Sudesh @ Alka vs The State & Ors.
2017 Latest Caselaw 3576 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 314/2007

%                                                     25th July, 2017

SUDESH @ ALKA                                          ..... Appellant
                          Through:       Mr. Manish Aggarwal, Adv.

                          Versus

THE STATE & ORS.                                   ..... Respondents

Through: Mr. Amarjit Singh,

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This first appeal under Section 299 of the Indian

Succession Act, 1925 is filed against the judgment of the probate court

dated 02.05.2007 by which the probate court below has dismissed the

probate petition filed by the present appellant, petitioner before the

probate court.

2. The facts of the case are that the appellant/petitioner

sought probate of the registered Will dated 25.06.1976 of her mother

Smt. Krishna Wanti. The bequest is with respect to the property No.

30/32-A, West Patel Nagar, New Delhi and which has been

bequeathed to the appellant/petitioner by the registered Will dated

25.06.1976. Smt. Krishna Wanti died on 06.09.1979 leaving behind

one son and three daughters. The appellant/petitioner is one daughter

of Smt. Krishna Wanti.

3. In the probate case, objections were filed on behalf of

two other legal heirs of late Smt. Krishna Wanti, namely, the son Sh.

Kaushal Kumar and one daughter Smt. Pushp Lata. However, both

these objectors Sh. Kaushal Kumar and Smt. Pushp Lata did not lead

any evidence whatsoever and their right to lead evidence was closed

as the opportunities given for leading evidence were not availed of.

The order of closing evidence of the objectors has admittedly become

final.

4. The appellant/petitioner led evidence of three witnesses.

One witness is the appellant/petitioner herself. Second witness is the

attesting witness of the Will Sh. Ved Prakash. The third witness was a

clerk from the office of the Sub-Registrar to prove registration of the

Will.

5. The attesting witness Sh. Ved Prakash PW-3 has duly

proved the execution and attestation of the Will. He has proved

signing of the Will by the testatrix Smt. Krishna Wanti in his presence

and in the presence of the other attesting witness Sh. Rattan Lal. PW-

3 has also deposed that both the attesting witnesses Sh. Rattan Lal and

he himself signed in front of the testatrix. It is also deposed that the

testatrix was of sound disposing mind and in fact for which a

certificate appears at the last page of the Will of Dr. Amar Nath

Marwah that the testatrix was of sound disposing mind. As per

Section 68 of the Indian Evidence Act, 1872 a Will can be proved by

summoning at least one attesting witness, and which has been done in

the present case.

6. The probate court below has dismissed the probate

petition on account of completely minor inconsistencies and

contradictions inasmuch as there is some issue with respect to (i)

whether the deceased testatrix was doing stitching at home or was

doing stitching at a stitching centre where the sister of the attesting

witness Sh.Ved Prakash was also working, (ii) that the appellant/

petitioner as PW-1 admitted that the mother Smt. Krishna Wanti

wanted to give the share to Sh. Kaushal Kumar but simultaneously,

appellant/petitioner deposed that Sh. Kaushal Kumar used to ill-treat

and beat the testatrix, (iii) as to why would a certificate of a doctor be

required for a healthy person and thereby the trial court has erred that

extra caution in taking a doctors certificate is not a suspicious

circumstance and thus the doctor's signature taken on the last page of

the Will was with respect to the sound disposing mind of the testatrix,

(iv) of the fact that the attesting witness Sh. Ved Prakash did not

accompany the testatrix for registration of Will although there were

two other attesting witnesses of the Will including the advocate Sh.

A.L. Joshi who was sitting in the Sub-Registrar's office and who got

the Will registered etc etc. In my opinion, the probate court below has

committed a clear cut illegality in failing to hold that the Will has been

proved and this is all the more so because whereas the

appellant/petitioner led evidence to prove due execution and

attestation of the Will as also soundness of the mind of the testatrix,

the respondents/objectors led no evidence. Once the

respondents/objectors led no evidence, i.e they had no courage to enter

into the witness box and prove their case/objections and stand the test

of cross-examination, the probate court below ought to have granted

probate of the Will dated 25.06.1976 of the deceased testatrix Smt.

Krishna Wanti and which was proved on record as Ex.PW3/1.

7. At this stage, learned counsel for the legal heirs of the

objector late Sh. Kaushal Kumar argues that since a civil suit was filed

by these respondents and this civil suit for partition has been decreed

by the Court of Sh. Rakesh Kumar-IV, Additional District Judge-06,

West District, Tis Hazari Courts, Delhi and wherein the legal heirs of

the objector Sh. Kaushal Kumar/respondents have succeeded in

establishing that the bequeathed property at Patel Nagar did not

belong to the mother Smt. Krishna Wanti, therefore it is argued that

though the Will can be held to be proved, however, the issue with

respect to the ownership of the Patel Nagar property by Smt. Krishna

Wanti be left open for being decided in the civil suit since the

judgment in the civil suit dated 15.03.2017 passed by Sh. Rakesh

Kumar-IV, Additional District Judge-06, West District, Tis Hazari

Courts, Delhi is a subject matter of an appeal which is pending in this

Court.

8. In view of the aforesaid concession argument and stand

on behalf of the legal heirs of the objector Sh. Kaushal Kumar, the

probate petition is allowed and it is held that the appellant/petitioner

has succeeded in proving the due execution and attestation of the Will

Ex.PW3/1 being the Will dated 25.06.1976 of late Smt. Krishna Wanti

and appellant/petitioner is granted probate of this Will Ex.PW3/1

dated 25.06.1976 of Smt. Krishna Wanti, however, the issue with

respect to whether at all Smt. Krishna Wanti had ownership rights or

any title in the property No. 30/32-A, West Patel Nagar, New Delhi is

not decided in these proceedings and is left open for being decided in

the civil proceedings between the parties emanating from the Suit No.

609300/2016 titled as Chander Mohan Sharma vs. Sudesh @ Alka and

two other defendants decided by the Court of Sh. Rakesh Kumar-IV,

Additional District Judge-06, West District, Tis Hazari Courts, Delhi

in which the judgment dated 15.03.2017 is passed and which

judgment is under challenge by way of filing of a first appeal in this

Court being RFA No.581/2017 and which is pending.

9. The appeal is allowed and disposed of, however, with the

observation that the issue of title with respect to the Patel Nagar

property is not decided in these proceedings and is left open to be

decided in the civil proceedings in the aforesaid suit for partition filed

by the legal heirs of late Sh. Kaushal Kumar, S/o Late Smt. Krishna

Wanti, testatrix.

JULY 25, 2017/pk                            VALMIKI J. MEHTA, J