Dhan Raj alias Tek Chand and Another vs State and Others

Rajiv Sahai Endlaw, J.—Probate is sought of a Will dated 7th May, 1964 and registered with the office of the sub-registrar, Delhi as document No. 68 in book No. 3, Volume No. 10 at pages 45 to 47 on 12th May, 1964, of one Smt Shimli widow of Shri Lal Singh, resident of village Madipur, Delhi who died on 10th January, 1973. The said Smt Shimli was a Hindu. Her husband had pre-deceased her. She left only two children, namely, two daughters i.e., Smt Kishan Dei and Smt Santra. The petitioners are the two sons of Smt Kishan Dei daughter of deceased Smt Shimli. The petitioners alongwith their brother Shri Dayachand who has been impleaded as the respondent claimed to be the beneficiaries under the Will of which probate is sought, The natural heirs of the deceased Smt Shimli, namely, Kishan Dei and Smt Santra have also been impleaded as the respondents. The petition was filed after nearly 15 years of the death of Smt Shimli, stating that the petitioners learnt of the Will only in September 1988 when Shri Mahipal Singh Chauhan handed over the Will to the petitioners. In compliance of Section 281 of the Indian Succession Act, affidavit of one of the attesting witnesses to the will was filed alongwith petition.

Notice and citation of the petition was issued. The brother and mother of the petitioners, impleaded as respondents No. 2 and 3 filed their no objections to the grant of probate. The respondent No. 4 Smt Santra filed her objections and to which reply was filed by the petitioners. Respondent No. 4 Smt Santra in her objections did not dispute the residence of the deceased Smt Shimli at Delhi, did not dispute the date of demise of Smt Shimli and admitted that Smt Shimli was a Hindu and left only two natural heirs i.e., her daughters Smt Kishan Dei (mother of the petitioners) and Smt Santra. It was further stated that the respondent No. 4 Smt Santra though married was not living with her husband and was living with her mother Smt Shimli and enjoyed a good relationship with her; that Mr Ami Chand being the husband of Smt Kishan Dei the other daughter of the deceased Smt Shimli always had an eye on the property of Smt Shimli and wanted to grab the said property. It was stated that Smt Shimli had never executed any Will and the Will dated 7th May, 1964 had been forged and got registered from some lady impersonating to be Smt Shimli. It was further averred that in the year 1964 Smt. Shimli was too old and mentally weak and was not of sound disposing mind.

The petitioners filed their reply to the aforesaid objections in which they stated that, in fact, both Smt Shimli and the respondent No. 4 Smt Santra who was separated from her husband were living in the house of the petitioners only. It was further stated that Smt Shimli always wanted to leave her properties to the sons of her daughter Smt Kishan Dei and succession certificate had also been obtained by Smt Kishan Dei and to which no objection had been issued by Smt Santra.

The following issues were framed on 28th February, 1996:

Whether the deceased Smt Shimli had executed the Will dated 7th May, 1964 while she was in sound disposing mind?

Relief.

The petitioners examined Shri Prithi Singh s/o Shri Sheesh Ram as PW1. He deposed that he knew Smt Shimli Devi and that Smt Shimli Devi had executed a Will in his presence. He further deposed that he had signed the Will as an attesting witness and identified his signatures at point "A" on the registered Will Exhibit PW1/1 and identified the thumb impression of Smt Shimli at point "B" on the same. He deposed that Smt Shimli had put the said thumb impression in his presence. He further deposed that Shri Ami Chand, the other attesting witness, was also present at that time and he had also signed the will at point "C". He stated that he signed the Will in the presence of the executor i.e., Smt Shimli and that at the time of execution of the Will Smt Shimli was of sound mind and good health. The said witness was cross examined by the counsel for the respondent No. 4 Smt Santra. In cross examination he admitted that the other attesting witness Shri Ami Chand was the son in law of Smt Shimli and deposed that Shri Ami Chand had died. He deposed that the Will was written at Tis Hazari Court and at that time Smt Shimli, Shri Ami Chand and the witness i.e., Shri Prithi Singh were present. He further deposed that the Will was written by the deed writer whose name he did not remember. He denied that Smt Shimli was not aware of the contents of the Will and also denied the suggestion that the Will was not read over to her. The said witness could not depose when the Will was registered. In this regard it may be stated that the said witness is not a witness to the registration of the Will. He denied the suggestion that Shri Ami Chand had got the thumb impression of Smt Shimli. I notice that the suggestions put to the attesting witness to the Will belie the pleading in the objection that the Will was got registered from some lady impersonating as Smt Shimli.

That since the aforesaid witness is the only attesting witness to the Will examined in this case, it has to be seen whether the Will has been proved or not. Section 63 of the Indian Succession Act requires the testator to sign or affix his mark to the Will at such a place that it shall appear that it was intended to give effect to the writing as a Will. Exhibit PW1/1 is in Urdu language. The thumb mark identified by alphabet "B" on the same as deposed by PW1 Shri Prithi Singh is at the bottom of the said document, namely, at a place where the executant of a document normally signs. An English translation of the Will placed on record and which translation was at no time challenged by the respondent No. 4 also shows the thumb impression of Smt Shimli at the end of the document. The witness as aforesaid has deposed to Smt Shimli having affixed her thumb impression to the document and thus the first requirement of Section 63 is thus fulfilled. The other requirement of Section 63 is that the Will has to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will and each of the witnesses should have signed the Will in the presence of the testator. The fulfillment of the said requirement of Section 63 is also borne out from the testimony of PW1 which could not be shaken in cross examination. Thus I find the Will to have been proved in accordance with law.

The petitioners examined as PW2 Mr Ram Narain who claimed to be knowing the deceased Smt Shimli and deposed that at the time of her death and before that Smt Shimli was of sound health and mind. Save for the suggestion that the witness was deposing falsely, there is no other cross examination by the counsel for the respondent No. 4 of the said witness.

The petitioners also examined Mr Mahipal Singh as PW3. The said Mr Mahipal Singh deposed that the Will had been lying with him and he handed over the same to the petitioner in the first week of September, 1998. The said witness was cross examined at length by the counsel for the respondent No. 4 Smt Santra. I do not consider it necessary to discuss the cross examination of the said witness inasmuch as the said witness was only to explain the long lapse of time from demise after which the petition was filed. However, since there is no prescribed period of limitation for applying for probate and further in view of registration of the document being undisputed, the time of presentation of petition is irrelevant and in the facts is not a suspicious circumstance.

Moreover, the respondent No. 4 Smt Santra also stopped appearing in the case and did not lead any evidence and on 27th May, 2005 the right of the respondent No. 4 to lead evidence was closed. The counsel for the respondent No. 4 has also stopped appearing thereafter. There is thus no evidence to rebut the evidence of the petitioner.

I have already found above the Will to have been proved. In the absence of any evidence from the respondent No. 4 challenging the sound mind of the deceased at the time of making the Will and on the evidence led, I also find that the deceased at the time of making the Will was of sound mind. It cannot also be lost sight of that the Will was registered. The English translation of the Will filed before the Court shows the same to be bearing an endorsement of the sub-registrar, Delhi to the effect that Smt Shimli had been read over and explained the contents of the Will and that she was identified by Shri Ami Chand and by Shri Sunder Singh, Advocate and that Smt Shimli had admitted execution and contents of the Will to be correct. In the absence of any evidence, there is presumption of the correctness of the endorsement aforesaid of the sub-registrar in the performance of his official duties/functions.

I also do not find anything unusual in Smt Shimli making a Will in favour of her grandsons i.e., the sons of her daughter Smt Kishan Dei. The objections of the respondent No. 4 do not state that the respondent No. 4 being the other daughter of Smt Shimli had any son. The whole purpose of making a Will is to bequeath the property to some of the natural heirs or to persons other than the natural heirs. The desire of Smt Shimli to leave her properties to her grandsons rather than to her daughters is in consonance with the thinking of the generation to which Smt Shimli belonged and in consonance with the then times. I therefore decide issue No. 1 in favour of the petitioners.

Issue No. 1 having been decided in favour of the petitioners and it having been found that the Will of which probate is sought was executed by the person by whom it is purported to be executed and that the same was executed validly and in a sound disposing mind, the petition is allowed and the probate is ordered to be granted to the petitioners of the Will dated 7th May, 1964 of Smt. Shimli.