Delhi District Court
Sh. Anil Kumar Seghal vs State on 24 April, 2014
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
CENTRAL DISTRICT:DELHI
PC-95/11/06
In the Matter of:
Sh. Anil Kumar Seghal,
s/o late Sh. Siri Ram Seghal,
r/o J-27, Ground Floor,
Rajouri Garden, New Delhi-110027.
.................. Petitioner
VERSUS
1. State
2. Municipal Corporation of Delhi,
Town Hall, Delhi-110006
................ Respondent
Near relatives/LRs of late Smt. Savitri Devi:-
1) Sh. Ashok Kumar Seghal,(Son)
s/o Sh. Siri Ram Seghal
r/o J-27, 1st floor,
Rajouri Garden, New Delhi-110027
2) Smt. Manorama Gulati, (Daughter)
w/o Sh. Ashok Gulati,
r/o A-5C/34A, Janak Puri,
New Delhi-110058.
......Respondents
Date of Institution: 5.7.06
Date of Assignment to this court: 8.10.12
Date of Arguments: 15.4.14
Date of Decision: 24.4.14
PC-95/11/06 Page:-1/26
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition u/s 276/277 of Indian Succession Act for grant of probate/letter of administration in respect of the estate of deceased Smt. Savitri Devi in view of Will dated 20.8.98. The brief facts of the case as narrated in the petition are that Smt. Savitri Devi widow of Shri Siri Ram Seghal died on 27.3.05 at Delhi and she was ordinary resident of J-27, Rajouri Garden, New Delhi and her assets and properties within the jurisdiction of this court. It was stated that the petitioner claims his rights to the assets and properties left by the deceased by virtue of being her son and being beneficiary of the Will dated 20.8.98 executed by her and duly registered in the office of the Sub Registrar. As stated the father of the petitioner Shri Siri Ram Seghal made an application to the Municipal Corporation fo Delhi sometime in 1984 for allotment of a plot in Sanjay Gandhi Transport Nagar at G.T. Karnal Road, Samaypur Badli, Delhi and he also deposited the initial amount of Rs.50,000/- with the corporation towards the same and thereafter further amount of Rs.9400/- on 4.3.1986 on being called upon to do so by the corporation vide its letter no. AC/RPC/86/218 dated 22.2.1986, however Sh. Siri Ram Seghal died at Delhi on 9.3.1986 intestate leaving PC-95/11/06 Page:-2/26 behind his widow Smt. Savitri Devi, two sons Sh. Ashok Kumar Seghal and Sh. Anil Kumar Seghal and a daughter Ms. Manorma as his legal heirs to inherit his estate in equal shares and each of them became entitled to 1/4th share in plot of land to be alloted by the Municipal Corporation of Delhi as applied for by the deceased. It was stated that accordingly widow of the deceased Smt. Savitri Devi acquired 1/4th share in the plot applied for by the deceased and proposed to be alloted by the MCD. It was further stated that Smt. Savitri Devi executed a registered Will dated 20.8.98 before her death on 27.3.05 and bequeathed her share in the aforesaid plot to be allotted by the Corporation to the petitioner by virtue of which the petitioner has become entitled to half share in the proposed allotment of the plot. It was stated that late Smt. Savitri Devi was owner in possession of built up property bearing no. J-27, Rajouri Garden, New Delhi vide registered sale deed dated 23.8.1958 and out of the said property she sold and transferred ground floor of the property to the petitioner vide sale deed dated 29.2.1996 and she continues to remain owner of the first floor and the second floor of the property, however the brother and sister of the petitioner namely Sh. Ashok Kumar Sehgal and Mrs. Manorma committed fraud and forgery with the deceased Smt. Savitri Devi and they both got executed PC-95/11/06 Page:-3/26 sale deeds dated 29.2.96 in their favour from her by practicing fraud and without consideration. As stated Sh. Ashok Kumar obtained sale deed of the first floor of the property in his favour obtained sale deed of the second floor of the property in her favour and thereafter they started litigating with the petitioner and filed a civil suit in December, 1997 which is pending disposal. It was stated that on having knowledge of the fraud and forgery committed by Sh. Ashok Kumar Seghal and Smt. Manorama Gulati the deceased Smt. Savitri Devi filed a suit for declaration and cancellation of the said sale deeds which suit was dismissed by the court against which appeal was filed by the deceased before Hon'ble High Court of Delhi which is pending. It was accordingly prayed that probate/letter of administration be granted to the petitioner in respect of last Will of the deceased dated 20.8.98.
2. After the petition was filed notice of the same was issued to the Collector of State to file valuation report. Valuation report dated 12.10.06 was filed on record. Notice was also issued to respondents/near relatives of the deceased and besides that citation to the general public was issued by way of publication in the daily newspaper " Hindustan(Hindi)" as well as by affixation in the court notice board.
PC-95/11/06 Page:-4/26
3. The publication of the citation was effected in the newspaper "
Hindustan(Hindi)" on 18.7.06.
4. Objections to the present petition were filed on behalf objectors Ashok Kumar and Smt. Manorma Gulati wherein it was stated that the present petition is not tenable or maintainable in law as there is mandatory requirement of a declaration/verification to be signed by atleast one of the witnesses to the alleged Will of the testator as per Section 281 of the Indian Succession Act and petition is liable to be dismissed on this ground. It was stated that admittedly the property bearing no. J-27, Rajouri Garden, New Delhi was already sold and transferred in the names of the petitioner who was given the ground floor. As stated Sh. Ashok Sehgal was given the first floor and Smt. Manorama Gulati was given the second floor by virtue of registered sale deeds executed by Smt. Savitri Devi on 29.2.96 in which the petitioner himself was a witness. It was stated that there was no question of any Will being executed by Smt. Savitri Devi in respect of the said property when she was no longer the owner of the said property after 29.2.96 and as such the alleged Will is of no consequence and needs no consideration. It was stated that petitioner had been playing fraud upon the objectors by getting filed false suits and proceedings against the objectors PC-95/11/06 Page:-5/26 in the name of Smt. Savitri Devi. It was stated that suit for recovery was got filed in Hon'ble Court of Sh. S.S. Rathi, the then Civil Judge which was dismissed on 16.2.00 and thereafter another suit challenging the sale deeds executed in favour of the objectors was got filed in the Hon'ble Court of Sh. D.K. Malhotra, the then Addl. District Judge which was also dismissed on 11.11.02 and the very fact that there was also a third sale deed executed by Smt. Savitri Devi on the same day in favour of the petitioner left no iota of dobt that the said proceedings were got initiated by him taking advantage of dominating her Will and by coercion, undue influence and pressure exerted by him on Smt. Savitri Devi who was living with him under captivity and as such the said attitude, conduct and behaviour of the petitioner debars him to file the present petition and same deserves rejection. It was stated that the suit aforesaid was filed by Smt. Savitri Devi at the behest of the petitioner and it is relevant to mention that neither in the said suit nor in the appeal from the judgment and decree thereof any disclosure of any such Will was ever made by Smt. Savitri Devi and as such this itself shows that the alleged Will propounded by the petitioner is forged, fabricated and manipulated Will. It was stated that had Smt. Savitri Devi executed a Will dated 27.6.1991 whereby she PC-95/11/06 Page:-6/26 bequeathed the ground floor of the property in question in favour of Anil Sehgal while the first and second floor was bequeathed by her in favour of Sh. Ashok Sehgal, then the said Will is of no consequence since thereafter Smt. Savitri Devi had executed the relevant sale deed of the ground floor, first floor and second floor in favour of Sh. Anil Sehgal, Ashok Sehgal and Smt. Manorama Gulati. It was further stated that Will is no witnessed by any near relative of Smt. Savitri Devi when she had number of near relatives who were on visiting terms with her and Sh. Madan Lal, the alleged witness was not even known to her and is believed to be a close friend and associate of the petitioner whereas admittedly Sh. J.B. Malik, advocate was never known to Smt. Savitri Devi who had during her life time got all her litigations done through Sh. B.L. Chawla, Advocate and such the alleged Will is not genuine and appears to have been got fabricated and manipulated by the petitioner. It was sated that the alleged plot at Sanjay Gandhi Transport Nagar has never been alloted either to the deceased Smt. Savitri Devi and in fact father of the petitioner and objectors had deposited the amount of Rs.50,000/- and Rs.9400/- as detailed by the petitioner and to the best of the information of the objectors no allotment of any plot has been made so far and if there would be any allotment it has to PC-95/11/06 Page:-7/26 be in the names of all the legal heirs of late Sh. Siri Ram Sehgal who admittedly died intestate and as such there was no occasion for Smt. Savitri Devi to make any request in respect of the said plot and the plea as such is misconceived and malafide on the face of it. It was further stated that Smt. Savitri Devi was not literate in English whereas the Will in question is scribed in English, hence the same could not have been got executed by her. Even there is no averment made in the Will by any scribed or by any person that the said Will has been explained to her or thatshe has understood the same and as such the said Will is not valid or binding on the objectors or could have ever been executed by Smt. Savitri Devi. It was stated admittedly Smt. Savitri Devi was possessed of various fixed deposit receipts, kisan vikas patra and bank accounts of which there is no reference even made in the Will and when admittedly she continued to receive pension, so the alleged Will is manipulated. It was also stated that there was no circumstances existing as to disinherit either Sh. Ashok Sehgal or Smt. Manorma Gulati when they had all been looking after her and it is relevant to mention that prior to her fall, she was residing with Sh. Ashok Sehgal and had to shift to ground floor as she was not able to climb the stairs thereafter. Accordingly it was prayed that the probate petition PC-95/11/06 Page:-8/26 filed by the petitioner by dismissed.
5. Reply to objection of objectors were filed on behalf of the petitioner in which contents of the petition were reiterated and those of the objections were denied.
6. Rejoinder to the reply of petitioner was filed by the objectors wherein contents of the reply were denied and those of the objections were reiterated.
7. Vide order dated 8.12.06 from the pleadings of parties, the following issues were framed:-
1) Whether the Will dated 20.8.1988, propounded by the petitioner is the duly executed last and final Will of late Smt. Savitri Devi in sound disposing state of mind?OPP
2) What is the effect of non compliance of provisions of Section 281 of the Indian Succession Act? Onus placed upon objectors?
3) Whether the petitioner is entitled to grant of probate/letter of administration?OPP
4) Relief.
8. In evidence, petitioner produced himself as PW-1, Sh. Madan Lal as PW-2. PW-1 reiterated his case as set out in the petition and relied upon death certificate of his mother Smt. Savitri Devi as Ex. PW-1/1, copy of death certificate of Sh. Siri Ram Seghal Ex. PW-1/2 and the Will dated PC-95/11/06 Page:-9/26 20.8.98 Ex. PW-1/3. PW-2 Sh. Madan Lal stated himself to the attesting witness to the Will dated 20.8.98 and stated that he accompanied Smt. Savitri Devi and her son Anil Kumar Seghal to the office of the Sub Registrar, Janak Puri on 20.8.1998 where Smt. Savitri Devi instructed an advocate to prepare a Will for her and after receiving instructions from Smt. Savitri Devi an Advocate got a Will prepared and typed and thereafter he explained the same to Smt. Savitri Devi in vernacular and she after understanding the same signed it in Hindi and put her thumb impression on each page of the Will in his presence and after that he signed the Will as an attesting witness and then an Advocate Sh. J.B. Malik had signed the same in his presence.
9. In defence, objectors examined objector no. 1 Sh. Ashok Kumar Sehgal as RW-1, Sh. Harish Talwar as RW-2. RW-1 reiterated his case as is set out in the objections. RW-2 also supported the case of the objectors and denied the execution of the Will dated 20.8.98.
10.I have gone through the entire records including the pleadings, documents and the testimony of witnesses examined on record and have heard the arguments addressed by counsel.
11. Issue no. 1 and 3 :- Before proceeding to decide these issue, I would PC-95/11/06 Page:-10/26 like to discuss the relevant law and judgments on this point. Section 278 of Succession 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.
12.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 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 PC-95/11/06 Page:-11/26 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 Vashram Vs. State of Gujrat. 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 Ku. Chandan & Anr. Vs. Longa Bai& Anr."
13.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 PC-95/11/06 Page:-12/26 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."
14.Section 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.
15. So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and 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 PC-95/11/06 Page:-13/26 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 Mst. Gullan Devi Vs. Mst. Punu @ Puran Devi & Ors. AIR 1989 J&K 51.
16. 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.
17. The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of testator 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.
PC-95/11/06 Page:-14/26
18.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 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."
PC-95/11/06 Page:-15/26 Similarly, in (1971) 1 MLJ 127 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 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 PC-95/11/06 Page:-16/26 declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
19.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 PC-95/11/06 Page:-17/26 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 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 PC-95/11/06 Page:-18/26 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.
20.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 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 PC-95/11/06 Page:-19/26 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.
21. 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 attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
22. Now I have to see whether in the present case the above principles have been duly made out or not. As far as the ingredient whether the testator was in sound disposing mind at the relevant time of execution of the Will is concerned no objection in that respect was taken by the objectors and there is nothing on record to show that testator was not in good mental PC-95/11/06 Page:-20/26 state at the relevant time. Hence it is held that testator was not suffering from any disease at the relevant time of execution of the Will which would have effected her cognitive faculties.
23. Now I will deal with the question of valid execution of the Will. Perusal of the alleged Will dated 20.8.98 Ex. PW-1/3 shows that deceased had bequeathed all her immovable properties in favour of the petitioner. It is admitted case that objectors are the real son and daughter of the deceased and no reason had been mentioned in the Will in question for their debarment. There is nothing on record to show that deceased had any strained relationship with the objectors. Though it is contended by the petitioner that deceased Smt. Savitri Devi herself filed suit for cancellation of sale deeds in favour of objectors dated 29.2.1996 wherein Smt. Savitri Devi had pleaded that fraud was played upon her by the objectors, however copies of judgment dated 11.11.02 of Sh. D.K. Malhotra the then Ld. ADJ and order of Hon'ble High Court dated 30.11.11 are on record whereby the suit filed by Smt. Savitri Devi was dismissed and perusal of the facts of the case mentioned therein clearly shows no where in the said suit also strained relationship between Smt. Savitri Devi and the objectors herein was pleaded and rather Smt. Savitri Devi in the said suit only PC-95/11/06 Page:-21/26 pleaded that she wished to make a Will in favour of objectors in respect of first and second floor of the property J-27, Rajouri Garden, New Delhi whereas they got sale deeds registered in their favour by playing fraud. The said suit was dismissed as well as the appeal against the said judgment meaning thereby that the contention of playing fraud by the objectors remained unfounded and rather it has come on record that late Smt. Savitri Devi had a wish to bequeath first and second floor of property J-27, Rajouri Garden, New Delhi to the objectors. Further it is pertinent to mention here that when admittedly sale deeds dated 29.2.96 were in existence and Smt. Savitri Devi was contesting the case for cancellation of the same then why the Will dated 20.8.98 is silent in that respect and why there is no specific mention of the said sale deeds. Even in the said suit which was decided on 11.11.02 Smt. Savitri Devi never pleaded about the existence of the Will in question which was dated 20.8.98. It is also interesting to note that even in sale deeds dated 29.2.96 admittedly petitioner himself was a witness which fact also find mention in the judgments of Ld. ADJ dated 11.11.02 and order of Hon'ble High Court dated 30.11.11 which goes to show that there were no strained relations between the parties at that time as Hon'ble High Court has already rejected the plea of PC-95/11/06 Page:-22/26 misrepresentation/fraud upon Smt. Savitri Devi by the objectors. Hence, in view of the above the plea of strained relations between the deceased and the objectors stands not proved and when the deceased had no strained relations with objectors who are her son and daughter then their debarment in the Will in question by the deceased certainly raised doubt upon the alleged Will.
24. Further the Will in question had been signed by two attesting witnesses namely Madan Lal and Sh. J.B. Malik. It is also the case of petitioner that he was also present at the time of execution of the Will in question and testator and the witnesses had signed in his presence also identified their signatures. The Will in question is typed in English language. PW-1 Anil Kumar Seghal during cross examination stated that his mother did not know English, however the attesting witness to the Will PW-2 Sh. Madan Lal stated that the Will was got typed by an advocate in the office of Sub Registrar and Smt. Savitri Devi read the said Will. When as per the petitioner Smt. Savitri Devi did not know English then how come she read the said Will. The above gave contradiction in the statements of PWs. Further it is admitted by the attesting witness Sh. Madan Lal that wife of petitioner is his niece and it is also admitted by PW-1 petitioner that Smt. PC-95/11/06 Page:-23/26 Savitri Devi was not having any direct relations with Madan Lal except that the niece of Madan Lal was married to Anil Seghal. It is clear that the said witness Sh. Madan Lal is relative of wife of petitioner and is indirectly related to the beneficiary of the Will which definitely give rise to suspicion. It is also admitted by the PW-1 during cross examination that Smt. Savitri Devi was having cordial relations with her relatives. When Smt. Savitri Devi had cordial relations with her relative then it is unexplained as to why she choose a relative of her daughter in law to be a witness to the Will in question rather than her own relatives. Nothing has been uttered about the other attesting witness as to why he has not been produced before the court who otherwise was independent witness. Further, PW-2 stated that the Will was got typed by an advocate in the office of Sub Registrar and when Smt. Savitri Devi had given instructions the lawyer wrote the same on a piece of paper and the same typed by a typist, however PW-1 during cross examination stated that the advocate drafted the Will straightaway after receiving the instructions from his mother and no written notes were prepared by the advocate. Statements of both the witnesses remained contradictory as to whether the Will was prepared straightaway or any notes were prepared before drafting the Will in question. Even PW-2 PC-95/11/06 Page:-24/26 Madan Lal stated that the Will was signed by the testator first thereafter he signed the same and thereafter the scribe put his signatures. He stated that the name of the said lawyer was Mr. Malik. As per PW-2 Mr. Malik signed the Will in capacity of scribe whereas PW-1 stated Mr. J.B. Malik to be the attesting witness. It is also worth mentioning that petitioner who is the sole beneficiary in the Will in question was present throughout the execution of the Will and his influence on the testator cannot be ruled out. Moreover, when the sale deeds executed by the deceased have been upheld by Hon'ble High Court as mentioned above so in these circumstances the testator was left with no right, title or interest regarding the lis and Will could not have been executed. The petitioner himself is signatory to sale deeds and was also beneficiary which fact was admitted by the petitioner. Hence, the execution of the Will in question is surrounded with heavy suspicion and the Will in question cannot be given a clean chit. Accordingly in view of the above said Will dated 20.8.98 Ex. PW-1/3 cannot be stated to be the last testamentary disposition of the testator out of free will and without coercion and is accordingly rejected. Issue no. 1 and 3 are decided in favour of the objectors and against the petitioner.
25. Issue no. 2:- As far as this issue is concerned it is correct that the petition PC-95/11/06 Page:-25/26 has not been verified by one of the attesting witnessses of the Will. Petitioner has argued that if one the attesting witness comes and depose before the court that he has seen testator executing the Will in question then reqrement of Section 281 stands satisfied. Though the Will in question has already been rejected but even otherwise in a case where executor is appointed by the testator in the Will then Section 281 of Indian Succession Act applies and if no executor is appointed then Section 278 applies for grant of letter of administration wherein there is no mandatory requirement of one attesting witness to sign the petition. In the present case no executor has been appointed in the Will in question, so there is no requirement of attestation of petition by one of the witness, however during the course of the arguments Cl. for petitioner has submitted that he does not press for this issue and same be dropped. This issue stand dropped and disposed off accordingly.
26. Relief:- In view of the above findings , instant petition is hereby dismissed with costs. File be consigned to record room.
Announced in open court (Ajay Goel) on 24.4.14 ADJ-12(Central)/Delhi PC-95/11/06 Page:-26/26