A.K. Sabharwal vs The State & Ors.
2012 Latest Caselaw 439 Del

$-31
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      TEST.CAS. 01/2003
                                 Decided on 23rd January, 2012

       A.K. SABHARWAL                              ..... Petitioner
                       Through:         Mr. Vivekanand, Adv.
                versus

       THE STATE & ORS.                             ..... Respondents
                     Through:           Mr. Vishal Kumar, Adv. for
                                        R-2 to R-4.
                                        None for R-5 & R-6.

       CORAM:
       HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J. (ORAL)

1. By way of this petition under Section 276 of the Indian

Succession Act, 1925, petitioner seeks probate of Will dated 19th

August, 1983 left behind by Late Shri Mohan Lal L. Bajaj

(hereinafter referred to as „the deceased‟).

2. Petitioner is one of the executors of the said Will.

Respondent nos. 2 to 4 are sons; whereas respondent nos. 5 and 6

are daughters of the deceased. None of the respondents have filed

objections to the grant of probate. On the contrary, respondent nos.

2 to 4 have filed affidavits in evidence thereby acknowledging the

genuineness and correctness of the Will dated 19th August, 1983 as

well as Codicil dated 18th October, 1983 executed by the deceased.

They have also been cross-examined by the petitioner‟s counsel in

order to identify the signatures of the testator and witnesses on the

Will and Codicil.

3. It is alleged in the petition that the deceased had executed a

Will dated 19th August, 1983. Subsequently, another Will dated 4th

October, 1983 was executed by the deceased. However, the

subsequent Will dated 4th October, 1983 was revoked by the

testator/deceased vide Codicil dated 18th October, 1983. Thus, Will

dated 19th August, 1983 was the last Will and Testament of the

deceased. Will dated 19th August, 1983 was executed by the

testator in the presence of Shri Vinod Kumar and Shri Y. Vasudeva

Rao, who had appended their signatures thereto as witnesses.

Petitioner was surprised on receiving summons to appear in Court

in Probate Case No. 52/1987 to prove Will dated 4th October, 1983.

Petitioner filed an application under Order 1 Rule 10 (2) read with

Section 151 CPC in the said case in order to bring to the notice of

the Court that Will dated 4th October, 1983 had been revoked and,

in fact, Will dated 19th August, 1983 was the last Will of the

deceased and it is this Will which was to be probated. However,

during the course of hearing of the said application, it was pointed

out that a separate case has to be filed by the petitioner to obtain

probate of Will dated 19th August, 1983. Accordingly, present

petition has been filed.

4. It may be noted here that Test Case no.52/1987 was filed by

the respondent nos. 2 to 4 herein seeking probate of Will dated 4th

October, 1983 and the said case has since been withdrawn by them

on 29th September, 2011.

5. Citation has been published in the newspapers "The

Statesman" (New Delhi Edition), "The Asian Age" (Mumbai

Edition) and "The Hindu" (Bangalore Edition). No one has filed

objections against the grant of probate despite publication of the

citation.

6. Petitioner has examined himself as PW1. He has filed his

affidavit in examination-in-chief. He has been cross-examined by

the counsel for respondent nos. 2 to 4 but his testimony in

examination-in-chief has remained unshaken and/or unshattered.

PW-1 has categorically deposed that Late Shri Mohan Lal L. Bajaj

died on 9th November, 1983 at Banglore but at the time of his death

he had a permanent place of residence at R-898, New Rajinder

Nagar, New Delhi - 110060. The deceased has left behind the

properties as mentioned in the schedule of properties, annexed to

the petition as Annexure C. Late Shri Mohan Lal L. Bajaj had

executed a Will dated 4th October, 1983 but same was revoked by

him vide Codicil dated 18th October, 1983. He has identified the

signatures of the deceased on Will dated 19th August, 1983 and

Codicil dated 18th August, 1983. As per the Will, Shri A.P.

Manglani was also one of the executors of the Will. However, he

had shown his unwillingness to join the petition. Accordingly,

petition was filed by him. He had no interest in the estate left

behind by the deceased except that he was to administer the Will as

per the wishes of the testator/deceased. One of the witnesses to the

Will had expired and other witness was not traceable despite best

efforts made by him. His testimony on material points has

remained unshattered in his cross-examination. Counsel for

respondent nos. 2 to 4 has failed to point out any discrepancy in the

statement of PW1, which may be sufficient to make him

untrustworthy and unreliable, inasmuch as, respondent nos. 2 to 4

have themselves admitted the existence, genuineness and

correctness of Will dated 19th August, 1983 (Exhibit RW 1/PA) and

Codicil dated 18th October, 1983 (Exhibit RW 1/PB).

7. Respondent nos. 2 to 4 have also filed affidavits. Respondent

nos. 2 to 4 have admitted the existence of both the Wills dated 19 th

August, 1983 and 4th October, 1983 executed by their father Late

Shri Mohan Lal L. Bajaj. They have also admitted Codicil dated

18th October, 1983 whereby deceased had revoked Will dated 4th

October, 1983. Respondent nos. 2 to 4 have categorically deposed

that Will dated 19th August, 1983 left behind by their father has to

be taken as his last Will in view of Codicil dated 18 th October,

1983. They have also deposed that they have no objection if

probate is granted to the petitioner in respect of Will dated 19th

August, 1983 left behind by the deceased. Respondent no.3, in his

cross-examination, has deposed that Codicil Ex. RW1/PB bears the

signatures of his father at point X5. Codicil also bears the

signatures of Shri Vinod Kumar at point Y3. He has also identified

the signatures of witness Shri S.K. Maheedhara. He has also

identified the signatures of his father as well as witnesses to the

Will (Ex. RW1/PA), namely, Shri Vinod Kumar and Y. Vasudeva

Rao. He has deposed that Shri Vinod Kumar has passed away. As

regards Shri S.K. Maheedhara and Shri Y. Vasudeva Rao, he has

deposed that their whereabouts were not known to him. He has

deposed that these witnesses were his employees and he had seen

them signing and writing. To the similar effect are the testimonies

of respondent nos. 2 and 4. They have also identified the signatures

of their father as well as that of Shri Vinod Kumar and Shri Y.

Vasudeva Rao on the Will dated 19th August, 1983. They have also

identified the signatures of their father and also of witnesses on the

Codicil. From their testimonies, it appears that Shri Vinod Kumar,

Shri Y. Vasudeva Rao and Shri S.K.Maheedhara had been working

with their father and respondent nos. 2 to 4, were associated with

their father‟s business, thus, they had seen them signing and writing

in the course of their official duties.

8. In ordinary course, Will must be proved by at least one of the

attesting witnesses to the Will in view of the provisions of Section

63 of the Indian Succession Act, 1925 coupled with Section 68 of

the Indian Evidence Act, 1872 (hereinafter referred to as "the Act").

However, Section 69 of the Act further provides that if no such

attesting witness is found, then it must be proved that the attestation

of one attesting witness at least is in his handwriting, and that the

signatures of the person executing the document is in the

handwriting of that person. For the sake of ready reference, Section

69 of the Act is quoted hereunder:-

"Proof where no attesting witness found - If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person."

9. In Babu Singh and Others vs. Ram Sahai @ Ram Singh

(2008) 14 SCC 754, Supreme Court has held that in a case where

the attesting witness is either dead or out of the jurisdiction of the

court or kept out of the way by the adverse party or cannot be

traced despite diligent search, only in that event, the Will may be

proved in the manner indicated in Section 69 i.e. by examining

witnesses who were able to prove the handwriting of the testator or

executant. In R. Vasanthi vs. Janaki Devi (1993) 3 CTC 378, it

was held that if none of the attesting witnesses are available,

witness identifying signature of attestor may be examined under

Section 69. Evidence of identifying witness has to be taken as valid

execution and attestation.

10. In this case, sufficient material has come on record that none

of the attesting witnesses were available to make a deposition in the

court. Shri Y. Vasudeva Rao and Shri S.K. Maheedhara were not

traceable despite best efforts of the petitioner as well as respondent

nos. 2 to 4 and Shri Vinod Kumar had died. Accordingly, Will

dated 19th August, 1983 as well as Codicil dated 18th October, 1983

stands proved by the petitioner as well as respondent nos. 2 to 4 by

establishing the signatures of the testator and the attesting

witnesses.

11. From the evidence led as also the admissions made by the

respondent nos. 2 to 4, petitioner has succeeded in proving that the

deceased had executed a Will dated 19th August, 1983 and the same

is last Will and Testament of the deceased. No evidence has been

led by any of the respondents to show that the deceased was not in a

sound and disposing state of mind at the time of executing the Will

nor did they bring out any suspicious circumstances surrounding the

execution of the Will.

12. For the foregoing reasons, I grant probate of the Will dated

19th August, 1983 of Late Shri Mohan Lal L.Bajaj to the petitioner,

subject to the valuation of the properties, if not already done and on

petitioner‟s paying requisite court fees and furnishing

administrative bond with one surety to the satisfaction of the

Registrar General of this Court.

13. Petition is disposed of in the above terms.

A.K. PATHAK, J.

JANUARY 23, 2012 ga