Nutan Kumar & Anr. vs Rajesh Arora & Ors.
2013 Latest Caselaw 184 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Judgment reserved on : 03.01.2013.
                          Judgment delivered on: 11.01.2013.

+                         FAO (OS) No.284/2009

NUTAN KUMAR & ANR.                                          ..... Appellants
            Through:             Mr. V.S. Chauhan, Adv.

                                  versus

RAJESH ARORA & ORS.                                    ..... Respondents

             Through:            Mr. Sumit Bansal, Mr. Ateev Mathur &
                                 Mr. Ajay Monga, Advs. for R-1.

CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. .

1     This appeal has impugned the order of the Single Judge dated

25.03.2009 wherein the probate petition filed by Rajesh Arora

(hereinafter referred to as the 'petitioner') seeking probate of a Will

dated 01.06.1995 (Ex. PW-4/3) executed by his late father Tilak Raj

Akalgariah (hereinafter referred to as the 'testator') had been decreed.

2 Record shows that the testator had five children i.e. three sons and

two daughters. His wife had predeceased him. The Will purported to

have been executed by him had bequeathed his properties both

moveable and immoveable in favour of the petitioner; his other two sons

Nutan Kumar and Anil Kumar had been disinherited. This document

had been signed by the testator; there is no dispute to this position. It

also has the thumb impression and photograph of the testator. In the

column of witnesses, two names have been mentioned namely Yashpal

Singh and Advocate R.R. Bhardwaj. Both of them have also signed the

said document. Signatures of Balbir Singh also appear on the right hand

side of the document. The Will is a registered document. At the back

page of Ex. PW-4/3 stamp of the Registrar is evident; it has certified

"contents of the documents explained to the parties who understood the

terms and admit them as correct". The names of the testator Tilak Raj

Akalgariah and the two attesting witnesses Yashpal Singh and R.R.

Bhardwaj also find mention in this document.

3 The appellants before this Court are the two disinherited sons

namely Nutan Kumar and Anil Kumar. They are aggrieved by the

finding returned by the Single Judge decreeing the probate petition in

favour of their brother/Respondent No. 1.

4 The submission of the learned counsel for the appellants is three-

fold.

(i) Section 63 (c) of the Indian Succession Act, 1925 (hereinafter

referred to as the 'Act') has not been satisfied; the Single Judge has

wrongly concluded that attestation of the Will stood proved from the

testimony of PW-4. No effort was made to call Balbir Singh which fact

should be read against the petitioner.

(ii) The registration of a Will is not per-se conclusive of the execution

of the document; if a suspicious circumstance is raised as was so in the

instant case; registration of the Will would not per-se suffice.

(iii) The subject matter of the Will i.e. property No. 18, State Bank

Colony, G.T. Karnal Road, Delhi was an HUF property; the testator

could not have bequeathed this property as it was held for the benefit of

the other coparceners i.e. heirs of Chotey Lal and Goverdhan Lal who

are deemed to be in constructive possession of the suit property.

5       Submissions have been countered.





 6      We have perused the evidence adduced before the trial Court.

PW-4 Yashpal Singh was the attesting witness. He had admitted his

signatures at point 'z' on Ex. PW-4/3; he has also admitted that

Ex.PW-4/3 bore the signatures of the testator and the second attesting

witness when he had signed Ex. PW-4/3. Before the testimony of the

witness could be concluded, he stopped appearing. On an application

filed by the petitioner bailable warrants were ordered against him;

thereafter on a prayer made by the petitioner PW-4 was declared hostile.

On a categorical question put to this witness, he admitted that the second

witness had signed Ex. PW-4/3 at the point which bore the stamp of

R.R. Bhardwaj. Even in his cross-examination, on a specific suggestion

given to him, he reiterated that his signatures appear on Ex. PW-4/3.

7 Section 63 (c) of the Act reads as under:-

"Execution of the unprivileged Wills

(c) 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. "

8 This section sets out a mandatory requirement for the proof of a

Will. The petitioner seeking relief must show that the testator had

signed the Will or it had been signed by some other person in the

presence of the testator who has personally acknowledged his

signatures. A Will is also required to be attested by two or more

witnesses. It is however not necessary that more than one witness be

present at the same time. No particular form of attestation is also

necessary.

9 The testimony of PW-4 has to be tested on this touch stone. PW-4

in clear and categorical terms has admitted his signatures on Ex.PW-4/3.

PW-4 was working as a Clerk with the document writer at Kashmere

Gate at the relevant time; he has admitted that he used to sign as a

witness on documents 2-3 times in a month; there was a heavy rush hour

in the office of the Sub-Registrar till 2-3 P.M and as such he could not

notice as to at which place the second witness had signed near the

stamp. He has also admitted the factum of the testator having signed the

document as also the second witness Mr. R.R. Bhardwaj having attested

it over the stamp affixed of R.R. Bhardwaj. This deposition clearly

establishes that PW-4 had signed Ex. PW-4/3 knowing fully well that he

was signing in his capacity as an attesting witness; he had in fact signed

Ex.PW-4/3 after the testator had affixed his signatures on it; the second

witness was also known to him by name and reference to R.R.Bhardwaj

has been noted; PW-4 having admitted that R. R. Bhardwaj had signed

over the stamp affixed of his name. It is also not in dispute that the

testator was present for the registration of the document which is clear

from the back page of Ex.PW-4/3 where the names of other two

witnesses Yashpal Singh and R.R. Bhardwaj have also been noted. In

fact no suggestion has been given to PW-4 on this count that the testator

was not present at that time.

10 Requirement of law is that attesting witness has to sign in the

presence of the testator which requirement thus stands fulfilled.

Judgment relied upon by the learned counsel for the appellant reported

as JT 1995 (&) S.C. 48 Kashibai W/o Lachiram & Anr. Vs. Parwatibai

W/o Lachiram & Others would have no application to the present facts.

11 The second attesting witness to Ex. PW-4/3 was R.R. Bhardwaj.

R.R. Bhardwaj had allegedly filed an application under Order 1 Rule 10

of the Code of the Civil Procedure seeking impleadment in the present

petition; application being to the effect that he had not attested

Ex.PW4/3. However fortunately or unfortunately this witness could not

be examined as he had expired before the prayer made in his application

could be answered. He not having come into the witness box no

credence can be attached to the submission of the appellant that this

witness was not supporting the Will.

12 The submission of the appellant that Balbir Singh was yet another

attesting witness is incorrect. Ex. PW-4/3 shows the names of the

witnesses in the left column at serial Nos. 1 & 2 where signatures of

Yashpal Singh and R.R. Bhardwaj appear; signature of Dr. Balbir Singh,

a medical practioner appears at the right hand side of Ex. PW-4/3; he

had merely authenticated the Will; he was not the attesting witness; this

is further fortified from the list of witnesses (Part D) filed by the

petitioner wherein Yashpal Singh has been described as an attesting

witness but Doctor Balbir Singh has been assigned the status simplicitor

of a witness. Thus this submission of the appellants that Dr. Balbir

Singh was an attesting witness is negatived.

13 Section 68 of the Indian Evidence Act lays down the mode of

proof of the execution of the Will. Section 68 requires attestation by two

or more witnesses; one of the two attesting witnesses has necessarily to

be examined for proving the execution of the Will.

14 A co-joint reading of Section 63 (c) of the Act and Section 68 of

the Indian Evidence Act show that the essential ingredients of the

aforenoted sections have been met. The testator has affixed his

signatures on Ex. PW-4/3. There is in fact no dispute to this. The testator

was even otherwise a literate man. The endorsement on the back page of

Ex. PW-4/3 also shows that the contents of the document had been read-

over and explained to the testator; this has been certified by the Sub-

Registrar. The two attesting witnesses have also affixed their signatures

in the column of the witness at serial Nos. 1 & 2. This is clear from the

testimony of PW-4. PW-4 has not only admitted his signatures on Ex.

PW-4/3 but he has also admitted that the testator and the second witness

R.R. Bhardwaj had signed Ex.PW-4/3. As noted supra, no particular

form of attestation is prescribed; it is also not necessary that both the

witnesses should be present at the same time; one attesting witness is

also sufficient to prove the execution of the document; the testimony of

PW-4 fulfills these parameters. R.R. Bhardwaj had expired before he

could come into the witness box. Dr. Balbir Singh not being an attesting

witness was not mandatorily required to be examined.

15 The diary (Ex. RW-1/1) written by the testator was also

admittedly in his hand writing. This has been admitted by RW-1 in his

cross-examination. The diary notes the strained relationship of the

testator with the appellants. The intent of the testator can also be

gathered through these writings.

16 There is no doubt to the proposition that the registration of a Will

would not per se dispense with the need or requirement of the due

execution and attestation of the Will which is otherwise required to be

proved in accordance with law. [see (2003) 12 SCC 35 Bhagat Ram &

Another Vs. Suresh and Others]. The fact that the Will was registered

however adds to the authenticity of the document; if its execution and

attestation has otherwise been proved.

17 In AIR 1995 SC 1684 Rabindra Nath Mukherjee and another Vs.

Panchanan banerjee (dead) by L.Rs. and other, the Supreme Court on

this aspect had inter-alia has held as under:-

"In case where a Will is registered and the Sub-registrar certifies that the same had been read over to the executor who on doing so, admitting the contents, the fact that the witnesses to the document are interested lose significance. The documents at hand were registered and it it on record that the Sub-registrar had explained the contents to the old lady. So, we do not find the third circumstance as suspicious on the facts of the present case."

18 In the present case as well, the stamp of Sub-Registrar has

certified that the contents of the documents have been read-over and

explained to the testator. The presumption under Section 114 illustration

(e) of the Evidence Act is attracted; that the official act i.e. the

endorsement of registration was regularly and duly performed.

19 Thus the judgment relied upon by the learned counsel for the

appellant reported as AIR 1962 SC 567 Rani Purnima Debi and another

Vs. Kumar Khagendra Narayan Deb and another would have no

application as this was a case where the evidence had reflected that the

registration was done in perfunctory manner and the officer registering

the Will had not read over its contents to the testator.

20 The written statement filed by the appellants in fact does not

plead any suspicious circumstance; there is no averment of any kind that

there was any undue influence or coercion upon the testator or that he

was not of a sound disposing mind at the time when the document was

executed. In fact no suggestion has also been given to any of the

witnesses of the petitioner that Ex.PW-4/3 was either fabricated or

forged. A bald averment has been made that the property which is the

subject matter of the Will was an HUF property and to support this

submission attention has been drawn to Ex.RW-2/2 to Ex. RW-2/4. This

submission is not fortified by the aforenoted documents. Ex.RW-2/2 is a

letter written by the testator to the Competent Authority seeking

adjustment of his claim of compensation against the purchase of certain

agricultural land situated in Delhi. Ex. RW-2/3 is an agreement to sell

executed between the testator and the State Bank of India Employees

Cooperative Housing Society wherein the testator had agreed to transfer

compensation of Rs.4,110/- to the vendee which he had received from

the Competent Authority. How and in what manner these documents

substantiate the argument of the appellants that the subject matter of the

Will is an HUF property have not been answered; the aforenoted

documents definitely do not answer this proposition.

21 The learned Single Judge has appreciated these contentions in the

right perspective.

22 On no count, do we see any reason to interfere with the impugned

order. Appeal has no merit. It is accordingly dismissed.

INDERMEET KAUR, J.

JANUARY 11, 2013                       SANJAY KISHAN KAUL, J.
A