Smt. Geeta Devi Goel vs State
2011 Latest Caselaw 310 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Pronounced on: 19.01.2011

+            Test.Cas. 75/2008

Smt. Geeta Devi Goel                             .....Petitioner

                             - versus -

State                                          .....Respondent

Advocates who appeared in this case:
For the Petitioner: Mr. M.A. Niyazi, Adv.
For the Respondent: 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 the WILL

dated 4th December, 1997 executed by late Shri Anand

Parkash Goel, husband of the petitioner.

It is alleged in the petition that late Shri Anand

Parkash Goel had executed a WILL dated 4th December,

1997. He died on 24 th July, 2004 and was survived by four

Class-I legal heirs i.e. his widow/petitioner Smt. Geeta Devi

Goel and three sons namely Shri Nitin Goel, Shri Rohit

Kumar Goel and Shri Ajay Kumar Goel.

2. The citation was published in "Indian Express"

(New Delhi Edition) and notice issued to the non-applicant

legal heirs of the deceased testator was also duly served on

them. Non-applicant legal heir Ajay Kumar Goel filed no

objection in the form of an affidavit on his behalf as also on

behalf of other non-applicant legal heir Rohit Kumar Goel,

who has executed a power of attorney in his favour.

3. Non-applicant legal heir Nitin Goel was proceeded

ex-parte vide order dated 6th February, 2009.

4. The petitioner has examined three witnesses

including herself. PW-2 Shri S.L. Mehrotra and PW-3 Shri

K. Venkatasubramanian are the attesting witnesses of the

WILL dated 4th December, 1997 executed by late Shri Anand

Parkash Goel. Both of them stated that the WILL was

signed by late Shri Anand Parkash Goel on 4 th December,

1997 in their presence and that they also signed in the

presence of each other on that date.

5. In her affidavit, Smt. Geeta Devi Goel has

supported the case, as set up in the petition.

6. In her additional affidavit filed today in Court, the

petitioner Smt. Geeta Devi Goel has proved the power of

attorney executed by her son/non-applicant-legal heir Shri

Rohit Kumar Goel in favour of her other son/non-applicant-

legal heir Shri Ajay Kumar Goel. The power of attorney has

been duly registered on 16th April, 2008 in the Office of Sub-

Registrar VIII, New Delhi. A copy of the power of attorney,

which is available on the file, shows that the attorney,

amongst other things, was authorized to institute,

commence, prosecute, carry on or defend or resist all suits

and other actions and proceedings or withdraw the same,

concerning the property of the executant or any part thereof

or concerning anything in which he may be a party in any

Court in civil, criminal, revenue or revisional jurisdiction.

Thus, the executant of the power of attorney Rohit Kumar

Goel authorized his attorney Shri Ajay Kumar Goel to

prosecute or defend any proceedings to which he may be a

party. This power obviously would include the power to give

no objection certificate on his behalf in these probate

proceedings.

7. 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.

8. 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.

9. 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. However, in the case before this

Court both the witnesses have specifically stated that not

only the testator has signed in their presence, they also

signed in the presence of each other.

10. The WILL executed by late Shri Anand Parkash

Goel is exhibit Ex. PW1/2 and has been duly proved by the

attesting witnesses Shri S.L. Mehrotra and Shri K.

Venkatasubramanian. The report of the Chief Revenue

Controlling Authority has already been received. Thus,

there is no impediment in grant of probate of aforesaid WILL

in favour of the petitioner. Accordingly, a probate of the

WILL dated 4th December, 1997 executed by late Shri Anand

Parkash Goel is granted in favour of the petitioner with a

copy of the WILL annexed thereto.

(V.K. JAIN) JUDGE

January 19, 2011 vk