Judgment:
* + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Judgment: August 08, 2017 TEST.CAS. 3/2002 KRISHAN DEV BHARAL & ANR. ........ Petitioner
s Through: Mr. S.K. Bhaduria and Mr. Prem versus Prakash, Advocates STATE & ORS. Through: Mr. Madan Lal and Mr. Varun .....Respondents Nischal, Advocates for respondents No.2 & 3 Ms. Smriti Vashisht, Advocate for LRs of respondent No.4 CORAM: HON'BLE MR. JUSTICE SUNIL GAUR % JUDGMENT In this petition, petitioners are son and a daughter of late Bhadar Sain, who had died on 8th January, 2000 and they are seeking probate of a Will of 26th July, 1994, which is a registered one. One of the attesting witnesses to this Will is Dhan Singh, whose affidavit has been filed with this petition seeking probate. The original Will of 26th July, 1994 alongwith site plan of immovable property No.85 situated in Gautam Nagar, New Delhi-49 has been also filed with copy of death certificate of late Bhadar Sain. First respondent is the State, on whose behalf, report of the Chief Revenue Controlling Authority in respect of aforesaid immovable property, has been placed on record.... RESPONDENTS
No.2 to 7 are the other legal heirs of late Bhadar Sain. Objections have been filed TEST.CAS. 3/2002 Page 1 of 8 by respondents No.2 to 4, who have disputed the Will in question. On the pleadings of the parties, the solitary issue framed on 23rd May, 2006 reads as under: - (i) Whether Sh. Bhader Sain executed legal and valid Will dated 26.07.1994?. OPP (ii) Relief. First petitioner-Krishan Dev Bharal has deposed as PW-1 in support of petition seeking probate of Will in question and has got examined one of the attesting witnesses i.e. Dhan Singh (PW-2) and an official from the concerned Sub-Registrar’s office as PW-3, who has proved the registered Will as Ex.PW-3/1. The original Will on record is Ex.PW-2/1. Respondent No.2-Vaidya Satya Dev Bharal has deposed in support of objections filed. No other evidence has been led by either side. At the final hearing, it was submitted by learned counsel for petitioners that original Will (Ex.PW-2/1) stands proved not only from the evidence of first petitioner, but also from the evidence of attesting witness (PW-2) and the factum of registration of Will in question stands proved from the evidence of PW-3. At the outset, it was submitted by learned counsel for petitioners that deceased was in a sound disposing mind when he had executed the Will in question without any pressure, influence, coercion, force, etc., from any corner and the said Will was attested by two witnesses and one of them has already deposed to prove the said Will. It was submitted that immovable properties in question were the self-acquired properties of Testator, who had rightly excluded one of his sons i.e. Hemant Kumar, who had initiated litigation against Testator and had levelled false and TEST.CAS. 3/2002 Page 2 of 8 reckless allegations against Testator. So, it was submitted on behalf of petitioners that no suspicious circumstance has been pleaded nor exists and that the Will in question stands duly proved and thus, it deserves to be probated. To submit that the court is not concerned with the title of Testator, reliance was placed upon Single Bench decisions of this Court in Anita Khosla v. State and Others, (2010) 96 AIC766(Del) and Laxman Das v. State, 2009 SCC OnLine Del 3218. Reliance was also placed upon Supreme Court’s decision in Sridevi and Others v. Jayaraja Shetty & Ors., (2005) 2 SCC784to submit that the onus to establish allegations of undue influence, fraud and coercion is on the person making such allegations. On the contrary, the precise objection of learned counsel for respondents No.2 to 4/Objectors is that neither the execution nor the attestation of original Will (Ex.PW-2/1) is proved. It was pointed out by learned counsels for respondents No.2 to 4/Objectors that attesting witness’s evidence by way of affidavit was prepared and submitted at the instance of first petitioner. It was pointed out that Will in question is written in English, but it has been purportedly signed by Testator in Urdu and that the Will in question is a fabricated document. Regarding the evidence of official witness from the concerned Sub-Registrar’s office, it was submitted that Registered Will (Ex.PW-3/1) produced by this witness does not tally with the original Will and so, it deserves to be discarded as unreliable. It was pointed out by learned counsels for respondents No.2 to 4/Objectors that the attesting witness (PW-2) was immediate neighbour of the Testator and the scribe of the Will is the son of the attesting witness (PW-2) and they had no personal knowledge about the contents of Will. TEST.CAS. 3/2002 Page 3 of 8 During the course of hearing, learned counsels for respondents No.2 to 4/Objectors had drawn the attention of this Court to the court observation made while recording the evidence of PW-3, the witness from the Sub-Registrar’s office to point out that there were cuttings and over-writing in the Index Register brought by him to prove the factum of registration of the Will. To submit that the onus/burden to prove the Will is on its propounder, reliance was placed by learned counsels for respondents No.2 to 4/Objectors upon Supreme Court’s decision in S.R. Srinivasa and Others v. S. Padmavathamma, (2010) 5 SCC274 H. Venkatachala Iyengar v. B.N. Thimmajamma and Others, AIR1959SC443 Rani Pnrnima Debi and Anr. v. Kumar Khagendra Narayan Deb and Anr., AIR1962SC567 Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR1964SC529 Reliance was also placed upon Supreme Court’s decision in Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC91to submit that mere factum of registration of the Will is not sufficient to prove the due execution and attestation of the Will. Lastly, it was submitted by learned counsels for respondents No.2 to 4/Objectors that the Testator was operated upon for prostate in the year 1991 and was of a feeble mind in the year 1994 and was incapable of understanding things and so, he could not have executed a detailed Will (Ex. PW-2/1) consisting of eight pages and thus, the Will in question deserves to be discarded. Nothing else was urged by either side. With the assistance of learned counsel for petitioners as well as learned counsels for respondents No.2 to 4/Objectors, the evidence on record has been scrutinized and after having heard them in detail and on perusal of the decisions cited, this Court finds that from the evidence of TEST.CAS. 3/2002 Page 4 of 8 first petitioner (PW-1) and that of attesting witness (PW-2), the factum of execution of Will in question is sought to be proved. There is no requirement in law to get a Will registered in Delhi. The precise stand of learned counsels for respondents No.2 to 4/Objectors is that neither first petitioner nor the attesting witness has identified the signatures of the Testator of the Will in question. To examine this basic objection, I have carefully gone through the evidence of first petitioner and I find that he has categorically asserted that the Testator has executed the Will in question while he was in full senses and with his free will and without any coercion and undue influence. First petitioner (PW-1) has been subjected to a detailed and searching cross-examination and I find that the afore-noted positive evidence of first petitioner does not get demolished in the cross- examination. In fact, the due execution and attestation of the original Will (Ex.PW-2/1) stands proved from the evidence of Dhan Singh (PW-2), who has categorically stated in the chief-examination that he has identified the signatures of the Testator, who had signed the Will in question in his presence. Merely because attesting witness has not stated in so many words that the Testator had signed at a specific point, would not dilute the evidence of attesting witness (PW-2) for the reason that the Will in question stands duly proved from the evidence of attesting witness (PW-2). It is so said because attesting witness (PW-2) in his cross- examination has pointedly volunteered that the Testator had signed the Will in his presence and that he identifies the signatures of the Testator. Obviously on the Will in question. It needs no reiteration that evidence is to be read in its context and not in abstract. Upon doing so, this Court TEST.CAS. 3/2002 Page 5 of 8 finds that the Will in question stands sufficiently proved from the evidence of attesting witness (PW-2), who has denied the suggestion that the Will was not signed by Testator in his presence. What is pertinent to note is that the attesting witness (PW-2) in his cross-examination has specifically volunteered that the two lines on the Will (Ex.PW-2/1) were written by the Testator in his own handwriting. What was written by the Testator in his own handwriting towards the end of the Will (EX. PW-2/1) reads as under: - “This will has been prepared as per my desire. The same has been read over and explained to me in the presence of the witnesses mentioned hereinafter. The same is correct. I have appended my signatures after hearing the contents of the Will” Merely because PW-3, a witness from concerned Sub-Registrar’s office, has given a different registration number in his evidence, would not cast any doubt on the factum of registration of the Will in question for the reason that the registration number, as mentioned on the attested Will (Ex.PW-3/1) is the same as mentioned on the original Will (Ex.PW-2/1). Simply because there are two signatures of Testator on each page of the attested Will, would not justify an inference that it is different from the original Will because judicial notice can be taken of the fact that at the time of registration of the Will, Testator is asked to sign on the copy of the Will, which is sought to be registered in the office of the Registrar. Some cuttings or overwriting in the Index Register produced by the official (PW-3) from concerned Sub-Registrar’s office, would not be of any consequence for the reason that the said cutting or overwriting is not TEST.CAS. 3/2002 Page 6 of 8 in respect of the Will in question. Merely because one of the sons, i.e. Hemant Kumar, of the Testator has been excluded from the estate of the deceased, would not justify any doubt regarding the genuineness of the Will because the reason for exclusion of Hemant Kumar is spelt out in the Will itself and it does not give rise to any suspicious circumstance to discard the Will in question. There is no basis to conclude that the Testator was not in a fit state of mind to depose, as such inference cannot be reasonably raised merely because Testator had undergone an operation for prostate in the year 1991. There is no tangible evidence on record to show that Testator had become so weak to render him incapable of executing the Will in question. The proximity of the attesting witness (PW-2) with the scribe of the Will in question cannot be a circumstance to doubt the genuineness of the Will in question. Upon evaluating the evidence on record in the light of the legal position, as spelt out in the cited decisions, I am of the considered opinion that there is no basis to assert that the Testator was not in a fit state of mind to execute the Will in question. The objections to the Will in question by contesting respondents No.2 to 4 are without any substance and hence, petitioners are entitled to probate of the Will (Ex.PW-2/1) in respect of Schedule ‘A’ appended with this petition. In the light of the aforesaid, this petition is allowed.... Petitioner
s are granted probate in respect of the Will (Ex.PW-2/1) subject to petitioners filing the necessary court fees and surety bond on the valuation of the properties as detailed in Schedule ‘A’ to the probate petition. Probate of the Will executed by Sh. Bhadar Sain on 26th July, 1994 be issued to TEST.CAS. 3/2002 Page 7 of 8 petitioners under Section 276 of the Indian Succession Act, with copy of the original Will annexed to it, after retaining a copy of the original Will (Ex.PW-2/1). This petition is accordingly disposed of. AUGUST08 2017 s (SUNIL GAUR) JUDGE TEST.CAS. 3/2002 Page 8 of 8