Delhi District Court
Smt. Kailash Sehgal vs The State on 2 January, 2013
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IN THE COURT OF SHRI MUKESH KUMAR GUPTA:
ADDITIONAL DISTRICT JUDGE06: CENTRAL: DELHI
PC No. 07/11
U.I.D No. 02401C0138302011
Smt. Kailash Sehgal
W/o Late Sh. Sudershan Pal Sehgal
R/o 12/22, Ground Floor
70 Years West Patel Nagar
New Delhi. .......Petitioner
Vs.
1. The State
Through The Lieutenant Governor
Raj Niwas, Delhi.
2. Smt. Lavina Narang
Aged about 45 Yrs.
W/o Sh. Sunil Narang
R/o House No. 24, Sector15
Sonepat, Haryna.
3. Smt. Ashu Bhasin @ Ashima Bhasin @ Ashu
Aged about 43 Years
W/o Sh. Puneet Bhasin
R/o 26/29, Ist Floor, West Patel Nagar
New Delhi 110008.
4. Mrs. Anjali Sehgal
Aged about 35 Years
W/o Sh. Nakul Kumar
R/o Upper Ground Floor
12/22, West Patel Nagar
New Delhi 110008. .....Respondents
Date of institution of suit : 09.03.2011
Date of assignment : 12.01.2012
Date of hearing final argument : 07.12.2012
Date of Judgment : 02.01.2013
PC 07/11 Kailash Sehgal Vs. State & Ors. 1/9
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Appearance : Sh. Yatinder Sharma, Advocate, Ld. Counsel for the petitioner.
JUDGMENT :
1. By way of present judgment, I shall conscientiously decide the present petition under section 276 of the Indian Succession Act, 1925 (hereinafter called the 'Act'), whereby which a probate of the Will dated 16.07.2007 allegedly executed by the testator Sh. Sudarshan Pal Sehgal, has been sought by the petitioner.
2. Eschewing prolix reference to the pleadings of the parties crystallizing the same, the petitioner is stated to be the widow of testator Sudarshan Pal Sehgal who is stated to have died on 19.11.2010 at his residence at 12/22, Ground Floor, West Patel Nagar, New Delhi. The deceased Sudarshan Pal Sehgal is stated to be the absolute owner of the build up immovable property bearing no. 12/22, Ground Floor, West Patel Nagar, New Delhi, having the terrace rights above the second floor of the said property. The testator Sudarshan Pal Sehgal, the owner of the subject Will is stated to have bequeathed his above mentioned property in favour of the petitioner as one of its beneficiary. The petitioner has thus claimed the grant of probate on the basis of the last Will testament dated 16.07.2007 of testator Sudarshan Pal Sehgal made in her favour.
3. After the petition was filed, notice of the same was issued to the Collector of the State and near relations of the deceased besides citation to the general public was directed to be PC 07/11 Kailash Sehgal Vs. State & Ors. 2/9 3 published in the newspaper "Veer Arjun" and also displayed on court notice board.
4. The publication of the citation was effected in the newspaper "Veer Arjun" dated 01.04.2011. While the respondents namely Smt. Lavina Narang, W/o Sh. Sunil Narang, Smt. Ashima Bhasin, W/o Sh. Puneet Bhasin and Smt. Anjali Sehgal, W/o Sh. Nakul Kumar, have filed their respective no objections on record on affidavit. None from the general public or anybody interested in the estate of deceased Sudarshan Pal Sehgal has preferred any objections.
5. In order to prove its case, the petitioner got examined herself before the court as PW1 and filed her affidavit by way of evidence on record as Ex. PW1/E. The witness reiterated the contents of the petition on oath and has stated that her deceased husband Sudarshan Pal Sehgal has expired on 19.11.2010, leaving behind the immoveable property bearing no. 12/22, Ground Floor, West Patel Nagar, New Delhi alongwith its terrace right above the second floor. The witness has further deposed that the testator Sudarshan Pal Sehgal during his life time executed his last Will and testament in presence of witness. The witness got exhibited the death certificate in respect of the testator as Ex. PW1/A. The Will dated 16.07.2007 got exhibited on record as Ex.PW1/B and the identity proof of the petitioner got exhibited on record as Ex. PW1/C. In addition her own examination, the petitioner got examined the attesting witness to the Will namely Sh. Amresh PC 07/11 Kailash Sehgal Vs. State & Ors. 3/9 4 Kumar, Advocate, as PW2 who filed his affidavit by way of evidence on record as Ex.PW2/A. The witness has stated that Will was executed by Sh. Surender Pal Sehgal in a sound health and in a disposing mind out of his free will and that the testator has signed the Will after understanding the contents thereof in his presence. The witness got exhibited his signatures on the Will Ex. PW1/B at point X and that of the testator at point A & B. No other witnesses were examined by the petitioner and vide statement dated 08.05.2012, the evidence of the petitioner was closed.
6. I have heard Ld. Counsel for the petitioner and perused the entire record. I have also given a thoughtful consideration to the same.
7. First and foremost, it is pertinent to point out that a Will is a legal declaration of the intention of the testator whereby which the testator desires to bequest his property after his death and as such the same carry the last intentions of the testator to be carried out after his death. Further more, it is pertinent to mention that Will is the only document in law which is required to be proved after the death of its author and the law provides a specific procedure for the same.
8. Section 63 (C) of The Indian Succession Act requires that 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 PC 07/11 Kailash Sehgal Vs. State & Ors. 4/9 5 direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of 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.
9. As per section 68 of the Indian Evidence Act, if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called fro 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.
10.It is further a settled provision of law that a court acting under the Indian Succession Act for grant of probate acts as the court of conscience and the jurisdiction of such court is limited only to consider the genuineness of the Will and the question of title or share in the property cannot be gone into by the probate proceedings. The probate court do not decided the question of title or of existence of property itself and any construction relating to right, title and interest to any other person is beyond the domain of the probate court. Reliance placed on 2008 (4) SCC 300 Krishan Kumar Vs. Rajinder Singh Lohra & ors. It is further pertinent to point out that for obtaining the probate the petitioner is not only required to prove the execution of the subject Will but is also required to weed out any circumstances surrounding the PC 07/11 Kailash Sehgal Vs. State & Ors. 5/9 6 subject Will which may be lead to a possible suspicion challenging the execution of the Will. Reliance placed on AIR 1930 PC 24 title Vella Swamy Servai Vs. L. Shivraman Servai.
11.In AIR 1964 SC 539 titled Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee, the law relating to execution of the Will and it is proved before the court of law has been taken up by the Hon'ble Apex Court in details. The Hon'ble court has held that a Will like any other document has to be proved with respect to its execution except as to the special requirement of the attestation as prescribed under section 63 of the Indian Succession Act. The court has further held that the propounder of the Will has to prove strict compliance of the requirement of section 63 and there can be no presumption regarding due attestation of the Will. The Hon'ble court has further held that unlike other documents the Will speaks from the death of the testator and so when it is propounded or produced before the court, the testator who has already departed the world cannot say whether it is his will or not and this aspect naturally introduces at element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will an testament of the departed testator. It has been further held that in order to prove proper execution of the Will the propunder is to establish that the testator had a disposing mind free from all extraneous influences with sound mind. The testator is presumed to be sane having a mental capacity to make a valid will until the contrary is proved. However, PC 07/11 Kailash Sehgal Vs. State & Ors. 6/9 7 the Will should be executed strictly in accordance with section 63 of the Succession Act and to be proved in accordance with sections 67 and 68 of the Evidence Act.
12.Thus, for the purpose of proving a Will before a probate court, three conditions must be proved. (1) that there was due execution and attestation of the Will. 2). that the testator had sufficient mental capacity to execute the will and 3). that the Will executed by the testator was spontaneous and free from suspicious circumstances. Reliance placed on (1998)2 Cal WN 515 Rama Dutta Vs. Atanu Dutta.
13.It is to be borne in mind that the Will as per section 63 not only requires an execution but also requires an attestation in terms of clause 'C'. It is a settled preposition of law that attestation is different from execution and an attesting witness is one who signs the document in presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant with respect to the execution of the document. Reliance placed on (1976) 4 SCC 554 titled Benichand Vs. Kamla Kunwar.
14.Thus, there cannot be legal execution of the Will unless there has been attestation according to section 63 (c) of the Indian Succession Act and the same has also been proved to the satisfaction of the court. Reliance placed on AIR 2005 SC 4362 titled Pentakota Satyanarayana Vs. Pentakota Seetharatnam.
PC 07/11 Kailash Sehgal Vs. State & Ors. 7/9 8
15.In the instant case, it may be seen that the propounded Will dated 16.07.2007 Ex. PW1/B has been attested by only one witness namely Amresh Kumar while the rigours of section 63 (c) of the Indian Succession Act, 1925 requires that the Will is required to be mandatory attested by two or more witnesses, each of whom has seen the testator executing the Will or any other person executing the same at the behest of the executor. Thus, the section clearly provides that there shall be at least two witnesses attesting the execution of the Will by the testator. Though it is not necessary that they are present at the same time for the genuineness of the Will to be required to be proved at least two attesting witnesses should have seen the testator signed the documents and consequently they are required to sign in presence of the testator (AIR 1994 Karnataka 20). The present Will has been attested only by one witness Amresh Kumar, Advocate, who has also been examined before the court as PW2 and the Will cannot be said to have been duly executed unless it is executed and attested in the specific manner laid down in section 63 (c) of the India Succession Act, 1925.
16.In view of the aforesaid discussion and the findings of the court, this court is of the considered opinion that the propounded Will dated 16.07.2007 Ex. PW1/B stated to be allegedly executed by Sh. Sudarshan Pal Sehgal cannot be said to have strictly complied with the requirements of the law in the matter of execution and attestation. The petitioner cannot be granted probate or letters of administration since PC 07/11 Kailash Sehgal Vs. State & Ors. 8/9 9 the succession opens according to law or succession applicable to the deceased testator (1998)8 SCC 598) Mangal Singh Vs. Nathin Singh.
Resultantly, the petition fails and is accordingly dismissed.
17.File be consigned to Record Room after due completion.
(MUKESH KUMAR GUPTA)
DATED 02.01.2013 ADDL.DISTT.JUDGE06
ANNOUNCED IN THE OPEN COURT (jb) CENTRAL/DELHI
PC 07/11 Kailash Sehgal Vs. State & Ors. 9/9
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PC No. 07/11
Kailash Sehgal Vs. State & Ors.
02.01.2013
Present : Sh. Yatinder Sharma, Adv. Ld. Counsel for the petitioner.
Vide a separate judgment announced in the court today, the instant petition is dismissed.
File be consigned to Record Room after due completion.
(Mukesh Kumar Gupta) ADJ06(Central) Delhi 02.01.2013 PC 07/11 Kailash Sehgal Vs. State & Ors. 10/9 11 PC 07/11 Kailash Sehgal Vs. State & Ors. 11/9