Ishar Singh vs State Of Delhi
2011 Latest Caselaw 2929 Del

          THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment Pronounced on: 31st May, 2011

+             Test Case 70/2010

ISHAR SINGH                                         .....Petitioner

                               - versus -

STATE OF DELHI                              .....Respondent

Advocates who appeared in this case:
For the Petitioner: Mr. Pinaki Addy, Adv.

For the Respondent: Ms. Shobhana Takiar, Adv.
                     Mr. Manav Ujla, Adv.

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

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

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 under Section 276 of Indian

Succession Act for grant of probate of the Will alleged to have

been executed by Late Smt. Gursaran Kaur on 29th November,

2004. Late Smt. Gursaran Kaur died on 21st February, 2010

leaving husband, two sons and three daughters as her legal

heirs. The petitioner is the husband of the testatrix, Mr.

Gurbachan Singh and Mr. Jaswinder Singh are her sons and

Mrs. Kuljit Chatteerjee, Mrs. Baljit Rana and Mrs. Guljit Kaur

Kochar are her daughters.

2. The citation was published in Hindustan Times and

Navbharat Times and was also affixed at a conspicuous

portion of property no.E-4, Nizammudin West, New Delhi

which is alleged to have been owned by Late Smt. Gursaran

Kaur. Notice of the petition has been served on all the non-

applicants legal heirs of the deceased. Objections have not

been filed by any of the legal heirs of the deceased. Rather

affidavits of consent have been filed by all of them, admitting

the Will dated 29th November, 2004 and stating that they have

no objection to grant of probate to the petitioner.

3. The original Will has been filed along with the

petition. It purports to have been executed by Smt. Gursaran

Kaur in the presence of two witnesses namely Mr. Shekar

Nagpaul and Mr. Naresh K. Manaktala. The petitioner has

filed affidavit of Shri Shekar Nagpaul, one of the attesting

witnesses to the Will. In his affidavit, Shri Shekar Nagpaul

has stated that the Will dated 29th November, 2004 was signed

by Late Smt. Gursaran Kaur in his presence and in the

presence of Mr. Naresh K. Manaktala. He has further stated

that both of them also signed the Will as attesting witnesses

on the request of the testatrix. He has also stated that she

was in good health and of sound mind at the time of execution

of the Will annexed as Annexure B/1.

It has been also stated in the petition that the other

attesting witness has expired and a copy of his death

certificate is also stated to have been filed. The attestation of

the Will has been duly signed by the attesting witnesses.

4. 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.

5. 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.

6. 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 21st February, 2010 whereas the Will is

stated to have been executed on 29th November, 2004. 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. 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.

A perusal of the Will would show that the deceased

has given her property to all her legal heirs in equal shares.

The disposition, therefore, cannot be said to be unnatural,

improbable or unfair.

7. Considering the deposition of attesting witness Shri

Shekar Nagpaul given on an affidavit coupled with the fact that

despite publication of citation in newspapers, there is no

objection from the non-applicant legal heirs of the deceased to

grant of probate to the petitioner and they have rather given

consent to the grant of probate. The petition is allowed and it

is directed that the probate of the Will dated 29th November,

2004 executed by Late Smt. Gursaran Kaur along with copy of

the Will annexed to it be issued to the petitioner as per rules.

The petition stands disposed of.

(V.K. JAIN) JUDGE

MAY 31, 2011 SD