimony is,

therefore, not relevant to execution of the Will. PW-5 Shri

E.Dean is the Manager with the Delhi Safe Deposit

Company Limited, who produced the record of Locker

No.2384-C, which is Ex.PW-5/1. The locker was in the joint

name of Late Shri C.L. Kapoor, Smt. Lalita Kapoor and Mr

Naraind Kapoor.

9. PW-6 Shri Sunil Srivastva is an official of Sub-

Registrar-VII, Vikas Sadan, New Delhi. As per the record

produced by him, one Will, executed by Smt. Lalita Kapoor,

was registered on 02nd April, 2003 vide Registration No.46 in

additional book No.3, Vol. No.341 on pages 27 & 28.

Ex.PW-1/1, according to the witness, is that Will.

10. PW-1 Smt. Anita Khosla is the petitioner before

this Court. She also has identified the signature of her

mother late Smt. Lalita Kapoor at point „A‟ and „B‟ on the

Will Ex.PW-1/1.

11. During cross-examination of PW-2 Shri Rajiv

Mathur, no suggestion was given to him by the objectors

that the Will Ex.PW-1/1 does not bear signature of late Smt.

Lalita Kapoor. No suggestion was given to him that the

photograph, affixed on the Will Ex.PW-1/A, is not that of

Smt. Lalita Kapoor. No suggestion was given to him that

late Smt. Lalita Kapoor was not in a fit state of health and

mind when she executed the Will Ex.PW-1/A. No

suggestion was given to him that he had not signed the Will

Ex.PW-1/1, as an attesting witness. In fact, no infirmity, in

the testimony of this witness, was pointed out by the

learned counsel for the objectors. Similarly, during cross-

examination of Shri Devender Kumar Sharma, no

suggestion was given to him that the Will Ex. PW-1/1 does

not bear signature of Smt. Lalita Kapoor at points „A‟ and

„B‟. No suggestion was given to him that the Will Ex.PW-

1/A was not signed by him as an attesting witness and/or it

does not bear his signature and/or thumb mark. No

suggestion was given to him that he did not appear before

the Sub-Registrar on 02nd April, 2003.

The testimony of PW-3 was assailed by the learned

counsel for the objectors on the sole ground that he was

requested by the brother of the deceased and not by the

deceased herself, to be a witness of her Will. This, to my

mind, was absolutely immaterial. The witness has

specifically stated that on account of his friendship with

Colonel S.C. Kapoor, he had also come to know late Smt.

Lalita Kapoor and also had occasions to meet her. He being

a Government servant there was nothing unusual or

suspicious in the Testator, requesting him through her

brother, to be an attesting witness to her Will.

12. It was contended by the learned counsel for the

objectors that since PW-2 and PW-3 did not sign in the

presence of each other, there was no proper execution of the

Will. I, however, find no merit in the contention. The

evidence on record does not show that PW-2 was not

present when the Will was attested by PW-3 or that PW-3

was not present when it was attested by PW-2. In fact, their

affidavits indicate that both of them were present together

when the Will was first signed by the Testator and then by

these witnesses. Moreover, a bare perusal of Section 63(c)

of Indian Succession Act would show that a Will is required

to be attested by two or more witnesses and each of them

must have seen the Testator sign or affixing his mark to the

Will or should have seen some other person signing the Will

in the presence and under the directions of the Testator or

should have received a personal acknowledgement from the

Testator with respect to his signature or mark or signature

of the another person who signs the Will in the presence

and under the direction of the Testator and it is also

necessary that each witness should sign the Will in the

presence of the Testator. This, however, is not the

requirement of law in India that both the attesting witnesses

should also sign in the presence of each other.

13. Though the English law requires that both the

witnesses must be present at the same time and both must

see the Testator execute the documents as his Will, the

Indian law expressly lays down to the contrary by providing

in clause 6(c) of Section 63 that "it shall not be necessary

that more than one witness be present at the same time." In

fact, it is also not necessary that all the witnesses must see

the Testator sign. It may as well happen that one witness

may see the executor sign and the other witness may not

see him sign, but the Testator may acknowledge his

signature before him.

14. There are number of modes of proving signature or

writings of persons, such as, by calling the person who

signed or wrote the document; by calling a person in whose

presence the document was signed or written; by calling a

handwriting expert; by calling a person acquainted with the

handwritings of the person by whom the document is

supposed to be signed or written; by comparison in Court of

the disputed signatures or writings with some admitted

signatures or writings; by proof of an admission by the

person, who is alleged to have signed or written the

document that he signed or wrote it, etc.

In case the document happens to be a Will, there is

a slight distinction, which has to be kept in mind. Unlike

other documents, the Will speaks from the death of the

Testator, and so, where it is propounded or produced before

a Court, the Testator who has already departed the world

cannot be called upon to say whether it is his will or not.

15. Section 68 of Evidence Act, to the extent, it is

relevant, provides that if a document is required by law to

be attested, it shall not be used as evidence until at least

one attesting witness has been called for the purpose of

proving its execution if there be an attesting witness alive,

and subject to the process of the Court and capable of

giving evidence." Since the Will is a document required by

law to be attested by at least two witnesses, the petitioner

could have proved it by producing one of the attesting

witnesses of the Will. The petitioner has duly proved

execution of the Will dated 02nd April, 2003, by producing

not one, but both the attesting witnesses to the Will.

16. In „Madhukar D. Shende vs Tarabai Aba

Shedage‟ 2002 (2) SCC 85 Supreme Court inter alia

observed as under:-

"It is well settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the Court would not return a finding of „not proved‟

merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance."

17. In „Girja Datt Singh vs Gangotri Datt Singh‟ AIR

1955 SC 346, it was held that in order to prove the due

attestation of the will the propounder of the will has to

prove that the two attesting witnesses saw the Testatory

sign the will and that they themselves signed the same in

the presence of the testator. As regards the proof and

attestation, reference was made to Section 68 of the

Evidence Act and it was held that it is necessary to comply

with the provisions of the Evidence Act to prove the due

execution and attestation of the will by calling at least one

attesting witness in case he is alive and one cannot

presume from the mere signatures appearing at the foot of

the endorsement of registration or at the foot of the

document that the witnesses appended their signatures to

the documents as attesting witnesses.

18. In the present case, the petitioner has discharged

the onus placed upon her by producing evidence to prove

the testamentary capacity of the testator as well as

execution of the Will in the manner prescribed by Section

63 the Indian Succession Act. No material has been

brought on record by the Objectors which would create

suspicion on the execution of the Will, which otherwise is a

registered document and also bears the signature of the

testators. There is no material from which the Court may

infer that the deceased did not know the contents of the

Will or was not in a sound disposed capacity when she

executed this Will on 2nd April 2003. In fact, no evidence at

all has been produced by the Objectors to rebut the

evidence produced by the petitioner.

19. The testimony of PW-2 and PW-3 shows that the

Will Ex.PW 1/1 was signed by late Smt Lalita Kapoor of her

own free will and that at the time of signing the Will on 2 nd

April 2003, she was in a sound and disposing state of

mind. In fact, the deceased-testator expired more than one

year after she had executed the Will and got it registered.

The Will admittedly bears the photograph of late Smt. Lalita

Kapoor. It was also duly registered with the Office of

Registrar on the same day and the registration has been

confirmed by an official from his office. The petitioner has,

therefore, fully discharged the onus placed on her with

respect to due attestation and proof of the Will.

20. Though the objectors have claimed that late Smt.

Lalita Kapoor did not have any right, title or interest in

property No. 163 Golf Links and, therefore, had no power of

disposition in respect of that property, no issue on this plea

has been framed and rightly so. In a petition for grant of

probate, the Court is not concerned with the title of the

Testator with respect to the property bequeathed by

him/her. What the Court has to see whether the Will was

duly executed and whether its execution has been proved in

accordance with law or not. Obviously, if Smt. Lalita

Kapoor herself did not have any right, title or interest in the

property, subject matter of the Will executed by her, the

legatee will not derive any right, title or interest in that

property, on the basis of such a Will. If the Testator had an

interest less than that claimed by her in her Will in respect

of a property, the legatee will get only that much interest as

was vested in the Testator, with respect to that property. A

perusal of the order dated 27th February, 2008 would show

that at the time of framing of issues, the learned counsel for

the objectors did not press the objection with respect to the

alleged partition of the property.

21. In view of my finding on issue No.1, the petitioner

is entitled to grant of probate in respect of the Will executed

by late Smt. Lalita Kapoor on 02nd April, 2003.

22. The petition is hereby allowed. A probate of the

Will executed by late Smt. Lalita Kapoor on 02nd April, 2003

be, therefore, issued to the petitioner under Section 276 of

Indian Succession Act with copy of the Will annexed to it.

(V.K. JAIN) JUDGE

OCTOBER 21, 2010 BG/AG/RS