Delhi District Court
Joginder Singh vs The State on 16 July, 2013
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IN THE COURT OF SHRI MUKESH KUMAR GUPTA:
ADDITIONAL DISTRICT JUDGE06: CENTRAL: DELHI
PC No. 43/10
U.I.D No. 02401C0357522010
Joginder Singh
S/o Late Sohan Singh
R/o J3/42 A
Rajouri Garden, New Delhi. ......Petitioner
Vs
1. The State
2. Sh. Mohinder Singh
S/o Late Gurdit Singh
C/o C205, STS
Regidency Shipra Mall
Vebh Khand, Indra Puram
Ghaziabad, UP. .....Respondents
Date of institution of suit : 12.08.2010
Date of assignment : 11.04.2012
Date of hearing final argument : 10.07.2013
Date of Judgment : 16.07.2013
Appearance : Sh. Khushbir Singh, Ld. Counsel for the petitioner.
Sh. Yashpal Singh, Ld. Counsel for the objector.
JUDGMENT :
1. This is a petition under section 276 of the Indian Succession Act, (hereinafter called the 'Act') for grant of probate in respect of a Will dated 24.05.1966 allegedly executed by Gurdit Singh, Son of S. Deva Singh who has expired on 23.09.1968. The petitioner herein Joginder Singh is son of late Sh. Sohan Singh and grand son of the testator. The testator by way of propounded Will has bequeathed his alleged self acquired property bearing no. 788, ward no. 15, Gali Dor Wali, PC No.43/10 S. Joginder Singh Vs. State 1/9 2 Pahar Ganj, New Delhi, by giving life interest in equal shares in favour of his sons Kehar Singh and Mohinder Singh with a stipulation that they shall have no right to transfer the subject property temporarily or permanently. It has further been stipulated in the Will dated 24.05.1966 that after the death of Kehar Singh his half share shall further go in favour of Joginder Singh, Ravinder Singh, Jung Bahadur Singh, all sons of Sh. Sohan Singh and Smt. Shyam Kaur, widow of Sh. Sohan Singh. The remaining half share was to be given in favour of surviving male child of Mohinder Singh after his death.
2. The petition was filed on 11.08.2010 and notices to the legal heirs were issued alongwith statutory publication in the newspaper 'Statesman'. It is so happened that one of the son Mahinder Singh, respondent no. 2 herein has filed objections to the petition on 22.12.2010 thereby claiming the Will to be false, fabricated and forged, besides raising other objections including the petition being not complying with section 277, 280 and 281 of the Indian Succession Act. The following issues were settled vide order dated 08.02.2011 :
ISSUES :
i). Whether the Will in question was validly executed by the testator in sound disposing mind ?
ii). Whether the petitioner is entitled for the probate of the Will as prayed ?
iii). Relief.
3. The matter was then listed for recording of petitioner's PC No.43/10 S. Joginder Singh Vs. State 2/9 3 evidence. It is so happened that vide order dated 11.04.2012, when it was noticed that the original Will has not been filed on record, the petitioner, propounder of the subject Will was called upon to file the original Will in terms of section 276 of the Act for which the counsel for petitioner had prayed for grant of 3 weeks time. It further so happened that the petitioner instead of filing the original Will has moved an application under section 151 CPC thereby seeking permission of the court to lead secondary evidence taking a stand for the first time that the original Will appears to have been misplaced or lost. An additional ground has also been taken by the petitioner that on account of her old age and deteriorating health, he do not remember as to where the same was kept. It has been stated that the same appears to have been misplaced or lost at the time of shifting of residence from Pahar Ganj to Rajouri Garden.
4. It is further pertinent to point out that the alleged Will has been written in Urdu and a copy of translation thereof has also been filed on record.
5. The court considering the settled preposition of law that a petition under section 276 is maintainable only when the original Will has been filed alongwith it called upon the parties to address arguments on maintainability of the present petition.
6. I have heard Ld. Counsels for the parties and perused the entire record. I have given a thoughtful consideration to the same.
PC No.43/10 S. Joginder Singh Vs. State 3/9 4
7. First and foremost, Section 276 of the Indian Succession Act, 1925 prescribes as to how a petition for grant of probate or letter of Administration with Will annexed can be made before a court. The section mandatorily postulates filing of the original Will on record as and when a petition is filed before the probate court, propounding a Will. The section however provides three exceptions from filing of original Will which has also been referred to in section 237, 238 and 239 and cover the cases where a limited grant (in duration) is given by the court in respect of either lost or destroyed Will or in the eventuality when the propounder though in knowledge but not in possession of the Will has already requested the person in possession of the Will who in turn has either refused or neglected to deliver it to the propounder, though a copy of the same has been given to the executor. The law prescribes that even in such a case a limited grant can be given by a probate court uptil a Will or its authenticated copy is produced by the propounder. Thus section 276 of the Indian Succession Act, 1925 mandates the filing of original Will unless the case is strictly covered within the purview of exceptions mentioned aforesaid. The rational behind the filing of the original Will has been discussed in a catena of judgment of Hon'ble Supreme Court as earlier as in 1959 when in a celebrated case reported as (1959 Supp. 1 SCR 426 titled H. Venkatachala Iyengar Vs. B. N. Thimmajamma which has recently been reiterated by the Hon'ble Apex Court in Vol. II (2012) SLT 629 titled Mahesh Kumar (Dead) by L.Rs. Vs. Vinod Kumar and Ors, has held :
"There is one important feature PC No.43/10 S. Joginder Singh Vs. State 4/9 5 which distinguishes a Wills from other documents, unlike others documents will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same inquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will".
Therefore the original Will is required to be filed on record right in a probate petition filed before the court.
8. Ld. Counsel for petitioner has vehemently tried to argue that since the Will is lost or misplaced, the court is required to allow the petitioner to lead secondary evidence for proving the same and accordingly an application to this effect under section 151 CPC referred to above, is also stated to have been PC No.43/10 S. Joginder Singh Vs. State 5/9 6 moved. Ld. Counsel for respondent/objector on the other hand, has vehemently argued that a petition under section 276 of the Act can only be continued, with the original Will except in the cases which were covered under section 237 to
239. It has been stated that in the absence of the same, the petition is not maintainable and cannot continue before the court. Ld. Counsel for petitioner has also relied upon the pronouncement of law laid down by our own High Court in 1986 RLR 213 titled H.P.S. Chawla Vs. State besides relying upon the pronouncement of law laid down in SLP (civil) No. 26252/08 titled Ashish Dhiman & Anr. Vs. State & Ors., decided by the division bench of the Hon'ble Apex Court comprising of Hon'ble Mr. Justice Mukundakam Sharma and Hon'ble Mr. Justice Anil R. Dave.
9. Now adverting to the careful scrutiny in the facts and circumstances of the present case in the light of earlier discussion. It has been now a settled preposition of law that a petition under section 276 of the Act requires the original Will to be filed alongwith petition unless the case is covered within the purview of section 237 to 239. The aforesaid preposition of law has clearly been held by our own Hon'ble High Court as also by the Hon'ble Apex Court in the catena of judgments. In 1986 RLR 213 (supra), the Hon'ble Delhi High Court in a similarly circumstanced case has clearly held that filing of the original Will alongwith the application under section 276 shall be mandatory as sub section (1) of section 276 provides that application for probate or for letters of administration with Will annexed shall be required to made with the Will except in cases mentioned in section 237, 238 PC No.43/10 S. Joginder Singh Vs. State 6/9 7 and 239 which deals with the case of a lost or destroyed Will or the case where a person in possession of the original Will has refused or neglected to deliver it to the propounder. In the instant case, the petition has been filed under section 276 of the Act by the petitioner on 11.08.2010 and it was only for the first time when the court asked for compliance of statutory requirements on 11.04.2012, the counsel for petitioner has asked for 3 weeks time to file the same. The counsel instead of complying the directions has then moved an application on 06.09.2012 that to under section 151 CPC for leading secondary evidence. Ld. Counsel for petitioner Sh. Khushbir Singh, during the course of arguments has tried to vehemently argued that the case needs to be recovered within the purview of section 237 however, it is pertinent to point out that the petitioner in original petition has nowhere made a pleading or contention that the original Will was in fact lost or mislaid after the testator's death or the same has been destroyed by the wrong or accident and not by an act of testator. It was only when the propounder has clearly stated the aforesaid facts to be proved at a later stage a limited grant is allowed under the law uptil the original or the authenticated copy thereof is produced. If the entire petition of the petitioner is carefully perused, there is not even single whisper about the fact that the original Will has been lost or mislaid. It has not been stated, under which all circumstances the same was lost, destroyed or mislaid. The petition has been made for grant of probate under section 276 of the Act and not for a limited grant of probate based on the copy or draft of a lost Will. Even if, the court stretches PC No.43/10 S. Joginder Singh Vs. State 7/9 8 itself to the maximum, when the question was raised for the first time on 11.04.2012, the factum of the Will being lost or destroyed has not been stated and time was prayed for filing the original. It was only on 06.09.2012 that the petitioner thought of filing of application for leading the secondary evidence without any averments in the petition seeking a limited grant of the alleged Will uptil the original or authenticated copy thereof is produced. The same cannot be allowed in law and clearly appears to be an afterthought to escape the rigours of law only for the reason that the case may continue. It is not a case of the petitioner that he has come before the court at first instance thereby clearly stating that the original Will has been lost or destroyed. Even today, in the application under section 151 CPC, the petitioner has taken vague stands that the same must have been lost or destroyed during shifting. It has not been informed to the court as to how the petitioner herein has come in possession of the copy of the Will nor any pleadings to this effect has been made even today in the application. The Hon'ble Apex Court in Ashish Dhiman's case (supra), after considering the entire facts and circumstances has categorically held that the petitioner is required to place the original Will on record alongwith the probate petition under section 276 of the Act, which he has failed to do so despite being asked by the court to file the same. The aforesaid preposition of law is binding and settles a law of the land to be scrupulously followed. In one of the celebrated case reported in (1979) 1 SCC 61 titled Durga Prasad Vs. Debi Charan , the Hon'ble Apex Court has even gone to the extent of discussing the case of a lost PC No.43/10 S. Joginder Singh Vs. State 8/9 9 Will wherein the Hon'ble Court has even held that if the Will is not found after testator's death, the same creates a presumption that the Will was destroyed by the testator himself. Thought the Hon'ble Apex Court while discussing the earlier law relating to the presumption that if the original Will is not found after testator's death, the same shall lead to a presumption that the testator destroyed it with an animo revocandi has settled a law by laying down the test that the presumption of such being revoked by the testator is a rebutable one which is required to be tested on the facts and circumstances of the case. The rational behind this discussion is that the Will by its very nature is presumed to by document different from other document assuming solemnity since its speaks only from the death of the testator. Natural corollary would be that filing of the same alongwith petition for probate under section 276 shall be mandatory to be proved not only like other documents with the other requirements of proof as also after complying the mandatory requirements of section 63 of the Act, read with section 68 of the Evidence Act.
10.Having discussed the aforesaid, this court is of the considered opinion that the present petition cannot continue under section 276 of the Act, the petition is liable to be dismissed. The same is accordingly dismissed as being not maintainable.
11.File be consigned to Record Room after due completion.
(MUKESH KUMAR GUPTA)
DATED 16.07.2013 ADDL.DISTT.JUDGE06
ANNOUNCED IN THE OPEN COURT (jb) CENTRAL/DELHI
PC No.43/10 S. Joginder Singh Vs. State 9/9
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PC No.43/10 S. Joginder Singh Vs. State 10/9