Delhi District Court
Smt. Prem Devi vs . State & Ors. on 10 August, 2023
Smt. Prem Devi Vs. State & Ors.
IN THE COURT OF ADDITIONAL DISTRICT JUDGE
02, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Presiding Judge: Sh. Dinesh Kumar
PC No. 3/2022
Filing No. 300/2022
CNR No. DLST010004712022
In the matter of
Smt. Prem Devi
W/o Late Sh. Heera Lal
R/o B7, BlockB, Sanwal Nagar
Andrewsganj, Defense Colony,
South Delhi,
Delhi110049
Mob. No. 9599408073
................Petitioner
Versus
1. State (Govt of NCT of Delhi)
Through Secretary
Add: Revenue Secretariat, I.P. Estate,
New Delhi110002
2. State (Govt. of NCT of Delhi)
Through District Magistrate
Add: M.B. Road, Saket,
PC No. 3/2022
CNR No. DLST010004712022
Page 1 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023
Smt. Prem Devi Vs. State & Ors.
New Delhi110068
3. Smt. Narbada
W/o Sh. Gauri Shankar
R/o B3/508, Baba Colony,
Burari, North Delhi,
Delhi110084
Mob: 8130209524
4. Sh. Hemraj
S/o Late Sh. Heera Lal
R/o B7, BlockB, Sanwal Nagar
Andrewsganj, Defense Colony
South Delhi
Delhi110049
Mob. No. 9312395272
5. Smt. Krishna
W/o Sh. Khem Chand
R/o 9587/3, Gaushala,
Bara Dari, Krishan Ganj
Delhi G.P.O., North Delhi,
Delhi110006
Mob.No.:8860013105
6. Sh. Rohit
S/o Late Sh. Heera Lal
R/o B7, BlockB, Sanwal Nagar,
Andrewsganj, Defense Colony,
South Delhi,
PC No. 3/2022
CNR No. DLST010004712022
Page 2 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023
Smt. Prem Devi Vs. State & Ors.
Delhi110049
Mob. No.9015583463
.............Respondent
Date of Institution : 18.01.2022
Date of reserving the judgment : 21.07.2023
Date of pronouncement : 10.08.2023
Decision : Petition Allowed.
PETITION UNDER SECTION 217, 276, 283, 289 and 290
OF THE INDIAN SUCCESSION ACT 1925 FOR GRANT
OF PROBATE/LETTER OF
ADMINISTRATION/PROBATE OF THE LAST
UNREGISTERED WILL DATED 15.06.2015 EXECUTED
BY DECEASED NAMELY Heera LAL
JUDGMENT
1. The present petition has been filed by the petitioner under Section 217, 276, 283, 289 and 290 of the Indian Succession Act 1925 for grant of letters of administration of the unregistered Will dated 15.06.2015 of Sh. Heera Lal (since deceased)(hereinafter referred to as 'the testator'). The case of the petitioner, as per the petition, is as under: 1.1. The testator was a Hindu governed by Hindu Succession Act, 2005. He had died on 16.06.2020. He had executed an unregistered Will dated 15.06.2015 in the PC No. 3/2022 CNR No. DLST010004712022 Page 3 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
presence of two witnesses.
1.2. The testator had purchased the property situated at B7, Block B, Sanwal Nagar, Andrewz Ganj, Defence Colony, South Delhi, Delhi - 110049 from one Sh. Tara Chand through General Power of Attorney, Agreement to Sell, Affidavit, Payment receipt and Will all dated 06.06.1984 against the consideration amount of Rs.12,000/. Sh. Tara Chand had purchased the property from Pandit Mela Ram S/o Pandit Gumani Ram, Pandit Kanhaiya Lal S/o Pandit Ram Sahai and Pandit Rati Ram S/o Pandit Kallu Mal through registered Sale Deed which is duly registered as document No. 0269, Book No.01, Vol. No. 207, Page No. 293298 dated 05.02.1953.
1.3. The petitioner is the wife of the testator and sole beneficiary. The testator had passed away naturally at the age of 78 years on 16.06.2020 at his residence in New Delhi. The testator was survived by following legal heirs:
S.No. Name of the Legal Heir Relationship
1. Prem Devi Wife
2. Narbada Daughter
3. Hemraj Son
4. Krishna Daughter
5. Rohit Son
PC No. 3/2022
CNR No. DLST010004712022
Page 4 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023
Smt. Prem Devi Vs. State & Ors.
1.4. The petitioner is the legally wedded wife of testator and the only beneficiary of the unregistered Will qua the property No. B7, BlockB, Sanwal Nagar, Andrewsganj, Defence Colony, South Delhi, Delhi110049. The property is situated within the jurisdiction of respondents No.1 & 2.
1.5. The testator had executed the unregistered Will out of his own free Will, without any coercion, undue influence, misrepresentation and fraud from any person. During his lifetime, the testator informed his family members number of times that he would bequeath the said property in the manner as mentioned in the unregistered Will dated 15.06.2015.
1.6. Some dispute arose amongst the petitioner and her sons regarding the distribution of the property mentioned in the Will and the same is still subsisting. Therefore cause of action to file the present petition is subsisting and continuous.
1.7. The property mentioned in the Will is situated within the territorial jurisdiction of this Court. Therefore, this Court has territorial jurisdiction to try and entertain PC No. 3/2022 CNR No. DLST010004712022 Page 5 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
the present petition. The petitioner has not filed any other or similar petition before any Court of law. There is no legal impediment in granting of Letter of Administration/Probate to the petitioner. Hence, the present petition was filed with the following prayer: "(a) Grant of probate/letter of Administration in respect of last unregistered Will dated 15.06.2015 qua the estate of the deceased Sh. Heera Lal S/o Late Sh. Babu Lal with respect to the property No. B7, Block B, Sanwal Nagar, Andrewsganj, Defence Colony, South Delhi, Delhi110049 in favour of the petitioner.
b) Pass any other or further order/s deems fit by this Hon'ble Court in favour of the petitioner."
2. Vide order dated 05.02.2022, the citation was directed to be published in the newspaper for general public. Citation was also directed to be issued to the private respondents. The citation was published in the newspaper "The Statesman" dated 27.06.2022. The citation was also published by way of affixation at the Notice Board of the Court and at the Notice Board of the DM concerned. Citation was also served upon the private respondents. Valuation report was also received from the SDM concerned.
PC No. 3/2022CNR No. DLST010004712022 Page 6 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
3. Respondent No. 3 to 6 appeared and filed their no objections on 01.12.2022. Respondent No. 1 and 2 are State i.e. one respondent.
4. On the basis of record, issues were framed vide order dated 01.12.2022. Vide order dated 10.08.2023, there was a correction in the name of the testator in the issues. The issues after correction read as under :
1.Whether the Will dated 15.06.2015 is the last and final Will of Sh. Heera Lal (since deceased) S/o Late Sh. Babu Lal?OPP
2. Whether the Will dated 15.06.2015 has been duly executed as per law by Sh. Heera Lal (since deceased) during his lifetime?OPP
3. Whether the petitioner is entitled to letters of administration in respect of the estate of Late Heera Lal?OPP
4. Relief.
5. 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 the PC No. 3/2022 CNR No. DLST010004712022 Page 7 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
petition and relied upon the following documents:
a) Photocopy of Aadhaar Card of the petitioner is Ex.PW1/1.
b) Original Will dated 15.06.2015 of Testator Sh.
Heera Lal (since deceased) is Ex.PW1/2.
c) Photocopy of General Power of Attorney executed by Sh. Tara Chand S/o Bhoray Lal in favour of Testator Sh. Heera Lal (since deceased), photocopy of agreement to sell executed by Sh. Tara Chand S/o Sh. Bhoray Lal in favour of Testator Sh. Heera Lal (since deceased), photocopy of affidavit executed by Tara Chand, photocopy of receipt, photocopy of Will executed by Sh. Bhoray Lal in favour of testator Heera Lal all dated 06.06.1984 and photocopy of registered sale deed in Urdu language alongwith its English translation registered at the office of SubRegistrar, Delhi vide registration No. 269 at Book No.1, Volume No. 207 on pages 293 to 298 dated 21.02.1953 are Ex.PW1/3 (colly).
d) Computer generated copy of death certificate of PC No. 3/2022 CNR No. DLST010004712022 Page 8 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
Testator Sh. Heera Lal (since deceased) is Ex.PW1/4.
6. The petitioner also examined attesting witness PW2 Ms. Jyoti Gothwal. She tendered her affidavit in evidence as PW2/A and relied upon the copy of her Aadhaar Card as Ex.PW2/1. She would stated that the Will Ex. PW1/2 dated 15.06.2015 was signed by Sh. Heera Lal (since deceased) in her presence at his home. Thereafter, she had signed on the Will. Second witness Sh. Mahavir Aggarwal was also present who had signed the Will in her presence. She has identified her signatures, the signatures of the testator and of the second witness on the Will Ex. PW1/2. She would also state that at the time of signing of the Will, the testator was in sound disposing mind and good health.
7. The petitioner also examined attesting witness PW3 Sh. Mahavir Aggarwal. He tendered his affidavit in evidence as PW3/A and relied upon copy of his Aadhaar Card as Ex.PW3/1. He would depose similar to PW2.
8. The petitioner did not examine any other witness. Vide order dated 19.04.2023, PE was closed. The matter was adjourned for final arguments.
PC No. 3/2022CNR No. DLST010004712022 Page 9 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
9. Ld. Counsel for the petitioner would argue that the petitioner has proved the Will of her husband. The attesting witnesses i.e. PW2 and PW3 in their statements recorded before the Court have also proved the signatures of the testator on the Will and deposed that the testator had signed the Will in their presence. The petitioner has proved the Will as per law. Hence, it is prayed that the letters of administration with Will annexed may be issued in favour of the petitioner.
10. I have heard the submissions of the Ld. Counsel for the petitioners and perused the record. My issue wise findings are as follow :
11. Issue No. 1 and 2: This issue reads as under :
"1.Whether the Will dated 15.06.2015 is the last and final Will of Sh. Heera Lal (since deceased) S/o Late Sh. Babu Lal?OPP "2. Whether the Will dated 15.06.2015 has been duly executed as per law by Sh. Heera Lal (since deceased) during his lifetime?OPP"
12. 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 PC No. 3/2022 CNR No. DLST010004712022 Page 10 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
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 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."
13. 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 PC No. 3/2022 CNR No. DLST010004712022 Page 11 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
that it the person "does not know what he is doing" for any reason (such as intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal prerequisite, thus, is that at the time of expressing his desire visavis the disposition of the estate after his demise he must know and understand its purport or import.
14. 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 the same time, and no particular form of attestation shall be necessary."
15. As per the mandate of clause (c), a Will is required to be PC No. 3/2022 CNR No. DLST010004712022 Page 12 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
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 propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and PC No. 3/2022 CNR No. DLST010004712022 Page 13 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
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.
16. 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 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 PC No. 3/2022 CNR No. DLST010004712022 Page 14 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
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 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 PC No. 3/2022 CNR No. DLST010004712022 Page 15 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
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 of the propounder to remove all reasonable doubts in the matter."
17. 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 PC No. 3/2022 CNR No. DLST010004712022 Page 16 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
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, 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."
18. 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; 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 PC No. 3/2022 CNR No. DLST010004712022 Page 17 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
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 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)]..."
19. Sections 68 of the Evidence Act, which relates to proof of documents required by law to be attested, reads as under:
PC No. 3/2022CNR No. DLST010004712022 Page 18 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
"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 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.
20. 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 PC No. 3/2022 CNR No. DLST010004712022 Page 19 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
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.
21. It is the duty of the propounder of the Will to prove the Will in question in accordance with law. In the present case, the petitioner has examined herself as PW1. She has also examined PW2 and PW3 as attesting witnesses of the Will. PW2 and PW3 have proved their signatures and the signatures of the testator on the Will Ex. PW1/2. Their testimonies also show that the testator was in good physical health and sound disposing state of mind at the time of execution of the Will in question Ex. PW1/2. As held by 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 proving a Will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in a case of a Will under Section 63 of the Indian Succession Act. The role of the Court in the present petition is to examine whether the instrument propounded as Will as the last Will of the testatrix is the last Will or not of the testator and whether the same has been executed with free sound disposing PC No. 3/2022 CNR No. DLST010004712022 Page 20 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
mind. The petitioner is the wife of the testator. The respondents no. 3 to 6 are children of the testator and of the petitioner. They have already given their no objection to the present petition. The Court has not received any objections from any person despite publication of the citation as per law. The testimonies of the witnesses examined by the petitioner have remained unrebutted. There is no reason to doubt the testimonies of PW1 PW2 and PW3. Nothing has come on record which can show that the Will was executed under suspicious circumstances or that the Will was not signed in the presence of the attesting witnesses. Further, there is nothing on record to show that the testator was not having free sound disposing mind at the time of execution of the Will. There is no contention to the present petition as per Section 286 of the Indian Succession Act. The petitioner has also proved the death certificate of the testator on record which is Ex. PW1/4. The Will Ex. PW1/2 thus stands proved in accordance with law. In view of the same, I hold that the petitioner has proved to the satisfaction of the Court that the Will Ex. PW1/2 dated 15.06.2015 is the last and final Will of testator Sh. Heera Lal (since deceased). It also stands proved that the Will Ex. PW1/2 has been duly executed as per law by the testator voluntarily and in sound mind. The Court's PC No. 3/2022 CNR No. DLST010004712022 Page 21 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
conscience is also satisfied with testimonies of PW1, PW2 and PW3. There are no suspicious circumstances surrounding the execution of the Will Ex.PW1/2 which may lead to any contrary inference. The issue no. 1 and 2 are accordingly decided in favour of the petitioner.
22. Issue No.3 : This issue reads as under :
"3. Whether the petitioner is entitled to letters of administration in respect of the estate of Late Heera Lal?OPP"
23. Having regard to the testimonies of PW1, PW2 and PW3 and the fact that the petitioner has been able to prove the signatures, there appears to be no impediment in grant of letters of administration in respect of the Will Ex. PW1/2. The Court's conscience is also satisfied with testimonies of PW1, PW2 and PW3. There are no suspicious circumstances surrounding the execution of the Will Ex.PW1/2, which may lead to any contrary inference. Hence, the issue No.3 is decided in favour of the petitioner.
24. Issue No. 4 Relief: In view of the discussion hereinabove, the petition is allowed. The letters of administration with Will annexed be issued to the petitioner as per the prayer in the petition. The letters of administration be PC No. 3/2022 CNR No. DLST010004712022 Page 22 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
issued in the prescribed form VII along with authenticated copy of the Will Ex.PW1/2 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.
25. 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.
26. 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 does 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 PC No. 3/2022 CNR No. DLST010004712022 Page 23 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023 Smt. Prem Devi Vs. State & Ors.
same.
27. 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 10th day of August 2023.
(DINESH KUMAR) ADDL. DISTRICT JUDGE02 SOUTH, SAKET COURTS, NEW DELHI.
Digitally signed by DINESHDINESH KUMAR Date: KUMAR 2023.08.10 15:19:13 +0530 PC No. 3/2022 CNR No. DLST010004712022 Page 24 of 24 Dinesh Kumar/ADJ02/South/Saket/10.08.2023