Delhi District Court
Smt. Usha Rani vs State on 12 December, 2011
"In the court of Sh. V.K Yadav, ADJ-02 (North), Tis Hazari Courts, Delhi"
PC 43/11
Smt. Usha Rani
W/o Sh. Mahiender Kumar
2766/3. Gali Ragio Wali
Patiala, Punjab
India
......... Petitioner
Versus
State
......... Respondent
Date of institution : 09.04.2009
Date of arguments : 09.12.2011
Date of decision : 12.12.2011
JUDGMENT
1. The petition filed on behalf of Smt. Usha Rani u/s 276 of the Indian Succession Act for the grant of Probate/Letter of Administration in respect of the Will of Smt. Motia Rani dated 27.04.2005 is hereby disposed off through this judgment.
2. The precise facts against the back drop of which the petition has been filed are that the testator Smt. Motia Rani, w/o Deviditta Mal having her permanent abode at T5344/8A, Pusa Road, Karol Bagh executed a Will dated 27.04.2005, which was got registered on 15.09.2008. The petitioner herein was the beneficiary under the said Will and since the testator died on 02.04.2008 issue less, while her husband Deviditta Mal predeceased her on 03.05.2005, therefore, the petitioner herein has sought the grant of Probate/Letter of Administration in respect of the aforesaid Will, which was executed and registered at Patiala, Punjab. Since the PC No. 43/11 Page 1 of 8 property in question is located at Delhi, and the testator was the permanent resident at the aforesaid property at Pusa Road, therefore the present petition has been filed in Delhi.
3. Publication, pursuant to the notice/citation was carried out in 'Punjab Kesari' dated 03.09.2009 and as none came to contest rather only one person namely Kasturi Lal, who happens to be the father of the petitioner, gave his no objection, cutting short the process to be followed. None else was there in the list of LR's, therefore the petitioner was called upon to examine the witnesses in support of the case.
4. The petitioner examined three witnesses i.e Kuldeep Singh as PW-2, herself as PW-3 and the official from the Sub Registrar Office namely Gurtej Singh as PW-1 and thereafter the evidence was closed on behalf of the petitioner.
5. Sh. Kasturi Lal appeared as the only potential objector and was examined as OW1 in which he stated that he had two sisters namely Shanti Devi and Motia Rani and unfortunately both her sisters died issue less. The husbands of her sisters were also not alive and that he gave his no objection to the grant of letter of administration of the Will executed by Smt. Motia Rani on 27.04.2005 in respect of the property at Pusa Road in favour of the petitioner. He has categorically stated that there are no legal heirs to her deceased sister Smt. Motia Rani except those who have been mentioned in Annexure A to the petition i.e he himself and the petitioner herein.
6. I have considered the submissions made by Ld. Counsel for the petitioner and have perused the record as well.
7. How a Will is to be proved while considering for the grant of PC No. 43/11 Page 2 of 8 Letter of Administration or probate is the issue before the court. Section 63 of the Indian Succession Act, 1925, contained the relevant law/procedure. And in this context the observations made in the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by PC No. 43/11 Page 3 of 8 two or more witnesses as prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters."
In this context, reference may be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR 578.
In the case of Shashi Kumar Banerjee & other Vs. Subodh Kumar Banerjee AIR 1964 SC 529, the Hon'ble Supreme Court while dealing with the question of mode of onus of proof of Will, laid down the following principles:
"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 Section 63 of 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 signatures 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 PC No. 43/11 Page 4 of 8 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 gave rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, 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 indications 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 of wholly or in part near relations."
8. PW-1 has stated that the Will in question was registered at the Sub Registrar Patiala, Punjab on 15.09.2008 and have placed certified copy of the same on record, which is Ex. PW1/A. The Will, certified copy which is placed on record is in Gurumukhi and translated copy of the same is there on record.
9. PW-2 Kuldeep Singh, who is one of the attesting witnesses had also appeared and testified that the Will Ex. PW1/A was executed by Smt. Motia Rani on 27.04.2005, which was signed by him as well as Smt. Shanti Devi as attesting witnesses. He has categorically stated that Smt. Motia Rani was in sound disposing state of mind at the time of execution of the Will. He although says at the time of registration of the Will but PC No. 43/11 Page 5 of 8 then this seems to be incorrect inasmuch as Smt. Motia Rani had already died on 02.04.2008.
10. There is a presumption with regard to the registered Will that such a document is a genuine document. In this context, the observation made in Gurdial Kaur Vs. Kartar Khan AIR 1998 SC 2881 in the following words touching the aspect of Registered Will are relavant, which goes as follows :
"The law is well settled that if there is suspicious circumstances about the execution of the Will, it is the duty of the person seeking declaration about the validity of the Will to dispel such suspicious circumstances. In this connection, reference may be made to the decision of this court in Rani Purnima Debi Vs. Kumar Khugendra Narayan Deb. Air 1962 SC 567. It has been held in the said decision that if a Will being registered and having regard to the other circumstances, is accepted to be a genuine, the mere fact that the Will is a registered Will it will not by itself be sufficient to dispel all suspicious regarding the validity of the Will where suspicious exist. It has been held that the broad statement of witness that he had witnesses the testator admitting execution of the Will was not sufficient to dispel suspicious regarding due execution and attestation of the Will. It has been specifically held that registration of the Will by itself was not sufficient to remove the suspicion. Relying on an earlier decision of this court reported in AIR 1959 SC 443, it has been held in the said decision that where the propounder was unable to dispel the suspicious circumstances which surrounded the question of valid execution and attestation of the Will, no letters of administration in favour of the propounder could be granted.
11. However, in the instant case, registration has taken place after the death of the testator. In this context, the counsel for the petitioner had PC No. 43/11 Page 6 of 8 relied upon Section 40 of the Indian Registration Act and also placed reliance on the judgment in Vijay Kumar Mehra Vs. State & Others 2008 II AD (Delhi) 272 wherein it is observed in respect of the above stated circumstance in the following words :
"A Will is not a document which is compulsorily registrable Under Section 17 of the Registration Act, 1908. Registration of the Will has been made optional under Section 18 of the statute. So far as the registration of the Will is concerned, the same is covered by sections 27, 40 & 41 of the statute. A Will may be presented for registration to any registrar by the testator or after his death, by any person claiming as executor or otherwise under the Will. By virtue of Section 41 of the Statute, a Will shall be registered if the registering officer is satisfied that firstly, the Will was execute ? By the testator or donor, as the case may be; secondly, that the testator or donor is dead; and lastly, that the person presenting the Will or authority is, under Section 40 entitled to present the Will.
Thus, it can be treated to be a legal and valid registration of a document. Registered Will is more authentic and genuine. There appears no reason otherwise to doubt this document since none has come to oppose it and the only other legal heir Sh. Kasturi Lal has given his no objection for the grant of Letter of Administration in favour of the petitioner through his statement on oath. In these circumstances, when the attesting witness has appeared and testified that Will was executed by the deceased in sound disposing mind, without any influence from any quarter and the testimony goes unrebutted therefore this can be concluded that the execution of the Will was proper as two attesting witnesses are there to the execution of the Will, which is a requirement as per Section 63 of the Indian Succession Act.PC No. 43/11 Page 7 of 8
12. In view of these facts and circumstances, the petition filed on behalf of the Smt. Usha Rani for the grant of Letter of Administration/Probate satisfies the mandatory requirements and the genuineness of the document in question have been brought on record. Accordingly, the petitioner is entitled to the grant of relief sought for. Accordingly, the petition stands granted. The Letter of Administration of the Will dated 27.04.2005 of Smt. Motia Rani be issued in favour of the petitioner subject to the requisite formalities in this context. The petition stands disposed off accordingly. File be consigned to record room. Announced in the open court today i.e 12.12.2011 Vimal Kumar Yadav ADJ-02 (North) 12.12.2011 PC No. 43/11 Page 8 of 8 PC NO. 43/11 12.12.2011 Present : None Vide separate judgment dictated and announced, the petition stands granted. The Letter of Administration of the Will dated 27.04.2005 of Smt. Motia Rani be issued in favour of the petitioner subject to the requisite formalities in this context. The petition stands disposed off accordingly. File be consigned to record room.
Vimal Kumar Yadav ADJ-02 (North) 12.12.2011 PC No. 43/11 Page 9 of 8