Rajinder Kumar Gupta vs State & Ors
2011 Latest Caselaw 1329 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
#21.
+      FAO 430/2008

                                             Date of Decision:07.03.2011.

       RAJINDER KUMAR GUPTA                             ..... Appellant
                    Through           Mr. Amarjeet Sahni, Adv.

                      versus


       STATE AND OTHERS                                 .... Respondents

Through Mr. V.b. Andley, Sr. Adv. with Mr. Lalit Gupta, Adv. for R-2.

Mr. Nikhil Singhla, Adv. for R-3&4 CORAM:

HON'BLE MR. JUSTICE MOOL CHAND GARG

: MOOL CHAND GARG, J.(Oral)

1. The short point involved in this matter is as to whether the Trial Court was right in having decided issue No.2 against the appellant by holding that the Will dated 18.08.1984 was not validly executed in a case where the respondents have filed a petition under Section 276 of the Indian Succession Act seeking letters of administration on the allegation that late Smt. Janki Devi their mother died intestate. As an objection to the aforesaid petition the appellant set up the Will dated 18.08.1984 alleged to have been executed by late Smt. Janki Devi.

2. The Trial Court framed the following issues:

"1. Whether the deceased Smt. Janki Devi died and the petitioner is entitled to succeed her estate as such? OPP

2. Whether the deceased Smt. Janki Devi had executed a valid Will dated 18.08.1984 in favour of her sons and whether the said document is the last Will and testament of the said deceased? OPO

3. Relief."

3. Since the onus to prove the second issue was on the appellant, the appellant examined a deed writer who prepared a Will at the instructions of Smt. Janki Devi and who appeared as O2W1 and one attesting witness namely Shri Rameshwar Dass Gupta who appeared as O2W2. The second attesting witness was not examined.

FAO 430/2008 page 1 of 5

4. It would be relevant to take note of examination-in-chief of O2W2 who stated as under:

"I know the parties to this petition for more than 25/30 years Vol. They are the sons of my "Bua" Smt. Janki Devi. She has since died.

I have seen on record the original Will mark A. My Bua Smt. Janki Devi had come to me and had told me that she had executed her Will and I should sign the same. I had done so at her asking at point C and the writing at point Counter-affidavit be filed within four weeks with advance copy to counsel for the petitioner who may file rejoinder within four weeks thereafter. Is also in my hand on Will mark A. I do not identify the signatures of any other person on this Will mark A. She was living in 92 Banarsi Dass estate as she had personally come to my house at 93 Banarsi Dass Estate."

5. The Ld. Addl. District Judge taking note of the aforesaid statement made by the attesting witness came to the finding that the Will in question has not been proved in accordance with law. The relevant observation made by the Addl. District Judge are as under:

"Accordingly it is held that the will Ex. PW1/RB (Marked -A) allegedly executed by deceased Smt. Janki Devi on 18.08.1984 is not proved as legal, decided against the respondent no.2. As there is no legal and admissible evidence on record led on behalf of the petitioner so no relief as prayed for by him can be granted. Issue No.1 is decided against the petitioner also."

6. In this regard the Trial Court has also taken note of statement of O2W2 as follows:

"Even if for the sake of arguments, it is presumed that the Will was duly registered before Sub-Registrar O2W3, then also simple registration is not sufficient to treat the Will as valid one. If the procedure and manner prescribed under Section 63 of India Succession Act is not followed, then such Will cannot be enforced even if it is registered. Registration of the Will and due execution of the Will are two different things. Registration in case of Will is only optional. Registered Will cannot take place or due execution. Accordingly statement of O2W3 is of no help to the respondent No.2 in proving the alleged due execution because according to the other witnesses, Will was already signed by the testatrix and witnesses before presenting before Sub-Registrar. Accordingly simple proving of registration of the Will cannot be treated as due execution also.

FAO 430/2008 page 1 of 5 The certificate of due verification and attestation of the Will mentioned at the bottom from point A to A does not contain the correct declaration as admitted by O2W2 in his cross examination. When attesting witness examined by the respondent No.2 to prove the execution of the Will himself is not supporting the case, then there exist no grounds to treat the Will in question as genuine and valid Will."

7. Section 63 (c) requires evidence to be led in the format as prescribed by the Indian Succession Act. The said Section reads as under:

"63. Execution of unprivileged Wills:- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:--

       (a)     xxx

       (b)     xxx

(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 acknowledgement 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."

8. Hon'ble Supreme Court has examined the aforesaid issue in a judgment delivered in the case of Janki Narayan Bhoir Vs. Naraya Namdeo Kadam, VII (2002) SLT 361 AIR 2003 SC 761, wherein it has been observed:

"On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. It is true that Section 68 of Evidence Act not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. although FAO 430/2008 page 1 of 5 Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. to put in other words, if one attesting witness can prove execution of the will in terms of Clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attention of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attention of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."

9. In this case the aforesaid requirement has not been proved by the appellant inasmuch as only one attesting witness has been examined who admittedly has not signed the Will in question in presence of the second witness. Therefore, his testimony does not prove the execution of the Will and attestation thereof by the two witnesses.

10. This Court has also taken a similar view in the case of Surinder Kumar Grover Vs. State & Ors. 177 (2011) DLT 188.

11. In view of that there is no infirmity in the findings returned by the Addl. District Judge. Thus, the appeal does not call for any interference by this Court and the same is hereby dismissed with no orders as to FAO 430/2008 page 1 of 5 costs.

12. Learned counsel for the appellant submits that he may like to file a probate petition. He is always at liberty to file such petition in accordance with law subject to all just exceptions and defences available to the respondents.

                                                   MOOL CHAND GARG,J
MARCH 07, 2011
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FAO 430/2008                                                    page 1 of 5