Judgment:
$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on:
25. h May, 2017 Pronounced on:
31. t May, 2017 TEST.CAS. 5/2017 & IA No.533/2017 + MRS NEELAM SAHGAL ALIAS NELLU SAHGAL Through : ........ Petitioner
Mr.Harish Malhotra, Sr Advocate with Mr.Gaurav Puri, Advocate. versus MRS SEEMA MEHRA & ORS ........ RESPONDENTS
Through : Mr.P.V.Kapur and Mr.Anil Airi, Sr. Advocates with Ms.Divya Kapur, Mr.Vimal Nagrath, Ms.Pratibha Sridhar, Gupta, Mr.Sidhanth Kapur, & Mr.Jitender Panchal, Advocates. Ms.Kaveri CORAM: HON'BLE MR. JUSTICE YOGESH KHANNA YOGESH KHANNA, J.
1. This is a petition under Section
of the Indian Succession Act, 1925 for grant of letter of administration with the Will annexed thereto.
2. The case of the petitioner is deceased Brij Mohan Nanda s/o late Lala Shanker Dass Nanda was a Hindu and a permanent resident of 6/3B, Roop Nagar, Delhi– 110007. He died on 07.12.2016 at Delhi leaving behind the Will dated 07.06.2006 duly registered with the Test Case. No.5/2017 Page 1 of 7 Office of Sub Registrar–I, Delhi bearing registration No.2689, Book No.3, Vol.No.611, at page Nos.41-44 on 07.06.2006. This Will was duly executed by the Testator by appending his signatures on each and every page and was duly witnesseth by two person. At the time of his death, Brij Mohan Nanda had various movable and immovable properties – the details of which is filed per Annexure – C. The deceased was a Hindu by religion and at the time of his death, he left behind the petitioner and respondents Nos.1 & 2 as his daughters. He did not leave behind any other legal heir except the parties to petition – as his wife had pre-deceased him.
3. It is alleged that on 07.06.2006 the deceased executed his last Will and Testament at Delhi in a sound, stable and disposing mind in the presence of two witnesses and got it registered. The original Will was handed over to the petitioner which was duly published by the petitioner on 12.12.2006 by handing over a copy of the Will to the respondents. The Will does not appoint any executor and hence the petitioner had filed the present petition.
4. The Will gives list of various assets which the deceased owned at the time of his death. Some of the assets as are mentioned in sub- para A of para 5 and para 6 of the petition are to be jointly shared by all children of the deceased while some of the assets would go individually to each of the daughters, as stated in sub paras (1), (2) and (3) of para 5 of the petition. The list is also annexed as a schedule (and a detail) along with the petition. The deceased had made a provision of `5 Lac to be spent on his cremation and last rites. Test Case. No.5/2017 Page 2 of 7 5. The original Will dated 07.06.2006 is filed along with the petition. The same is duly registered with the office of Sub Registrar – 1, Delhi vide registration No.2689, Book No.3, Vol.No.611, at page Nos.41-44 on 07.06.2006.
6. In the objections, so amended, the execution of the Will dated 07.06.2006 has not been disputed by the respondents and rather they rely upon the same and hence submit that probate may be granted to the petitioner since the parties have orally settled their disputes to maintain harmony in their relations, being real sisters. An affidavit dated 29.05.2017 is also filed by the petitioner giving details of moveable and immoveable assets for which probate/letter of administration is sought in favour of the petitioner (per list – Annexure-A); and in favour of respondents No.1 (per list – Annexure B) and in favour of respondent No.2 (per list –Annexure C) annexed to the said affidavit. Yet another affidavit dated 30.05.2017 is filed by the petitioner stating inter alia that the whereabouts of the two attesting witnesses are not known.
7. As the execution and registration of the Will is not in dispute, there would, even otherwise, be no necessity for examining the attesting witness(es), per Kamla Nijhawan vs. Sushil Kumar Nijhawan & Ors 215 (2014) DLT386 where a Coordinate Bench has held as under:-
"“16. Execution of the Will dated 22.08.1995 has not been disputed by the Defendants rather they have very much relied on Defendants do not say that the same. The the Will dated Test Case. No.5/2017 Page 3 of 7 22.08.1995 is required to be proved. There are several properties in respect of which bequest has been made in the instant Will. The property concerned in the instant suit is ground floor of property No.13/27, West Patel Nagar, New Delhi-110008.
17. In Thayyullathil Kunhikannan & Ors. v. Thayyullathil Kalliani & Ors., AIR1990Kerala 226, a Division Bench of the Kerala High Court held that Section 58 of the Indian Evidence Act, 1872 has to be read as overriding Section 68 and as obviating the necessity for calling an attesting witness, unless the execution of the Will or the attestation is in dispute. In para 34, this is what the Division Bench had to say about no requirement of proof of the Will where its execution and the capacity of the testator to execute the Will is admitted:-
""36. Order 8 Rule 5 of the C.P.C. provides that unless there is a specific denial of any allegation of fact made in the plaint, it shall be taken to be admitted. Section 58 of the Evidence Act provides that no fact need be proved in any proceedings, which by any rule of pleadings in force at the time, the parties are deemed to have admitted by their pleadings. In this case, in the absence of any denial in the written statement, the genuineness and the validity of the will, Ext.A1 must be deemed to have been admitted by the law of pleadings, namely Order 8 Rule 5, and therefore that fact was not required to be proved at the trial. Section 68 states that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there Test Case. No.5/2017 Page 4 of 7 fact that is to the proviso be an attesting witness alive. The proviso to the section which, was introduced by the amending Act 31 of 1926 makes an exception in the case of any document, not being a will, which has been registered, unless its execution by the persons by whom it purports to have been executed, is specifically denied. The the proviso is not applicable to wills, and that it does not make an exception in the case of registered wills, does not lead to any inference that a will cannot be acted upon or used as evidence, unless it has been proved by an attesting witness. The only effect of that registration of the will by itself does not obviate the necessity of calling an attesting witness to prove it, if it is otherwise required to be proved. The proviso does not speak of a case where a will is not in dispute. Section 68 relates those documents which require to be proved at the trial of a suit. If by any rule of law or of pleadings, such proof is not required, section 68 cannot operate to insist on formal proof by calling an attesting witness. Section 58 has to be read as overriding section 68 and as obviating the necessity for calling an attesting witness, unless the execution of the will or the attestation absence of any such plea in the written statement, the height of technicality and waste of judicial time to insist on examination of an attesting witness, before a will could be used as evidence. Phipson on Evidence 12th Edition (1976) explains the rationale behind examining an attesting witness as in dispute. In it will be is the Test Case. No.5/2017 Page 5 of 7 its execution, that he is the witness appointed or agreed upon by the parties to speak to the circumstances of "an agreement which, may be waived for the purposes of dispensing with proof at the trial."
(Paragraph 1751) In paragraph 1757, the learned author points out that proof of execution of documents required by law to be attested is dispensed with although the attesting witness may be alive and in court) "when the execution has been admitted for purposes of trial."
Order 8 Rule 5 C.P.C. deems the execution of the will to be admitted in the absence of any denial thereof in the written statement. Examination of an attesting witness is therefore unnecessary when the parties have not joined issue on the validity or genuineness of the will."
18. I do subscribe to the view taken by the Division Bench of the Kerala High Court that when the execution of the Will and capacity of the testator to execute the Will had not been disputed, the Will can be taken to be proved, particularly in a civil suit.” 8. Thus, considering the law above and where Shri P.V.Kapur, the learned senior counsel for respondents has made a statement at bar on behalf of the respondents, that the respondents shall not dispute the capability of their father to execute the Will; the execution of Will dated 07.06.2006 by their father in sound, stable and disposing mind; in the presence of two witnesses and that it was his last Will, duly registered on 07.06.2006, so there is no impediment to grant of letter of administration for the estate of the deceased with Will dated Test Case. No.5/2017 Page 6 of 7 07.06.2006 annexed, as prayed for.
9. Consequently, in view of Kamla Nijhawan (supra), I grant letter of administration of estate of Late Brij Mohan Nanda with Will dated 07.06.2006 annexed. The details of his estate is given in affidavit dated 29.05.2017.
10. Registry to issue the letter of administration with Will dated 07.06.2006 annexed, subject to valuation to be obtained by this Court from the SDM and other agencies, if necessary and on paying the requisite stamp duty etc and also upon their furnishing administration bond and surety bond.
11. In view of above, the petition and pending applications, if any, stands disposed of. YOGESH KHANNA, J MAY31 2017 M/VLD Test Case. No.5/2017 Page 7 of 7