Anand Burman vs State
2012 Latest Caselaw 4456 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Judgment reserved on:   July 23, 2012
                                            Judgment pronounced on: July 27, 2012.

+      TEST CAS 25/2010

       ANAND BURMAN                                                 ..... Petitioner

                     versus

       STATE                                                       ..... Respondent

Advocates who appeared in this case:
For the Petitioner   :        Mr. Sudhir K. Makkar, Advocate
For the Respondent   :        None

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

V.K. JAIN, J.

1. This is a petition under Sections 276 read with 227 of the Indian Succession

Act, 1925 for grant of probate in respect of a Will executed by late Smt. Sudha

Burman on 26.12.2008.

2. It is alleged in the petition that late Smt. Sudha Burman, mother of petitioner

herein, died at New Delhi on 07.03.2009. She was 75 years old at that time. It is

alleged that late Smt. Sudha Burman was survived by two legal heirs namely her

husband late Shri Ashok Chand Burman, who died during the pendency of this

petition and her son Dr. Anand C. Burman who is the only surviving petitioner.

The disposition of her properties by late Smt. Sudha Burman was in the following

manner:

a. Out of her estate a sum of Rs.5 crores or mutual funds worth Rs.2 crores be paid to her daughter in law Ms. Minnie Burman, w/o Dr. Anand Burman.

b. A sum of Rs.5 crores be paid to her son Dr. Anand Burman. c. A sum of Rs.2 crores be paid to her granddaughter in law Ms. Shivani Burman w/o Shri Aditya Burman.

d. A sum of Rs.2 crores be kept in trust with her son Dr. Anand Burman for the benefit of Mr. Aditya Burman which would be paid by Dr. Anand Burman in his discretion at an appropriate time either to Mr. Aditya Burman or to any other person, company or entity wherein. Mr. Aditya Burman has an interest as may be considered appropriate by Dr. Anand Burman.

e. A sum of Rs.2 crores be paid to her granddaughter Ms. Anisha Burman. f. A sum of Rs.20 in lac be paid in cash to her sister in laws Ms. Asha Burman w/o Late G.C. Burman, Mrs. Indu Burman w/o Sidharth Burman and Mrs. Monika Burman w/o Sh. V.C. Burman.

g. A sum of Rs.1 lac be paid to her assistant Sh. Anil Duggal and 7 gold ginnies in favour of his wife.

h. Entire jewellery lying in the lockers or at home be entrusted to my daughter in law Mrs. Minnie Burman.

i. Jewellery worth Rs.1 crore be given to her granddaughter Ms. Anisha Burman.

j. Jewellery worth Rs.1 crore be given to her granddaughter in law Ms. Shivani Burman.

k. Mrs. Minnie shall be given jewellery worth Rs.25 lac to Mrs. Natasha Kapur w/o Sh. Sanjay Kapur. Remaining jewellery will belong to Mrs. Minnie Burman.

l. Equity share holdings held by the deceased in M/s Puran Associates Pvt.

Ltd. were bequeathed 50% in favour of her husband Mr. Ashok Chand Burman and remaining 50% to her daughter in law Mrs. Minnie Burman.

3. The Will dated 26.12.2008 purports to be attested by two witnesses namely

petitioner Dr. Anand C. Burman and one Mr. Ajay Marwah. In his affidavit by way

of evidence, Mr. Ajay Marwah has stated that the Will dated 26.12.2008 was

executed by late Smt. Sudha Burman wife of Mr. Ashok Chand Burman resident of

2, Rajesh Pilot Road, New Delhi in his presence. He identified signatures of late

Smt. Sudha Burman. He also identified his own signatures on the Will Ex.PW1/1,

at Point „C‟.

4. Petitioner Dr. Anand C. Burman is the other attesting witness to the Will

dated 26.12.2008. In his affidavit by way of evidence, he has stated that he was one

of the witnesses to the execution of the said Will and had signed on the last page of

the Will as a witness. He further stated that late Smt. Sudha Burman died on

7.3.2009 and her death certificate was Ex.PW1/2.

5. The execution of an unprivileged Will is governed by Section 63 of Indian

Succession Act which, to the extent it is relevant, provides that 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

acknowledgment 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. 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. However, in the present case, both the attesting witnesses of the Will have

been produced. The execution of the Will thus stands duly proved. There are no

suspicious circumstances surrounding execution of Will in question. The deceased

had only one child, and the bequest was to her husband, son and family of the son.

This disposition cannot be said to be unnatural.

6. One question of law which arose during the course of arguments in this case

was as to whether the Will, having been attested by Dr. Anand C. Burman the

bequest to the extent it is in his favour, would be void or not. Section 67 of the

Indian Succession Act provides that a Will shall not be deemed to be insufficiently

attested by reason of any benefit thereby given either by way of bequest or by way

of appointment to any person attesting it, or to his or her wife or husband; but the

bequest or appointment shall be void so far as it concerns the person so attesting, or

the wife or husband of such person, or any person claiming under either of them.

7. The learned counsel for the petitioner, however, points out that Section 67 of

the Indian Succession Act is placed in Part-VI of the said Act and Section 57 of the

Act, which deals with applicability of the said part, to the extent it is relevant,

specifically provides that only those provisions of the said part which are set out in

Schedule-III shall, subject to the restriction and modification specified therein,

apply to the Will and Codicils made by any Hindu, Buddhist, Sikh or Jain made on

or before 1.1.1927. He further points out that Chapter-III of the said Act does not

refer to Section 67 of the Act which clearly shows that the aforesaid provisions do

not apply to the Will in question. He further pointed out that Section 58 of the Act

clearly provides that provisions of Part-VI shall not apply to testamentary

succession to the property of any Hindu, Buddhist, Sikh or Jain save and except as

provided in Section 57 of the Act. The net effect of these provisions, when read

together, is that the bequest made to the attesting witnesses of the Will, executed by

a Hindu, is not void under Section 67 of the said Act. Therefore, the bequest made

to the petitioner is not void. As regards his competence as an attesting witness,

Section 68 of the said Act specifically provides that no person, by reason of interest

in, or of his being an executor of, a Will shall be disqualified as a witness to prove

the execution of the Will or to prove the validity or invalidity thereof. Therefore,

Shri Ashok Chand Burman was a competent witness to prove execution of the Will

executed by late Smt. Sudha Burman.

8. In Jose s/o Immatty Anthony v. Ouseph & Ors. AIR 2007 Kerala 77, the

defendant in the suit had contended that the bequest as far as the plaintiff is

concerned was void since he had also attested the Will. Rejecting the contention,

the High Court, inter alia, held as under:-

"7. Section 67 of the Indian Succession Act, 1925 deals with the effect of gift to attesting witness. This Section is not applicable to Wills of Hindus by virtue of Section 57 read with Schedule III of the Indian Succession Act and as such legatees under the Will of such persons do not forfeit their legacy on becoming attesting witnesses..."

9. For the reasons stated hereinabove, it is directed that a probate in respect of

the Will dated 26.12.2008 executed by late Smt. Sudha Burman, with copy of the

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

The petition stands disposed of.

                                                                  V.K.JAIN, J

JULY         27, 2012
rd