Girija Ojha vs State & Ors
2011 Latest Caselaw 990 Del

          THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment Pronounced on: 18.02.2011

+             TEST.CAS. 49/2005

GIRIJA OJHA                                        .....Plaintiff

                              - versus -

STATE & ORS                                        .....Defendant

Advocates who appeared in this case:
For the Plaintiff:      Mr Sujit K.              Singh   and      Ms
                        Anisha, Advs.

For the Defendant:              Through: Mr Vishnu Mehra &
                                Ms Sakshi Gupta, Adv. for R-5

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

1.            This is a petition for grant of Probate in respect of

the Will executed by late Shri Shiva Sharan Ojha on 03rd

January, 2005. The petitioner is the wife of the deceased-

testator, whereas respondents 2, 3 and 5 are his sons.

Respondent No. 4 is the daughter of the deceased.                The



Test Cas. No. 49/2005                                    Page 1 of 5
 petitioner sought Probate of the Will only in respect of

ground floor of property No. A-36, Lok Vihar, Pitampura,

Delhi-110034 and not in respect of the entire estate of the

deceased.

2.            Objections were filed by respondent No. 5, who

took a preliminary objection that a petition seeking probate

only in respect of the ground floor of property No. A-36, Lok

Vihar, Pitampura, Delhi-110034 is not maintainable since

probate is to be granted in respect of the entire Will and not

a part of it. However, execution of the Will dated 03rd

January, 2005 was admitted by respondent No. 5.

3.            In the rejoinder-affidavit filed by the petitioner, she

clarified that she was seeking probate in respect of the

entire estate of the deceased, including the ground floor of

property No. A-36, Lok Vihar, Pitampura, Delhi-110034.

4.            The       Will   Ex.PW-1/3   purports   to   have    been

executed in the presence of two attesting witnesses, namely,

Mr Yashpal Sachar, R/o A-40, Lok Vihar, Pitampura and Mr

Dev Raj Adlakha, R/o A-43, Lok Vihar, Pitampura. Both of

them have been examined by the plaintiff. In his affidavit,

Mr Yashpal Sachar has stated that he alognwith Mr Dev Raj

Adlakha was present on 03rd January, 2005 when the

Test Cas. No. 49/2005                                        Page 2 of 5
 testator late Shri Shiva Saran Ojha affixed his hand and

signature to the Will. The testimony of Mr Mr Yashpal

Sachar has been corroborated by the other attesting witness

Mr Dev Raj Adlakha.

5.            The petitioner has also examined herself as PW-1

and has stated that respondents 2, 3 and 5 are her sons,

whereas respondent No. 4 is her daughter. She has further

stated that late Shri Shiva Saran Ojha died on 20th June,

2005 and a copy of the Death Certificate is Ex.-1.           The

receipt issued by Punjabi Bagh Crematorium, where he was

cremated on 21st June, 2006, is Ex.-2.        She has further

stated that at the time of death, late Shri Shiva Saran Ojha

was residing at A-36, Lok Vihar, Pitampura.

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

Test Cas. No. 49/2005                                Page 3 of 5
 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.            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.

8.            The reports of the Chief Revenue Controlling

Authority have already been received and are on record.

Valuation Report has been received in respect of Delhi

Test Cas. No. 49/2005                                        Page 4 of 5
 property as well as the property in Gopalganj, Bihar.

9.            The petitioner has duly proved the execution of the

Will dated 03rd January, 2005 by producing both the

attesting witnesses. The Objection taken by respondent No.

5 also does not survive anymore since the petitioner is

seeking Probate in respect of whole of the estate of late Shri

Shiva Saran Ojha, which is subject matter of the Will.

                               ORDER

It is directed that a Probate of the Will dated 03rd

January, 2005 executed by late Shri Ojha be issued to the

petitioner in accordance with the Rules with a copy of the

Will annexed to it.

(V.K. JAIN) JUDGE FEBRUARY 18, 2011 bg