Pradeep Jain vs State
2012 Latest Caselaw 6663 Del

        *        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Decision: 21st November, 2012

+       TEST. CAS. 60/2010

        PRADEEP JAIN                                        ..... Plaintiff

                           Through: Ms. Smriti Vashisht, Advocate.
                                versus

        STATE                                                 ..... Defendant

                           Through:     None.

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

                           JUDGMENT

V.K.JAIN, J. (ORAL)

This is a petition for grant of probate in respect of the Will dated 14.08.2009

stated to have been executed by late Smt. Otto Jain, wife of the petitioner Pradeep

Jain. It is stated in the petition that late Smt Otto Jain, who expired on 19.08.2009,

had executed a Will dated 14.08.2009, bequeathing her estate to the petitioner. It is

further stated in the petition that late Smt Otto Jain was survived by three LRs

namely Pradeep Jain and two minor children namely Mast. Mrinal Jain and Mast.

Hardik Jain.

2. On filing of this petition, citation was published in newspaper. The

petitioner being the natural guardian of his minor sons, no notice to the minor sons

was issued.

3. The petitioner filed affidavit of attesting witness Mr. Rajiv Wadhawan

alongwith the petition. In this affidavit Mr. Wadhawan stated that Will dated

14.08.2009 was signed by late Smt Otto Jain in his presence and in the presence of

the other witness Mrs. Alka jain who also had signed in the presence of the

deceased. He specifically stated that late Smt. Otto Jain had signed and executed

the Will in their presence.

The petitioner has also filed the affidavit of other attesting witness Mrs. Alka

jain who has corroborated the deposition of Mr. Rajiv Wadhawan and has stated

that she was one of the attesting witnesses to the Will dated 14.08.2009 executed

by late Smt. Otto Jain wife of Mr. Pradeep Jain. She further stated that the testator

had signed and executed the Will in their favour and had also stated that it was her

last Will.

4. The original Will executed by late Smt Otto Jain is Ex PW1/1 and it purports

to have been attested by Mrs. Alka Jain and Mr. Rajiv Wadhawan. In the Will

Smt. Otto Jain has stated that Flat No. 411, Navniti Apartment, I.P. Extension

Patparganj, Delhi-92 was purchased by her husband from his funds though it was

registered in her name. The aforesaid flat was bequeathed by her solely to her

husband expecting that he would properly bring up her children.

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.

6. The Will holding to be executed by late Smt. Otto Jain was required to be

proved by examining one of the two attesting witnesses to the Will. The plaintiff

filed affidavits of both the attesting witnesses one, at the time of filing of the

petition and the other by way of evidence. Since there is no contest to the petition

and there is no suspicious circumstances surrounding execution of the Will, I see

no reason to suspect the genuineness of the Will set up by the petitioner. The other

two LRs of late Smt. Otto Jain being minor children under the care of their father,

there seems to be nothing unnatural in bequeathing the property solely to the

husband particularly when the same is alleged to have been acquired from the

funds of the husband.

7. For the reasons stated above, the petition is allowed.

The Registry is directed to issue probate in respect of the Will executed by

late Smt. Otto Jain, with copy of the Will annexed to it, to the petitioner on filing of

appropriate Court fee.

V.K. JAIN, J NOVEMBER 21, 2012 mb