Shri Arun Rathi & Ors. vs N.C.T. Of Delhi
2011 Latest Caselaw 379 Del

          THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Pronounced on: 21.01.2011


+             TEST CAS. 57/1998

SHRI ARUN RATHI & ORS.                     .....     Petitioners

                              - versus -

N.C.T. OF DELHI                            .....   Respondent

Advocates who appeared in this case:
For the Petitioners:    Mr. Subhash Chawla, Adv.

For the Respondent:  None.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

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

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported
   in Digest?

V.K. JAIN, J. (ORAL)

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

the Will dated 28.2.1983 executed by Late Smt. Chautha

Devi, as modified by the Codicil dated 14.3.1993. Smt.

Chautha Devi expired on 7.4.1993 leaving nine legal heirs

mentioned in para 5 of the petition.

2. The citation was published in newspapers in terms

of the order dated 6.1.1999 and notice was also served on

the Chief Revenue Controlling Authority. The notice was

also issued to the non-applicant legal heirs of Late Smt.

Chautha Devi. All non-applicants legal heirs other than

non-applicants legal heirs No.2 & 3 Shri Ram Chander

Rathi and Punam Chand Rathi, have filed NOC to the grant

of probate. Objections to grant of probate have not been

filed by non-applicant legal heirs No.2 & 3 namely Ram

Chander Rathi and Punam Chand Rathi despite service of

notice.

3. The petitioners have filed four affidavits by way of

evidence. In his affidavit by way of evidence, petitioner No.2

Anil Rathi, who is also an attesting witness to the Will

executed by Late Smt. Chautha Devi, has stated that in her

life time Late Smt. Chautha Devi had executed one Will

dated 28.2.1983. He further stated that the Will dated

28.2.1983 which is exhibited as PW-1/B was drafted and

prepared by his elder brother Shri Prem Rattan Rathi who

was also the eldest son of Late Smt. Chautha Devi. On the

instructions of testatrix, according to him, the translation of

the Will was read over to the testatrix. She put her

signatures and thumb impressions on it after

understanding its contents and being satisfied that the Will

had been prepared and drafted as per her instructions. He

has identified the signatures and thumb impressions of Late

Smt. Chautha Devi at marks 'X1' to 'X6' on the Will

Ex.-PW-1/B and has stated that the signatures and thumb

impressions were put on the Will in his presence as also in

the presence of Prem Rattan Rathi, Ram Chander Rathi,

Punam Chand Rathi, Kamlesh Kumar Rathi, Arun Kumar

Rathi, Tara Maheshwari, Kusum Daga, M.L.Aggarwal and

Uma Ram. He has also identified the signatures of Prem

Rattan Rathi at mark 'B-1'. He also stated that all the

attesting witnesses named by him had signed in the

presence of each other. He has identified signatures of

Prem Rattan Rathi at mark 'B2', signatures of Ram Chander

Rathi at mark 'C', signatures of Punam Chand Rathi at

mark 'D', signatures of Kamlesh Kumar Rathi at mark 'E',

signatures of Arun Rathi at mark 'F' and his own signatures

at mark 'G', on the Will Ex.PW-1/B. He further identified

signatures of Tara Maheshwari at mark 'H', signatures of

Mrs. Kusum Daga at mark 'I', signatures of M.L.Aggarwal at

mark 'K' on the Will Ex.PW-1/B. He further stated that at

the time of executing the Will, Late Smt. Chautha Devi was

in good health and perfect state of mind and she had

executed the Will without any pressure or coercion from any

person. According to him, Dr. K.K.Rustogi was also

present, had examined Late Smt. Chautha Devi at the time

of execution of the Will and also signed the Will at mark 'L',

stating therein that Late Smt. Chautha Devi was in good

health and sound disposing state of mind. The Will was

later registered by the testatrix on 12.12.1984 with the

office of Sub-Registrar, Delhi as document No.5488, in

additional book No.3 at pages 95 to 100.

4. PW-2 Urmil Rathi is the wife of PW-1 Anil Rathi.

She is also an attesting witness to the Codicil dated

14.3.1993 to the Will dated 28.2.1983 executed by late Smt.

Chautha Devi. In her affidavit by way of evidence, she has

stated that on 14.3.1993, Late Smt. Chautha Devi had

executed the Codicil Ex.PW-1/C which was drafted and

prepared by Ms. Nandni Sahni, Advocate, on her

instructions. The Codicil was later registered with Sub-

Registrar, New Delhi. Since Smt. Chautha Devi at that time

was ill and was admitted in Ashlok Hospital at Safdarjung,

New Delhi, the Sub-Registrar was requested to visit her in

the hospital and register the Codicil there. The Sub-

Registrar came to hospital on 31.3.1993 and the Codicil was

registered there, on that date, as document No.1505, in

additional book No.3, volume No.34, at pages 98 to 102.

She has identified thumb impression of Smt. Chautha Devi

at mark Y1 to Y9 on the Codicil Ex.PW-1/C as also her

photograph on the document. She also stated that Ms.

Nandni Sahni had also read over the contents of the Codicil

in vernacular language to Smt. Chautha Devi in her

presence. According to her, Punam Chand Rathi,

M.L.Aggarwal, Dr. K.K.Rastogi and other witnesses were

also present at the time of execution of Codicil. She further

stated that Smt. Chautha Devi put her thumb impression

on the Codicil in the presence of witnesses after

understanding its contents and thereafter it was signed by

the attesting witnesses including herself. She also stated

that Dr. K.K.Rastogi had examined the Codicil at the time of

execution of Codicil and then put his signatures on the

document. The witness has identified her own signatures at

mark R on the Codicil as also the signatures of Punam

Chand Rathi at mark S, signatures of M.L.Aggarwal at mark

'T', signatures of Ms. Nandni Sahni, Advocate at mark 'U'

and Dr. K.K.Rastogi at mark 'V'. She further stated that

Smt. Chautha Devi was in good health and sound disposing

state of mind at the time of execution of Codicil. Petitioner

No.1 Mr. Arun Rathi who has been examined as PW-3 has,

in his affidavit, proved the Will Ex.PW-1/B executed by late

Smt. Chautha Devi on 28.2.1983. According to this witness

also the Will was drafted by his elder brother Shri Prem

Rattan Rathi, eldest son of Late Smt. Chautha Devi and its

translation was read over to the testatrix who signed the

document after understanding the contents of the Will and

being satisfied that it had been prepared and drafted as per

her instructions. He has identified the signatures and

thumb impressions of the testatrix at mark 'X1'to 'X6' on

the Will. He further stated that Smt. Chautha Devi had put

her signatures and the thumb impressions on her Will in

his presence and also in the presence of Prem Rattan Rathi,

Ram Chander Rathi, Punam Chand Rathi, Kamlesh Kumar

Rathi, Anil Rathi, Tara Maheshwari, Kusum Daga,

M.L.Aggarwal and Shri Uma Ram. He has identified

signatures of all the attesting witnesses at mark 'B-2' and

mark 'C' to 'K'. He also confirmed that Smt. Chautha Devi

was in good health and perfect state of mind when she

executed the Will Ex.PW-1/B and that Dr. K.K.Rustogi who

was also present at the time of execution of the Will, had

examined her and had also signed the Will at mark L stating

therein that Chautha Devi was in good health and sound

disposing state of mind. The petitioners have also examined

Shri Uma Ram as PW-4. Uma Ram, in his affidavit, states

that he is also the attesting witnesses to the Will dated

28.2.1983 executed by late Smt. Chautha Devi on

28.2.1983. He has confirmed that the Hindi translation of

the Will was read over to the testatrix and she signed after

understanding the contents of the Will and being satisfied

that it had been prepared and draftered as per her

instructions. He also identified her signatures and thumb

impressions on all the pages of Will Ex.PW-1/B at marks X1

to X6 and stated that the testatrix had put her signatures

and thumb impressions on the Will in his presence as well

as other witnesses. He has also identified his own

signatures as also the signatures of other witnesses on the

Will Ex.PW-1/B.

5. The execution of the Will Ex.PW-1/B has been duly

proved by producing as many as three attesting witnesses

namely Mr. Anil Rathi, Mr. Arun Rathi and Mr. Uma Ram

PW-1, PW-3 and PW-4 respectively in the absence of any

evidence to the contrary, I see no reason to believe the

deposition of these witnesses. They have also stated that

late Smt. Chautha Devi was in a sound state of health and

mind when she executed the Will Ex.PW-1/B which was

drafted by Prem Rattan Rathi, on her instructions, and was

read over and explained to her in vernacular language

before she put her signatures and thumb impressions mark

on it. The endorsement made by Dr. K.K.Rustogi on the

Will Ex.PW-1/B also shows that she was medically fit at the

time she executed the Will. The endorsement made on the

Will in Hindi which is signed by Smt. Chautha Devi shows

that the Hindi translation of the Will had been read over and

explained to her. The affidavits of PW-1, PW-3 and PW-4

also show that the Will was signed and thumb impressions

were put by late Smt. Chautha Devi in the presence of

attesting witnesses. The Will has, therefore, be duly proved

by the petitioners.

6. The Codicil EX.PW-1/C has also been proved by

examining one of its attesting witnesses namely Smt. Urmil

Rathi. Her testimony shows that the Codicil was also read

over and explained to Smt. Chautha Devi before it was

signed by her in the presence of the attesting witnesses

including Smt. Urmil Rathi. Vide Codicil Ex.PW-1/C, late

Smt. Chautha Devi changed the executors of the Will.

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 three attesting witnesses to the

WILL and one attesting witness to the Codicil has thus

thereby duly proved the documents 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. Same is the

legal position with respect to execution of a Codicil to the

Will.

9. For the reasons stated in the preceding

paragraphs, I hold that the petitioners being executors of

the Will Ex.PW-1/B executed by late Smt. Chautha Devi on

28.2.1983 read with Codicil executed by her on 12.3.1993,

are entitled to probate sought by them.

10. The report of the Chief Revenue Controlling

Authority is stated to have already been received.

11. It is, therefore, directed that a probate of the Will

Ex.PW-1/B read with Codicil Ex.PW-1/C be granted to the

petitioners on payment of the prescribed court fee.

                                               (V.K. JAIN)
                                                 JUDGE

January         21, 2011
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