Delhi District Court
Ms. Annu Arora vs State (Nct Of Delhi) on 19 December, 2013
IN THE COURT OF AJAY GOEL: ADDITIONAL DISTRICT
JUDGE-12(CENTRAL):DELHI.
PC-39/11/08
In the Matter of:
Ms. Annu Arora,
D/o Late Sh. Sumer Nath Arora
R/o XV/186, Ghee Mandi
Pahar Ganj, New Delhi. ......Petitioner.
VERSUS
1. State (NCT of Delhi)
2. Smt. Swarn Kanta Arora,
W/o Late Sh. Sumer Nath Arora
R/o XV/186, Ghee Mandi
Pahar Ganj, New Delhi
3. Ms. Neeru Grover,
W/o Sh. Sunil Grover,
R/o M-14, Laxmi Nagar Market,
Near Jagat Ram Park,
Laxmi Nagar, New Delhi.
4. Ms. Renu Thakur,
W/o Sh. Mohan Lal Thakur,
R/o Chander Vihar,
Village Mandawali,
Near Railway Crossing,
New Delhi.
PC-39/11/08 Page No. 1/23
5. Sh. Sanjay Arora
S/o Late Sh. Sumer Nath Arora
R/o C-26, Minto Road Complex,
New Delhi.
6. Ms. Dimple Arora,
D/o Late Sh. Sumer Nath Arora,
R/o XV/186, Ghee Mandi
Pahar Ganj, New Delhi. ......Respondents.
Date of Institution: 04.06.2008
Date of Assignment to this court: 04.10.2012
Date of Arguments: 11.12.2013
Date of Decision: 19.12.2013
JUDGMENT
1. This is a petition U/s 276 and 278 of the Indian Succession Act, 1925 for grant of probate of Will dated 05.4.2006 executed by deceased Sh. Sumer Nath Arora filed by petitioner against the respondents. The brief facts of the case are that deceased Sh. Sumer Nath Arora, the father of petitioner died on 19.02.2007 at Delhi leaving behind four daughters and one son being the legal heirs of deceased testator. It was further averred that Late Sh. Sumer Nath Arora was the exclusive owner and in possession of built up property bearing No. XV/186, Ghee Mandi, Pahar Ganj, New Delhi ad-measuring 200 sq. yards and said property was owned by the mother of Late Sh. Sumer Nath Arora namely Ms. Kaushalya Devi by virtue of registered Sale Deed dated 13.4.1970. It was pleaded that after the death of PC-39/11/08 Page No. 2/23 said Ms. Kaushalya Devi, the property was acquired by the father of petitioner through a registered Relinquishment Deed. It was also stated that Late Sh. Sumer Nath Arora during his life time had executed a Will dated 05.4.2006 whereby he bequeathed all his immovable and movable properties, cash and other house hold in favour of his two unmarried daughters i.e. the petitioner and respondent No. 6 and specifically debarred his other legal heirs. It was also pleaded that after the death of deceased testator, petitioner and respondent No. 6 became the absolute owner of all the movable and immovable properties and other assets of their father by virtue and accordance of Will dated 05.04.2006. It was also averred that the Will dated 05.4.2006 was the last and final will and testament and same was signed by the testator after being fully satisfied with the contents of said Will, in presence of two attesting witnesses who further attested the said Will in the presence of deceased testator and said Will was duly registered on 05.4.2006 with the Sub-Registrar, West-District, Delhi. Hence, it was prayed that probate in respect of registered Will dated 05.04.2006 be granted in favour of petitioner and respondent No. 6 in respect of their share in the property bearing No. XV/186, Ghee Mandi, Pahar Ganj, New Delhi.
2. On filing of petition, citation of the petition was issued to the general public by way of publication in the daily newspaper. Notice of the petition was also issued to the concerned Collector and respondents.
PC-39/11/08 Page No. 3/233. The valuation report was also received in the court as filed by concerned SDM/ Tehsildar on 07.11.2008.
4. Publication was also effected in newspaper "The Rashtriya Sahara"
on 06.08.2008.
5. In reply to petition, the respondents No. 3 Smt. Neeru Grover had filed written statement/objections raising objection that petition is not maintainable in the eyes of law as the same is false and frivolous and based on forged and manipulated Will dated 05.04.2006. It was also stated that petitioner has no cause of action in her favour. On merits, it was stated that Late Sumer Nath Arora died intestate and did not execute any will. It was also stated that alleged Will dated 05.4.2006 is prima facie a forged and fabricated documents and being a fraudulent document the petitioner has rendered herself liable for prosecution. It was also stated that no will was ever execute by late Sumer Nath Arora in favour of petitioner and respondent No. 6. It was further averred in objections that deceased had lost his memory from 2005 till his death and had developed fatal wounds in his feet and the pus had been oozing out of the wounds in the feet and testator was not even in a position to walk, talk or recognize anybody having remained confined to the bed after serious three heart strokes suffered by him. It was also averred that testator was not even able to recognize any person much less the attesting witnesses. The other contents were denied and it was prayed that petition be dismissed with heavy costs.
PC-39/11/08 Page No. 4/236. Respondent No. 4 Smt. Renu Thakur had also filed her written statement/objections wherein preliminary objections were raised stating that present probate petition being false and frivolous and is based upon forged and fabricated documents and therefore is liable to be dismissed with heavy costs. On merits, it was stated that testator died intestate and did not execute any Will. It was also stated that after death of father of answering respondent, the answering respondent became entitled to inherit the same in accordance with law. It was also pleaded in objections that deceased had lost his memory from 2005 till his death and had developed fatal wounds in his feet and the pus had been oozing out of the wounds in the feet and testator was not even in a position to walk, talk or recognize anybody having remained confined to the bed after serious three heart strokes suffered by him. It was also averred that testator was not even able to recognize any person much less the attesting witnesses. It was also stated that Will dated 05.04.2006 is a forged and fabricated document. The other contents of petition were denied and it was prayed that petition be dismissed with heavy costs.
7. Written statement was also filed by respondent No. 5 Sh. Sanjay Arora. In the written statement, preliminary objections were also raised stating that petitioner has not come to this court with clean hands and has suppressed the material facts from the court. It was also stated that petitioner has no cause of action in her favour PC-39/11/08 Page No. 5/23 therefore the petitioner is liable to be dismissed. On merits, it was stated that no will was ever executed by testator Sh. Sumer Nath Arora in favour of petitioner and respondent No. 6. It was also pleaded that petitioner and respondent No. 2 were allowed to reside over there by respondent No. 5 in the capacity of licencee the petitioner and respondent No. 6 have no right, title and interest in the said property. It was also stated that present petition is nothing but a counter blast of notice dated 13.05.2008 which was issued by the respondent No. 5 to the petitioner and respondent No. 6, whereby the petitioner and respondent No. 6 were asked to vacate the premises and to handover the peaceful and vacant possession to the respondent No. 5. It was also stated that petitioner sent a false and frivolous reply and same was replied by respondent No. 5 on 10.06.2008. It was also averred that late Sh. Sumer Nath Arora was not mentally sound as he was bed ridden and he had already suffered severe heart attacks three times and was also patient of diabetics. It was also stated that at the time of marriage of both the sisters i.e. respondent No. 3 and 4 and respondent No. 5, late Sh. Sumer Nath Arora was suspended from the service and therefore nothing sufficient was given in the marriage. It was also pleaded that Sh. Sumer Nath Arora being a sick person was not able to read properly and was not in a condition to walk even. The other contents of petition were denied and it was prayed that petition be dismissed with heavy costs.
PC-39/11/08 Page No. 6/238. Reply was also filed by respondent No. 6 to the petition of petitioner wherein it was stated that Late Sh. Sumer Nath Arora debarred his other legal heirs except the petitioner and respondent No. 6, however vide said Will, he bequeathed all his immovable and movable properties equally between his two unmarried daughters i.e. petitioner and answering respondent except his movable assets in the form of Bank Account with State Bank of India in respect of which answering respondent has been made exclusive owner and beneficiary. It was also averred that by virtue of said will, the petitioner and the answering respondent have become absolute owner of all the movable immovable properties and other assets of their deceased father namely Late Sh. Sumer Nath Arora except the movable asset in the form of Bank Account with State Bank of India in respect of which answering respondent has been made exclusive owner and beneficiary. It was also submitted that answering respondent has no objection if the prayer of the present petition of petitioner is allowed subject to the objection already taken.
9. Separate rejoinders were filed by petitioner to the written statements/replies of respective respondents wherein contents of petition were reiterated and those of written statements were denied.
10.During proceedings, none appeared on behalf of respondent No. 2 and 3 in the matter, hence they were proceeded ex-parte vide order dated 12.09.2008. However, later on application U/o 9 Rule 7 CPC PC-39/11/08 Page No. 7/23 was filed for setting aside the ex-parte order dated 12.09.08 and said application was allowed vide order dated 07.11.2008 and ex- parte order against respondent No. 3 was set aside.
11.On the pleadings of parties, the following issues were framed vide order dated 22.01.2009:-
1) Whether the Will dated 05.04.2006 propounded by the petitioner is the last Will and testament of deceased Sh. Sumer Nath Arora and was executed by him in sound disposing state of mind?OPP
2) Whether petitioner is entitled to the grant of probate/letters of administration to the Will dated 05.04.2006?OPP
3) Relief.
12.Thereafter, respondent No. 5 filed application U/o 14 Rule 5 CPC and Ld. Predecessor of this court vide its order dated 09.10.2009 dismissed the said application thereby holding that issues proposed by respondents in para 3 of application are covered in issue No. 1 which was framed on 22.1.2009.
13.Thereafter, respondent No. 6 filed application U/o 39 Rule 1 and 2 CPC to which petitioner made statement that she has no intention to sell or dispose off property No. 186, Ghee Mandi, Paharganj, New Delhi upon which counsel for respondent No. 6 submitted that he does not press the application and same be dismissed and withdrawn and accordingly, Ld. Predecessor of this court dismissed the said application as withdrawn vide its order dated 07.12.2009.
14.Thereafter, none appeared on behalf of respondent No. 5 despite PC-39/11/08 Page No. 8/23 repeated calls and respondent No. 5 was proceeded ex-parte vide order dated 07.12.2009. However, an application U/o 9 Rule 7 CPC was filed for setting aside ex-parte order and said application was allowed vide order 27.1.2010.
15.During proceedings of the case, the respondent No. 3 and 4 filed application U/s 151 CPC for withdrawal from case and their statement was also recorded in the court and in view of the statement, respondent No. 3 and 4 were discharged vide order dated 04.10.2012.
16.In evidence, petitioner had led her evidence and produced several witnesses including herself as PW-1 namely Ms. Anu Arora. Sh. Rajesh Anand was examined as PW-2, Sh. Kharag Singh was examined as PW-3, Sh. Vinod Kumar was examined as PW-4, Sh. J. C. Mahindro was examined as PW-5. Thereafter, evidence was closed by counsel for petitioner.
17.In defence, respondent had also produced witnesses in support of their case. Sh. Sanjay Arora was examined in chief only as RW-5, Smt. Dimple Arora was examined and cross-examined as RW-6. Thereafter, number of opportunities were granted to conclude R.E. but to no effect, hence R.E. was closed vide order dated 12.12.2012.
18.I have gone through the records and material and have heard the arguments. My issue-wise findings are as under:-
19.Issue No. 1. Whether the Will dated 05.04.2006 propounded by the petitioner is the last Will and testament of deceased PC-39/11/08 Page No. 9/23 Sh. Sumer Nath Arora and was executed by him in sound disposing state of mind?OPP and Issue No. 2. Whether petitioner is entitled to the grant of probate/letters of administration to the Will dated 05.04.2006?OPP:- Both these issues are taken up together as they are inter-connected. The onus to prove both these issues was on the petitioner. Under these issues, the petitioner is required to prove her entitlement for grant of probate/letters of administration and whether Will dated 05.4.2006 is the last Will and testament of deceased Sh. Sumer Nath Arora and was executed by him in sound disposing state of mind. Before proceeding to decide these issues, I would like to discuss the relevant law and judgments on this point. Section 278 of Indian Evidence Act deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
Section 2(h) of the Indian Succession Act describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes PC-39/11/08 Page No. 10/23 executable after the death of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.
2) The testator, while executing the will, was in a sound and disposing state of mind.
3) The testator has executed the Will of his own free;
meaning thereby that he was free from all sorts of influence coercion, fear or force when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vs. State. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Chandan Vs. Longa Bai."
In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
PC-39/11/08 Page No. 11/23Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act. Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign 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 signatures 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."
So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and PC-39/11/08 Page No. 12/23 Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Gullan Devi Vs. Mst. Punu @ Puran Devi AIR 1989 J&K 51. 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 PC-39/11/08 Page No. 13/23 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 two or more witnesses as prescribed. Thus, the question as to whether the will set up by PC-39/11/08 Page No. 14/23 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 also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR 578.
The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of late Mr. Chaman Lal Bajaj so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of-course the reasonable restrictions imposed by the civilized society in PC-39/11/08 Page No. 15/23 various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc. The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of PC-39/11/08 Page No. 16/23 the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in P. Manavala Chetty V. P. Ramanujan Chetty, it has been further held as under:
"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary PC-39/11/08 Page No. 17/23 to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications are there in the document itself and the PC-39/11/08 Page No. 18/23 attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively. Now I have to see whether in the present case the above principles have been duly made out or not.
20.The perusal of records reveals that the respondent No. 2 had not filed any written statement to the present petition nor led her evidence and rather was proceeded ex-parte. Thereafter no steps have been taken for setting aside ex-parte order and thus respondent No. 2 had failed to create any dent to the case of petitioner. The respondent No. 3 and 4 had filed their separate written statement/reply to the present petition, however both respondents No. 3 and 4 had not led their evidence in order to substantiate their claim. Rather, respondent No. 3 and 4 were discharged from case vide order dated 04.10.2012 on recording of statement in terms of application U/s 151 CPC for withdrawal from the case and closing their evidence. Furthermore, though respondent No. 6 had filed her reply yet respondent No. 6 is also beneficiary under Will dated 05.04.2006 and had not raised any question regarding veracity of Will in question and also to the case of petitioner and rather respondent No. 6 had admitted in her affidavit that she alongwith petitioner is the beneficiary of Will dated 05.04.2006. The whole case of respondent No. 5 is based on notice dated 13.05.2008 Ex. RW-5/1 which was issued by the respondent No. 5 to the petitioner and respondent No. 6, whereby the petitioner PC-39/11/08 Page No. 19/23 and respondent No. 6 were asked to vacate the premises and to handover the peaceful and vacant possession to the respondent No.
5. The petitioner had given reply to said notice and upon which the respondent No. 5 had given rejoinder dated 10.6.2008 Ex. PW-5/3 and same is duly available on record. The issuance of notice has no relevancy because for issuance of notice, the respondent No. 5 had to show that he was having any right, title and interest in the suit property and he had authority to cancel the licence and it was also to be proved that person in possession were licencee and that too under him. First of all it has to be kept in mind that will dated 05.4.2006 is a registered document with the Sub-Registrar, West- District, Delhi. The father of petitioner/testator expired on 19.02.2007 and Will was executed by testator on 05.4.2006, thus it is clear that there was sufficient time between death of testator and execution of Will. Though objections have been raised regarding ill- health of testator and it has been stated that Late Sh. Sumer Nath Arora was not mentally sound as he was bed ridden and suffered severe heart attacks three times and was also patient of diabetics. It has also been averred by respondent No. 5 that testator had lost sense of remembering and was unable to recognize any person and was not in sound state of mind. However, no medical document to substantiate these averments have been filed on record by respondents and in the absence of any evidence, it cannot be held that testator was not maintaining good health was not in a sound PC-39/11/08 Page No. 20/23 state of mind. On the other hand, respondent No. 6 in her cross- examination has admitted that her father executed will and at the time of execution of Will, her father was in sound deposing state of mind. She also state that her brother got married on 04.11.2000 and thereafter he left the house of her father and used to reside separately alongwith mother in law and neither her brother nor his wife and children used to visit her father;s house to look after him. She further admitted in cross-examination that her father gave sufficient gifts, jewellery and rupees including bearing other expenses in marriage of her brother and other two sisters namely Neeru Grover and Renu Thakur. PW-2 Sh. Rajesh Anand who is one of the attesting witnesses had appeared in witness box and had identified his signatures on the Will at point A and signatures of testator at point B. He further admitted that firstly Sh. Sumer Nath Arora filed the Will thereafter he signed the Will and after that the advocate signed the Will. Similarly, PW-5 another attesting witness namely Sh. J. C. Mahindro, Advocate had also supported the case of the petitioner. He had stated that he drafted the said Will under the instructions of Sh. Sumer Nath in his chamber. He also identified his signatures at point C. He further stated that testator was in sound disposing state of mind and had executed the Will in his own volition without any coercion, fraud, undue influence from any quarter. PW-3 Sh. Kharag Singh, Daftri from NDMC had also appeared as witness and brought the attendance register, however he stated PC-39/11/08 Page No. 21/23 that Sh. Sumer Nath Arora was leave on some occasions but he do now know whether it was earned leave or medical leave. PW-4 Sh. Vinod Kumar, Record Clerk from office of Sub-Registrar-III had also appeared and brought the record pertaining to registration of Will dated 05.4.2006. The counsel for petitioner has rightly relied upon AIR 2006 Supreme Court 786 titled Mathew Oommen Vs Suseela Mathew and same is fully applicable to the facts of present case. So, the arguments of respondent No. 5 that scribe cannot be attesting witness does not hold any water because intention is to gather by the court as to whether scribe has signed the Will and herein he has signed in dual capacity and signatures of Sh. J. C. Mahindro, Advocate is available at two places one as scribe and other as attesting witness and in these circumstances, if he has not signed as scribed, the Will would have been valid so mere appending signatures as scribe does not ipso facto make will illegal. Rather, it is case where respondent No. 5 has not led evidence even despite opportunity and even not examined himself, what to talk of the other witnesses. Thus, the veracity of Will dated 05.04.2006 executed by Late Sh. Sumer Nath Arora stands proved and it is held that Will dated 05.04.2006 of Late Sh. Sumer Nath Arora was executed by testator in sound disposing state of mind. Further it is held that Will dated 05.4.2006 was the last will and testament of deceased Sh. Sumer Nath Arora. Accordingly, both these issues are decided in favour of petitioners and against the respondents.
PC-39/11/08 Page No. 22/23However, during the course of arguments, the petitioner has requested that he is praying for grant of letter of administration and not for probate. Accordingly, letter of administration be granted in favour of petitioner.
21.Relief:- In view of the above finding, the petition is allowed with costs. Letter of administration be issued in favour of petitioner in respect of Will dated 05.04.2006 executed by late Sh. Sumer Nath Arora in respect of movable/immovable properties as per her share as mentioned in aforesaid Will to enable her to administer the aforesaid property of deceased. Since Will has been proved, thus respondent No. 6 is also entitled for grant of letter of administration as per her share in terms of Will dated 05.04.2006 being beneficiary under the said Will. It be accordingly granted after completion of required formalities in this context i.e. filing of requisite court fee, administration bond alongwith one surety bond of the amount of valuation in accordance with law. This file be consigned to record room.
Announced in the open court on (AJAY GOEL)
19.12.2013 ADJ-12(Central)Delhi.
PC-39/11/08 Page No. 23/23