Delhi High Court
Mrs Surinder Pal Kaur vs State Of Delhi on 10 September, 2015
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 275/2013
% Date of decision: 10.09.2015
MRS SURINDER PAL KAUR ..... Appellant
Through: Mr.S.C.Maheshwari, Sr.Adv. with
Mr.H.C.Kharbanda and
Mr.M.P.S.Tomar, Advocates
versus
STATE OF DELHI ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
1. The present appeal is directed against the judgment and order of
the learned Single Judge of 14.12.2009 in Testamentary Case 48/2005
rejecting the probate application preferred by the present appellant.
2. The facts in brief are that Baba Chakravarti Darvesh
(hereinafter referred to as 'the testator') died on 05.09.2003. The
appellant propounded a Will said to have been executed by the
testator on 07.06.2003. It was inter alia contended that in terms of the
Will the appellant, who is the testator's sister-in-law (brother's wife)
was the sole legatee entitled to his possessions. Besides bequeathing
the "Gaddi" i.e. the control of the religious denomination of the sect
of which the testator was a spiritual leader/Guru, the Will also
FAO(OS) 275/2013 Page 1
conferred rights in respect of a property being property No.E-255,
Greater Kailash-II, New Delhi constructed on a 250 sq. yards' plot
(hereinafter referred to as 'the property'). The appellant applied for
probate, claiming to be the sole legatee, in Test. Case.48/2005.
3. The probate application was supported by the affidavits of the
legal heirs of the testator i.e. arrayed as respondents 2 to 5. They
were the probate applicant's children i.e. brothers and sisters of the
testator. The said respondents expressed "no objection" to the grant
of probate. On 03.03.2006, the learned Single Judge, before whom
the probate petition was listed after citation was published (pursuant
to the order dated 29.11.2005) recorded as follows:
"Citations have been published and copies of the
citations have been filed . There is no opposition
from anybody. In so far as other legal heirs are
concerned, namely, the respondents 2 to 5, they have
already filed their affidavits accepting the Will and
given no objection to the grant of probate.
Evidence shall, accordingly be led by means of
affidavits which shall be filed within two weeks.
List before the Joint Registrar for exhibiting the
documents on 3rd April, 2006 and before the court
for arguments on 8th May, 2006."
4. The probate petitioner relied upon the testimonies of two
attesting witnesses Ms.Dalbir Kaur, PW1 and Mr.Kamaljeet Singh
besides the testimony of Mr.Gurdev Singh PW4 who claimed to have
taken down the Will at the instance of the testator was also relied
upon. The testimonies of both the witnesses who have been said to
have attested the Will were that the testator, who was sight impaired,
FAO(OS) 275/2013 Page 2
dictated his wishes to PW4 Mr.Gurdev Singh who then read over the
written document to him and that both of them signed on it in the
presence of each other. The attesting witnesses further testified that
the Will was prepared at 147, Shivalik Enclave, Landram Road,
Kharar, District Ropar where the deceased/testator lived.
5. The learned Single Judge considered the evidence of the
attesting witnesses and examined the Will. In the impugned
judgment, learned Single Judge noticed a discrepancy in the ink and
difference in pen, to doubt the presence of the two attesting witnesses.
The second ground on which the learned Single Judge doubted the
veracity of the depositions of the two witnesses was with regard to the
manner in which certain words were written. Thereafter, the learned
Single Judge went on to conclude as follows:
"7. By the Will, the deceased had handed over
"Gaddi" of his Sect/ Organization to his sister-in-law
Ms. Surender Pal Kaur on the ground that she was of
Dharmik mind. So far as this handing over of
"Gaddi" is concerned, nobody would have an
objection since this matter relates to his followers.
However, he has bequeathed the property bearing
number E-254, Greater Kailash, Part-II, New Delhi
measuring 250 sq yards in favour of Ms. Surrender
Pal Kaur on the ground that this property was
donated to him by Smt. Gurudayal Kaur. The
photocopy of a true copy of alleged donation deed
placed on record is a scrap. It is settled law that
transfer of immovable property worth more than
Rs.100/- can be done only through a registered
document duly registered with Registrar of Properties
executed on a stamp paper of appropriate value. A
donation deed or a gift deed or any other deed by
which an immovable property worth more than
FAO(OS) 275/2013 Page 3
Rs.100 is transferred, donated or gifted is
compulsorily registrable and no Court can take
cognizance of any unregistered document in respect
of transfer of immovable properties. I, therefore,
consider that the Will, even if it had been considered
as genuine, Will would have given no right to
petitioner over the property bearing number E-254,
Greater Kailash, Part-II, New Delhi as the property
had not been transferred to deceased by virtue of
document Ex.PW1/8."
6. It is urged by Mr.Maheshwari, learned Senior Counsel that the
learned Single Judge fell into an error in minutely examining the Will
in the absence of any suspicious circumstance, contending that it is
only if the court is of the opinion that there are suspicious
circumstances surrounding the execution of a Will that the attesting
witnesses' testimonies can be doubted or even discarded. The
counsel submitted that all the formalities spelt out in Section 68 of the
Indian Evidence Act, 1872 read with Section 63 of the Indian
Succession Act, 1925 had been satisfied. It was secondly urged by
placing reliance upon the judgment of the Supreme Court in
Chiranjilal Shrilal Goenka vs. Jasjit Singh and Others (1993) 2
SCC 507 and Ishwardeo Narain Singh vs. Kamta Devi & Others
AIR 1954 SC 280 that a probate court cannot examine and render
findings on question of title. It was argued that whether the donation
of the property made in 1996 was valid or not was not an issue that
could be gone into by the probate court, which at best could only
conclude whether Will was genuine or not.
FAO(OS) 275/2013 Page 4
7. It is evident from the materials on record that the heirs of the
deceased, other than the probate claimant, had expressed no
objection; there is nothing in the impugned judgment which shows the
awareness of the learned Single Judge to this aspect borne out by the
order dated 03.03.2006 in the testamentary case. The second feature
which this court notices is that both the attesting witnesses support
each other as to the manner in which the execution of the Will took
place as well as the place where the testator affixed his thumb
impression on the Will. As noticed earlier, the testator was sight
impaired and therefore, dependant on the assistance of someone else.
That someone else happened to be PW4 Mr.Gurdev Singh who
clearly deposed that the testator had dictated to him and he wrote the
Will in the presence of the attesting witnesses and also read out the
contents of the Will to the testator. In the absence of any other
circumstance, the mere fact that different pen/writing instrument was
used by the attesting witnesses, could not have been compelled the
learned Single Judge to conclude that the Will was not genuine. We
are of the opinion that the learned Single Judge was rather overly
influenced by the manner in which the donation was allegedly made
of the property to the testator - way back in 1966. Whilst the
correctness of such a transfer or alienation may be an issue vis-à-vis a
third party (whose claims would also be open to adjudication given
that the grant of probate only signifies the court's conclusion that the
genuineness and due execution of the Will was proved), the fact that
such title perhaps did not inhere in the testator or there was a question
mark over it in our opinion could not have led the learned Single
FAO(OS) 275/2013 Page 5
Judge to conclude that the Will itself was invalid. In Chiranjilal
Shrilal Goenka's case (supra) the Supreme Court has held as follows:
"15. .... ..... .... Therefore the only issue in a probate
proceeding relates to the genuineness and due
execution of the Will and the court itself is under duty
to determine it and preserve the original Will in its
custody. The Succession Act is a self-contained code
in so far as the question of making an application for
probate, grant or refusal of probate or an appeal
carried against the decision of the probate court. This
is clearly manifested in the fascicule of the provision
of Act. The probate proceedings shall be conducted
by the probate court in the manner prescribed in the
Act and in no other ways. The grant of probate with a
copy of the Will annexed establishes conclusively as
to the appointment of the executor and the valid
execution of the will. Thus it does no more than
establish the factum of the will and the legal
character of the executor. Probate court does not
decide any question, of title or of the existence of the
property itself."
8. The court had reiterated this position in law after noticing the
previous rulings in Ishwardeo Narain Singh's case (supra) and the
judgment of the Privy Council in Sheoparsan Singh vs. Ramnandan
Prasad Singh AIR 1916 PC 78.
9. In view of the above conclusion we are of the opinion that the
impugned judgment cannot be sustained and is accordingly set aside.
The petitioner is entitled to the probate claimed by her. The appellant
shall be present before the Registrar to complete the formalities for
grant of probate such as furnishing undertaking, security etc. for
proper administration of the probate.
FAO(OS) 275/2013 Page 6
10. List the matter before the Registrar on 23.09.2015.
11. The appeal is allowed in the above terms.
S. RAVINDRA BHAT, J
DEEPA SHARMA, J
SEPTEMBER 10, 2015
rb
FAO(OS) 275/2013 Page 7
