C.K. Sucharita vs State Of Delhi
2011 Latest Caselaw 2108 Del

          THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Pronounced on: 20th April 2011

+             TEST CAS. No. 22/2003

C.K. SUCHARITA                                  .....Plaintiff

                             - versus -

STATE OF DELHI                                  .....Defendant

Advocates who appeared in this case:
For the Plaintiff: None
For the Defendant: None

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

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

2. To be referred to the Reporter or not?                   No.

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

V.K. JAIN, J (ORAL)

1.            This is a petition for grant of probate of a Will

alleged to have been executed by late Smt.P. Lakshmi

Bhanu Rao on 21st August 2000.            The petitioner is the

executor of the Will, which is alleged to have been executed

in the present of two witnesses namely Sh. P. Raj Kumar

and Smt. Shashi Vashist.        Under the Will, undivided half

share of the testator in property No.32 (Old) and 38 (New),


Test Cas. No.22/2003                                  Page 1 of 7
 Barraby, Kilpauk, Chennai 600010 was bequeathed to her

nephews N. Sivram and N. Bhaskar, vacant plot of land of

about two grounds comprised              in R.S. No.3129/9           of

Puraswalkam, Perambur Taluk was bequeathed in equal

shares to Mrs. M. Uma Rao, niece of the deceased and Mr.

N. Bhaskar.            Flat No.71, DDA (SFS) Gautam Apartments,

Gautam Nagar, New Delhi-110049 was bequeathed to Mr. P.

Uma Maheshwar Rao, hushand of the deceased, who was to

have life interest therein and after his demise the flat was to

devolve upon Mr. N. Sivram. All the investments such as

mutual funds, UTI units, bonds, etc. were to go to the joint

holder or the nominee as the case may be.

2.            No objection letters to grant of probate were filed

by N. Uma Roa, N. Sivram and N. Bhaskar.

3.            The petitioner filed three affidavits by way of

evidence. The first witness Mr. P. Rajkumar has stated that

the Will dated 21st August 2000 was signed by Smt. P.

Lakshmi Bhanu Rao in his presence and she was in a

sound state of mind at the time of signing the Will. Same is

the deposition of Smt.Shashi Vashisht, who is the other

attesting witness to the Will. The third witness Smt. C.K.

Sucharita is the petitioner in this case. She has stated that

Test Cas. No.22/2003                                   Page 2 of 7
 late Smt. Lakshmi Bhanu Rao was a resident of 71, DDA

SFS, Gautam Apartments, Gautam Nagar, New Delhi and

she died issueless on 18 th January 2001. She has further

stated that her husband Dr. P. Uma Maheswara Rao also

died during pendency of this petition on 30 th November

2004. She has stated that the Will Ex.PW-1/3 was executed

in her presence and in the presence of Mr. P. Rajkumar and

Smt. Shashi Vashisht.

4.            IA 14155/2008 was filed by the petitioner for

impleadings legal representatives of Mr. P. Maheswara Rao,

who died during pendency of this petition. However, notice

of the application could not be issued to the proposed legal

representatives for want of the process fee and no one is

today present for the petitioner, even on the third call at

4:00 PM. The application is, therefore, dismissed in default.

Order XXII Rule 6 of the Code of Civil Procedure, to the

extent it is relevant, provides that whether the cause of

action survives or not, there shall be no abetment by reason

of the death of either party between conclusion of the

hearing and the pronouncement of the judgment, but

judgment may in such case be pronounced notwithstanding

the death and shall have the same force and effect as if it

Test Cas. No.22/2003                               Page 3 of 7
 had been pronounced before the death took place. In fact

Mr. P. Uma Maheswara Rao was not a party to the petition,

since State is the only respondent impleaded in this

petition. Even if he on account of his being a legal heir of

Smt. P. Lakshmi Bhanu Rao is considered to be a party to

this petition, since he died on 30th November 2004 after

evidence had already been closed on 23 rd April 2008, the

petition does not abate on account of dismissal of IA

14155/2008.

5. 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.

6. 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. In the case before this Court, the

petitioner has examined both the attesting witnesses to the

WILL and has thereby duly proved the document in terms of

the requirement laid down in Section 68 of the Evidence

Act.

7. There is no material on record to indicate that the

testator was not in a sound state of mind while executing

the Will. She died on 18th January 2003 whereas the Will is

stated to have been executed on 21st August 2000. It has

also come in the deposition of the attesting witness that she

was in a sound state of mind while executing the Will.

There are no suspicious circumstances surrounding

execution of the Will. The suspicious circumstances may be

many such as (i) the signature of the Testator may be shaky

and doubtful or different from his usual signatures; (ii) the

mental condition of the Testator may be feeble and

debilitated at the time of the execution of the Will; (iii) the

disposition may be such as is found to be unnatural,

improbable or unfair in the light of relevant circumstances,

such as exclusion of natural heirs without any reason (iv)

the propounder may take a prominent part in the execution

of the Will; (v) the Will may not see the light of the day for

long time; (vi) the Will may contain incorrect recital of

essential facts. The deceased was issueless. One of the

beneficiaries of the Will was her own husband, whereas the

remaining two beneficiaries were her own relatives, one of

them being her nephew and other being her niece. Since

she was issueless, there was nothing unusual in her

bequeathing major part of her estate to her nephew or her

niece. The disposition, therefore, cannot be said to be

unnatural, improbable or unfair. There is no evidence of

the any of the beneficiaries of the Will having taken part in

the execution of the Will. There is no evidence of the Will

containing any incorrect statement of the fact. The probate

has been sought in the same year in which the testator

died. More importantly, despite citation having been

published in newspaper, no one has come forward to

dispute the authenticity of the Will setup by the petitioner.

The report of the Chief Revenue Controlling Authority is

reported to have been received.

8. It is, therefore, directed that probate of the Will

dated 21st August 2000 executed by late Smt. P. Lakshmi

Bhanu Rao, with copy of the Will annexed to it, be granted

to the petitioner as per Rules.

(V.K. JAIN) JUDGE APRIL 20, 2011 Ag