Prithviraj Sehli @ Pracha ... vs State & Ors
2012 Latest Caselaw 5363 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                      Judgment delivered on: 07.09.2012

+      TEST.CAS. 75/2010

       PRITHVIRAJ SEHLI @ PRACHA PRACHASERI & ANR
                                                   ..... Petitioners
                      Through: Ms Chitra Gera, Adv for Petitioner
                      No. 2,
               versus

       STATE & ORS                                           ..... Respondents
                          Through: Ms Asha Bhalla, Adv for R-2

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

                          JUDGMENT

V.K.JAIN, J. (ORAL)

1. This is a petition for grant of probate in respect of the Will, alleged to have

been executed by late Smt. Shanti Devi on 19.07.1991. Smt. Shanti Devi, who

expired on 08.03.2004, was survived by four legal heirs, including the petitioners

Prithvi Sehli and Balraj Sehli. It is alleged that in her life time, she had executed

the aforesaid Will dated 19.07.1991 in the presence of two attesting witnesses,

namely, Vinay Shukul and Ram Das Singh.

2. Notice of the petition has been served by the respondents 2 and 3, but there

has been appearance only on behalf of respondent No. 2. The learned counsel

representing respondent No. 2, states that there is no objection to grant of probate

of the Will.

3. The citation was also published in 'The Statesman', which is on record.

The petitioner has filed two affidavits by way of evidence.

4. In his affidavit by way of evidence, Mr Vinay Shukul has stated that Smt.

Shanti Devi was ordinarily residing at 16, Soi Somdej Chao Praya 12, Klongsan

Thonburi, Bangkok, Thailand, at the time of her death. He has further stated that

on 19.07.1991, he went to the house of Smt. Shanti Devi on her invitation. She

informed him that she had got her last Will prepared through an advocate and

wanted him and Shri Ram Das Singh, who was already present there, to be the

attesting witness to her Will. Thereafter, they went to the Attache (Consular),

Embassy of India, Bangkok on the same day at around 11.00 A.M. for the purpose

of proper execution and its attestation in the said office. He has further stated that

in the aforesaid office, he saw Smt. Shanti Devi signing the Will Ex.P1W1/3. She

signed on the last page in his presence. Thereafter, he and Ram Das signed the

Will at points 'A' and 'C' respectively on her request and in her presence as well as

in the presence of each other. The signature of Smt. Shanti Devi were got attested

by the authorized officer of the Attache. The witness has further stated that Smt.

Shanti Devi was in good state of health and in a sound disposing mind when she

executed the Will.

5. In her affidavit by way of evidence, Ms Chiranya Prachaseri, who also

happens to be the daughter and attorney of petitioner No. 1 Shri Prithviraj Sehli has

stated that Smt. Shanti Devi was ordinarily residing at 16, Soi Somdej Chao Praya

12, Klongsan Thonburi, Bangkok, Thailand. She has further stated that Smt. Shanti

Devi, who was a Hindu, was survived by her husband Shri Hansraj Sehli and three

sons, namely, Prithviraj Sehli, Balraj Sehli and Raviraj Sehli. She has also

identified the signature of Shanti Devi on Ex.P1W1/3. She has stated that the

aforesaid Will was opened on 18.12.2007 in the presence of Shri Hansraj Sehli,

Shri Balraj Sehli, Shri Raviraj Sehli, Shri Vinnay Bhalla and a lawyer named

Sajaphong Praphangkorn. The Attache (Consular) attested the signature of Balraj

Sehli and Raviraj on the memo Ex.P1W1/4. According to this witness, respondent

No. 3 executed a relinquishment deed Ex.P1W1/5 before the Consular, Embassy of

India, Bangkok and also executed the affidavit/NOC Ex.P1W1/6.

6. Mr Bhalla is the last witness produced by the petitioners. He is the attorney

of petitioner No. 1 Balraj Sehli. In his deposition, he has corroborated the

deposition of Chiranya Prachaseri. He has also identified the signature of Smt.

Shanti Devi on the Will Ex.P1W1/3. He has confirmed the signature of respondent

No.3 on the Relinquishment Deed Ex.P1W1/5 and the affidavit Ex.P1W1/6. This

witness has also proved the NOC Ex.P1W1/6 given by respondent No. 2.

7. 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. The execution of the will has been duly proved by way of affidavit of the

attesting witness Mr Vinay Shukul. The execution of the Will thus stands duly

proved. There are no suspicious circumstances surrounding execution of Will in

question.

8. The respondent No.2, through his counsel, states that he has no objection to

grant of probate to the petitioners. Though in the Will, Smt. Shanti Devi

bequeathed her properties to the petitioners to the exclusion of her husband and

son, considering the fact that the husband has given no objection and the third son

of Smt. Shanti Devi, namely, respondent No. 3 Raviraj Sehli has not only executed

a relinquishment deed in favour of the petitioners, but also an affidavit/NOC,

admitting execution of the Will, there is no ground to suspect the genuineness and

authenticity of the Will set up by the petitioners and there is no valid reason for

refusing probate to the petitioners.

9. For the reasons stated hereinabove, the petition is allowed. Probate of the

Will executed by late Smt. Shanti Devi on 19.07.1991 be issued to the petitioners

with copy of the Will annexed to it, as per rules, after confirming that the report of

Chief Revenue Controlling Authority along with valuation report has been

received.

V.K. JAIN, J

SEPTEMBER 07, 2012 bg