Delhi District Court
Premlata vs State And Ans on 21 March, 2024
Ms. Premlata Vs. State & Anr.
DLST010014892019
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-02,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Presiding Judge: Dr. Yadvender Singh
PC No. 11/2019
Filing No. 600/2019
CNR No. DLST01-001489-2019
In the matter of:-
Ms. Premlata
W/o Raghuvir Singh
D/o Late Kishan Lal
R/o G 328, Phase-VI,
Aya Nagar Extn,
New Delhi-110047 ...............Petitioner
Versus
1. State
Through the Govt NCT of Delhi
2. Ms. Sunita
W/o Surajpal,
D/o Late Kishan Lal
R/o Village Alahadaspur Chammu,
PC No. 11/2019
CNR No. DLST01-001489-2019
Page 1 of 29
Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024
Ms. Premlata Vs. State & Anr.
PO: Chandausi (Raholi),
Tehsil Chandausi, PS: Baniather,
District: Sambhal,
U.P. 204412
.............Respondents
Date of Institution : 05.03.2019
Date of reserving the judgment : 21.03.2024
Date of pronouncement : 21.03.2024
Decision : Allowed
PETITION UNDER SECTION 270 AND 276 OF THE
INDIAN SUCCESSION ACT FOR GRANT OF PROBATE
OF THE WILL DATED 20.03.2015 OF THE DECEASED
SH. KISHAN LAL AND LETTER OF ADMINISTRATION
FOR THE MOVABLE AND IMMOVABLE PROPERTIES
OF SH. KISHAN LAL
JUDGMENT
1. The present petition has been filed by the petitioner under Section 270 and Section 276 of the Indian Succession Act, for grant of probate of the Will dated 20.03.2015 of the deceased Sh. Kishan Lal and for Letters of Administration for the movable and immovable properties of Sh. Kishan Lal. The petition is opposed by respondent No.2 i.e. sister of the petitioner. The case of the petitioner, as per the petition, is as under:
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1.1. That petitioner and respondent no.2 are biological daughters of Late Sh. Kishan Lal. The testator Sh. Kishan Lal expired on 13.08.2015. The wife of the testator namely Smt. Kalawati also died prior to the testator. The testator lastly resided at G-328, Phase-VI, Aya Nagar Extn., G Block, Aaya Nagar, New Delhi. The testator executed notarized Will on 20.03.2015 as his last Will. The petitioner is the beneficiary of the Will. The testator Sh.
Kishan Lal bequeathed the property i.e. agriculture land Gata No. 388/0-283 Hectare lagani 14-90 rukba and 391/1- 222 Hectare and 389/0-110 Hecture and 388 Min/0-080 Hectare 389/0-110 Hectare three kita Rakbai 1-412 Hectare lagani 79-35 rukba and 219 k Rakbai 0-130 hectare Lagani 6-85 rukba and 222/0-036 hectare and 223/0-196 hectare, total 2 kita rakbai 0-232 hectare lagani, 13-00 rukba situated at Village Kapasi, Tehsil Amroha, Dist: Amroha (UP) in favour of the petitioner and the respondent No.2 in equal shares. However, the petitioner was in possession of the bequeathed property. The son of the testator died by accident during the lifetime of Late Sh. Kishan Lal and at the time of death of the testator, both the daughters were the only surviving/living legal heirs. Hence, the present petition has been filed by the petitioner.
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2. Vide order dated 11.03.2019, the citation was directed to be issued as per law. Notice of the petition was directed to be issued to respondents. The citation was published in the newspaper "The Statesman".
3. Respondent No. 2 has filed written statement to the present petition. She opposed the present petition on the following grounds:-
3.1. The respondent has only one objection that the petitioner demanded the letters of administration and other prayers in para no. (a) to (c) only in her favour and not in favour of the respondent no.2/Smt Sunita. She submitted that if the petitioner amended the prayer or give her statement before the court, then she, being a biological daughter of Late Kishan Lal and one of the legal heirs, has no objection. The petitioner intentionally mentioned in the petition and prayer clauses including its sub paras No. (a) to (d), which are admitted by the respondent no.2 with extent to the grant probate of the Will dated 20.03.2015 and letter of administration and also appoint the respondent no.2 Smt Sunita as executor of the Will dated 20.03.2015 as mention in prayer clauses (a) to (c).
3.2. In parawise reply, respondent no.2 admitted the PC No. 11/2019 CNR No. DLST01-001489-2019 Page 4 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
contents of the petition. She submitted that she is also the legal heirs/beneficiary to the Will according to the Will dated 20.03.2015 and petitioner alone is not the beneficiary of the Will.
4. On the basis of record available, following issues were framed vide order dated 16.03.2020 :
"1. Whether the petitioner is entitled for grant of Probate/letters of administration with Will in her favour? OPP "2. Relief."
5. One additional issue was also framed vide order dated 04.05.2023, which is as under:
"IA. Whether this Court has territorial jurisdiction to decide the present petition? OPP"
6. The petitioner was asked to lead evidence. The petitioner examined herself as PW1. She tendered her evidence by way of affidavit Ex.PW1/A. She has reiterated the facts stated in her petition. She has relied upon the following documents :
a) Copy of PAN Card and Voter Identity card of the petitioner as Ex.PW1/1 (colly.) (OSR).
b) Original death certificate issued by SDMC, South Delhi as Ex.PW1/2.
c) Copy of certificate issued by Head Master, Village PC No. 11/2019 CNR No. DLST01-001489-2019 Page 5 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
Joya, District Amroha as Ex.PW1/3.
d) Original Will of Sh. Kishan Lal as Ex.PW1/4.
e) Photocopy of registration of marriage of plaintiff, District Barreli, U.P. as Ex.PW1/5.
7. During the cross-examination on 21.09.2021, PW1 admitted that as per the Will Ex.PW1/4, the property was equally shared between her and her sister Sunita. She deposed that her father had only one marriage with her mother Late Ms. Kalawati and they were four siblings i.e. one brother and two sisters. Her brother namely Dayanand was expired in the year 1987. She deposed that she had no objection if the property mentioned in Will dated 20.03.2015 of her father, was distributed between her and her sister equally. She further deposed that his father during his life never done second marriage nor had any live in partner or a person to take care of him. She deposed that both of them are only legal heirs of their father. During her cross-examination on 01.06.2022, PW1 admitted that her sister Smt. Sunita W/o Sh. Suraj Pal has equal share in all movable/immovable properties of her father Late Kishan Lal. She deposed that she has no objection regarding the share of her sister Smt. Sunita. She admitted that her father had only one wife during his lifetime and they are only two sisters of their father and one son who had been expired. She also PC No. 11/2019 CNR No. DLST01-001489-2019 Page 6 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
admitted that her father had executed one Will on 20.03.2015 in her favour as well as in favour of her sister Smt. Sunita regarding the movable/immovable property. She admitted that no one has any right in movable/immovable property of her father. She further admitted that the agricultural land, as mentioned in para No.5 of my affidavit in evidence, her father had bequeathed the agricultural land bearing Gata No. 388/0- 283 Hectare lagani 14-90 rukba and 391/1-222 Hectare and 389/0-110 Hecture and 388 Min/0-080 Hectare 389/0-110 Hectare three kita Rakbai 1-412 Hectare lagani 79-35 rukba and 219 k Rakbai 0-130 hectare Lagani 6-85 rukba and 222/0-036 hectare and 223/0-196 hectare, total 2 kita rakbai 0-232 hectare lagani, 13-00 rukba situated at Village Kapasi, Tehsil Amroha, Dist. Amroha (U.P) in favour of petitioner and respondent no.2. She admitted that after the death of her mother Smt. Kalawati, her father Late Kishan Lal had been living with her till death and his all medical treatment was done by her and her family in Delhi.
8. Petitioner also examined Smt. Nebedita Mishra as PW-2, who is the attesting witness of the Will. During her cross- examination on 09.02.2023, she deposed that Will was executed on 20.03.2015 in front of her. She identified her signature on the Will Ex.PW1/4 at Mark X. She admitted that that in the Will, PC No. 11/2019 CNR No. DLST01-001489-2019 Page 7 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
the share divided between both the sisters namely Premlata and Sunita. She also admitted that the deceased Kishan Lal was living with petitioner Premlata and she used to look after him during his illness till the last stage of life.
9. Thereafter, no other witness was examined on behalf of the petitioner. Hence, petitioner's evidence was closed vide order dated 09.02.2023.
10. In respondents' evidence, respondent no.2 examined herself as R2W1. She tendered her evidence by way of affidavit Ex.R2W1. She relied upon Will already exhibited as Ex.PW1/4.
10.1. During her cross-examination dated 03.03.2023, R2W1 deposed that they were four children from her father Late Kishan Lal. Premlata is eldest sister. She deposed that she is the second daughter. Third daughter Kanta died during the lifetime of her father. One brother Dayanand, who also died in an accident during the lifetime of her father. She deposed that prior to our marriage, she and her sister Premlata were living with his father at permanent address i.e. Village Kapasi Tehsil Amroha, District Amroha (UP). Her father had married only once during his lifetime. She admitted that her father used to stay with her elder sister Premlata during the last 4-5 years of his death as he PC No. 11/2019 CNR No. DLST01-001489-2019 Page 8 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
was suffering from heart disease and he needed proper care and treatment at Saket in a private hospital. She deposed that her mother Kalawati expired in the year 2000. She further deposed that she and her sister Premlata are the only legal heirs of her father. She admitted that her father had executed a Will Ex.PW1/4 in favour of both the sisters namely Premlata and Sunita. She further admitted that as per the Will they both sisters are only beneficiary.
11. Thereafter, RE was closed vide order dated 03.03.2023.
12. During the final arguments, Ld. counsel for the petitioner submits that inadvertently some important questions were not put in the cross-examination to R2W1, which are necessary for the just and final decision of this case and requests for recalling of R2W1 for cross-examination. His request for recalling R2W1 for further cross-examination was allowed vide order dated 11.03.2024.
13. During her further cross-examination on 11.03.2024, she answered to the question 'Whether you dispute the state of mind/soundness of the testator at the time of execution of the Will', in negative and stated that her father never remained of unsound mind and till the time of his death, he always remained mentally and physically fit. She answered to the question 'What PC No. 11/2019 CNR No. DLST01-001489-2019 Page 9 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
is your main ground of contesting the present petition', that she want to contest the present matter being the half share holder of the testator qua his bequeathed property and apart from the point of being half share holder of the property, she admitted that Will regarding other aspects. She answered voluntarily that the petitioner disputed the fact of half share in her favour by the testator through the Will in question.
14. Time now to deal with the issues.
Issue No.1A: Whether this court has territorial jurisdiction to decide the present petition? OPP
15. The bequeathed property vide Will (Ex.PW1/4) is agricultural land and situated at Village Kapasi, Tehsil Amroha, District Amroha, U.P.
16. Section 270 of Indian Succession Act, 1925 deals with the provision which provides for circumstances when probate or letters of administration to the estate of a deceased person may be granted by District Judge. It further provides that if the testator, at the time of his decease has a fixed place of abode, or any property, movable and immovable, within the jurisdiction of the Judge then the probate of the Will or letters of administration to the estate of the deceased person may be granted by the District Judge.
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17. Section 276 and 278 of the Act deals with petition for probate and petition for letters of administration respectively. Section 270 (2)(a) and Section 278(1)(e) of the Act also provides that for the purpose of territorial jurisdiction of the District Judge in the petition of probate and petition for letters of administration, it is necessary that the deceased at the time of his death had a fixed place of abode or some property within the jurisdiction of the Judge.
18. In the present case, the property bequeathed through Will Ex.PW1/4 is situated at Village Kapasi, Tehsil Amroha, U.P. This immovable property does not fall within the territorial jurisdiction of this court. So, the condition of having some property of the deceased within the jurisdiction of the Judge is not fulfilled. So, now it is time to check the another condition i.e. fixed place of abode of the deceased at the time of his death. Death certificate of the testator Sh. Kishan Lal (Ex.R2W1/X) shows the present address of the deceased as G-328, Phase-VI, Aya Nagar Colony, New Delhi. This address falls within the territorial jurisdiction of this court. The petition discloses that the testator was lastly residing at this address of New Delhi. It is also pertinent to mention here that on 06.01.2024, Ld. counsel for both the parties also submitted that last abode of the testator was within the jurisdiction of this court and none of the parties PC No. 11/2019 CNR No. DLST01-001489-2019 Page 11 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
had any objection on this issue. No other separate evidence was led by any of the parties on this issue.
19. PW1 and PW2 also stated that the deceased was residing at Delhi.
20. In view of the aforesaid documents and evidence on record and in view of the abovesaid discussion, issue No. 1A is decided in favour of the petitioner by holding that this court has territorial jurisdiction for grant of letters of administration in respect of Will dated 20.03.2015.
Issue No.1. Whether the petitioner is entitled for grant of Probate/letters of administration with Will in her favour? OPP
21. Before discussing the matter on merits, it would be relevant to discuss the law relating to the execution and proof of Wills under the Indian Succession Act and the Evidence Act. The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads as under:
"59. Person capable of making Wills --- Every PC No. 11/2019 CNR No. DLST01-001489-2019 Page 12 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
person of sound mind not being a minor may dispose of his property by Will.
"Explanation1.-A married woman may dispose by Will of any property which she could alienate by her own act during her life.
"Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it. "Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
"Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing."
22. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle clear by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason (such as intoxiation, illness or any other such cause) he PC No. 11/2019 CNR No. DLST01-001489-2019 Page 13 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
23. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads as under:
"63 Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
"(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. "(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. "(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at PC No. 11/2019 CNR No. DLST01-001489-2019 Page 14 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
the same time, and no particular form of attestation shall be necessary."
24. As per the mandate of clause (c), a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others:AIR 1959 SC 443 Hon'ble Supreme Court of India has held that a Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will PC No. 11/2019 CNR No. DLST01-001489-2019 Page 15 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that
(i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and
(iv) that the testator had put his signature on the document of his own free will. It further held that ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. The Hon'ble Supreme Court further held that it is necessary to remove suspicious circumstances surrounding the execution of the Will.
25. Hon'ble Supreme Court of India in Jaswant Kaur vs Amrit Kaur & Ors : AIR 1977 SC 74 has discussed the law related to proving a will. It has held as under:
"There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others. (1) The PC No. 11/2019 CNR No. DLST01-001489-2019 Page 16 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
Court, speaking through Gajendragadkar J., laid down in that case the following positions :--
"1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. "2. Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 63 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence."3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
"This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
"4. Cases in which the execution of the will is surround- ed by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances PC No. 11/2019 CNR No. DLST01-001489-2019 Page 17 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
"5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. "6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution' of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus PC No. 11/2019 CNR No. DLST01-001489-2019 Page 18 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
of the propounder to remove all reasonable doubts in the matter."
26. In Shashi Kumar Banerjee & Ors vs Subodh Kumar Banerjee Since deceased through LRs.:AIR 1964 SC 529, Hon'ble Supreme Court has discussed the law relating to the Will to be proved. Hon'ble Supreme Court has held as under:-
"5. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 (S1) SCR 426 : 1959 AIR(SC) 443) and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : 1962 AIR(SC) 567). The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no. such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, PC No. 11/2019 CNR No. DLST01-001489-2019 Page 19 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested."
27. Similarly in Navneet Lal Alias Rangi vs Gokul and Others : AIR 1976 SC 794, Hon'ble Supreme Court of India has laid down the following Principles/Guidelines:-
"From the earlier decisions of this Court the following principles, inter alia, are well established:-
"(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered;PC No. 11/2019
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but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. [Ram Gopal v. Nand Lal and others(1)].
"(2) In construing the language of the will the court is entitled to put itself into the testator's armchair [Venkata Narasimha v. Parthasarathy(2)] and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense....but all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. [Venkata Narasimha's case supra and Gnanambal Ammal v. T. Raju Ayyar and Others(1)].
"(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory [Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer(2)]. "(4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a PC No. 11/2019 CNR No. DLST01-001489-2019 Page 21 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. [Paerey Lal v.
Rameshwar Das(3)].
"(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it, Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. [Ramachandra Shenoy and Another v. Mrs. Hilda Brite and Other(4)]..."
28. Sections 68 of the Evidence Act, which relates to proof of documents required by law to be attested, reads as under:
"68. Proof of execution of document required by law to be attested.--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 be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any PC No. 11/2019 CNR No. DLST01-001489-2019 Page 22 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
29. It is also settled position of law that the jurisdiction of a probate Court is limited only to consider the genuineness of a Will. A question of title arising under the act cannot be gone into the proceedings and construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. Hon'ble Supreme Court of India in judgment titled Kanwarjit Singh Dhillon Vs. Hardayal Singh Dhillon & Ors. Civil Appeal No. 4890/2007 decided on 12.10.2007, while relying upon the judgments titled as CHeeranjilal Shrilal Goenka Vs. Jasjit Singh & Ors. (1993) 2 SCC 507 has held that the Court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in probate proceedings relates to the genuineness and due execution of the Will.
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30. The petitioner's narrative is that petitioner and respondent no.2 are biological daughters and only remaining Class I legal heirs of the testator. The testator died on 13.08.2015. The petitioner executed notarized Will on 20.03.2015 being the last Will. The petitioner is the beneficiary of the Will. The testator bequeathed the property in favour of the petitioner and respondent no.2 in equal shares. However, the petitioner was in possession of the bequeathed property at the time of filing of the petition. The wife of testator had already expired. The only brother of petitioner and respondent no.2 had also died by accident during lifetime of the testator. So at the time of death of testator only two Class I legal heirs were surviving. Accordingly, the letters of administration in respect of the bequeathed property was sought by the petitioner.
31. In the prayer clause of the petition, a prayer of appointment of the petitioner as an executor of the Will was also made, however, perusal of the Will Ex.PW1/4 shows that petitioner was no where appointed as executor of the Will. Accordingly, this issue shall be discussed and be decided only qua relief of letters of administration regarding bequeathed property.
32. It is the duty of the propounder of the Will to prove the Will in question in accordance with law.
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33. In the present case, the petitioner examined herself as PW-1. PW-2 Nibedita Mishra was examined as an attesting witness of the Will (Ex.PW1/4). In her affidavit (Ex.PW2/A), she deposed that she saw the testator wile affixing his signature to the Will. The original Will (Ex.PW1/4) was tendered by PW1 during her examination-in-chief. On 01.06.2022, during her cross-examination, she admitted the suggestion that her father had executed one Will on 20.03.2015 in her favour and in favour of her sister i.e. defendant no.2. All the remaining cross- examination of PW1 and PW2 was focused on only one issue i.e. regarding equal share of the petitioner and respondent no.2 in the bequeathed property.
34. The respondent no.2 also examined herself as R2W1 in respondent evidence. During her cross-examination on 11.03.2024, she answered that her father i.e. testator never remained of unsound mind and till the time of his death, he always remained mentally and physically fit. She also identified signatures of the testator on the Will at point Mark-X1, Mark-Y and Mark-Z. She also answered during her cross-examination that she wanted to contest the present matter being the half share holder of the bequeathed property. She admitted the Will regarding other aspects. She answered voluntarily that as the petitioner disputed the fact of bequeathing of half share in her PC No. 11/2019 CNR No. DLST01-001489-2019 Page 25 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
favour by the testator through the Will in question, that is why she contested the present petition only qua her half share in the bequeathed property.
35. In the reply/written statement also as filed by respondent no.2, the genuineness of the Will was not disputed and the only prayer made was for appointment of respondent no.2 as an administrator of the bequeathed property.
36. As held by the Hon'ble Supreme Court of India in Shashi Kumar Banerjee & Ors. Vs. Subodh Kumar Banerjee since deceased Through LRs.:AIR 1964 SC 529, the mode of of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will under Section 63 of the Indian Succession Act.
37. The role of the court in the present petition is to examine whether the instrument propounded as Will is the last Will or not of the testator or whether the same has been executed in sound disposing mind. The petitioner and respondent no.2 are the daughters of the testator. The respondent has also not disputed the execution as well as the genuineness of the Will. Her only objection was that the letters of administration must not be granted to the petitioner only by considering the petitioner as a sole beneficiary of the Will. As attested witness PC No. 11/2019 CNR No. DLST01-001489-2019 Page 26 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
was examined as PW2 and signatures of the testator on the Will (Ex.PW1/4) were admitted by the respondent no.2 during her cross-examination and moreover, sound state of mind of the testator and genuineness of the Will was also admitted by the respondent no.2, I hold that the petitioner has proved to the satisfaction of the court that Will dated 20.03.2015 (Ex.PW1/4) filed by petitioner is the last and final Will of the testator Late Kishan Lal (since deceased). It is also stand proved that Will Ex.PW1/4 has been duly executed as per law by the testator voluntarily and in sound mind. The court conscience is also satisfied with abovesaid testimonies of the witnesses. In view of the above said discussion, there are no suspicious circumstances surrounding the execution of the Will (Ex.PW1/4) which may led to any contrary inference. The Will (Ex.PW1/4) clearly mentions that testator bequeathed the property equally in favour of his both daughters i.e. petitioner and respondent no.2. In view of the same, issue No.1 is accordingly decided in favour of the petitioner.
Issue No.2: Relief
38. In view of the discussion hereinabove, the petition is allowed to the effect of granting letters of administration to the petitioner qua the bequeathed property as per shares as mentioned in the Will annexed. The letters of administration be PC No. 11/2019 CNR No. DLST01-001489-2019 Page 27 of 29 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Ms. Premlata Vs. State & Anr.
issued in the prescribed form VII along with authenticated copy of the Will Ex.PW1/4 upon furnishing of the proper Court Fee, administration bond and surety bond by the petitioner. The formalities of issuance of letters of administration shall be completed by the petitioner/beneficiary within six months from the date of the judgment as per Section 290 & 291 of Indian Succession Act.
39. The petitioner, as per Section 317 of the Indian Succession Act, shall furnish full and true inventory of the properties and credits mentioned in the Will and exhibit the same in the Court within 6 months from the date of grant of letters of administration in prescribed Form No. 178. The petitioner shall also file true account of the properties and credits within 1 year in prescribed Form No. 179.
40. It is made clear that the granting of letters of administration would not tantamount to any declaration of the title of the deceased to the estate in question. It is further clarified that till the petitioner does not furnish the requisite Court Fee, administration bond and surety bond and do not obtain the letters of administration, duly signed and sealed by the Court as required under Section 290 of the Indian Succession Act, this judgment shall not be read as proof of the same.
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41. The original Will shall remain part of judicial file, in terms of Section 294 of the Indian Succession Act, 1925.
Pronounced in the open Court on this 21st day of March, 2024.
(DR. YADVENDER SINGH) ADDL. DISTRICT JUDGE-02 SOUTH, SAKET COURTS, NEW DELHI.
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