Giriga Ojha vs State and Others

V.K. Jain, J.—This is a petition for grant of Probate in respect of the Will executed by late Shri Shiva Sharan Ojha on 03rd January, 2005. The Petitioner is the wife of the deceased-testator, whereas Respondents 2, 3 and 5 are his sons. Respondent No. 4 is the daughter of the deceased. The Petitioner sought Probate of the Will only in respect of ground floor of property No. A-36, Lok Vihar, Pitampura, Delhi-110034 and not in respect of the entire estate of the deceased.

Objections were filed by Respondent No. 5, who took a preliminary objection that a petition seeking probate only in respect of the ground floor of property No. A-36, Lok Vihar, Pitampura, Delhi-110034 is not maintainable since probate is to be granted in respect of the entire Will and not a part of it. However, execution of the Will dated 03rd January, 2005 was admitted by Respondent No. 5.

In the rejoinder-affidavit filed by the Petitioner, she clarified that she was seeking probate in respect of the entire estate of the deceased, including the ground floor of property No. A-36, Lok Vihar, Pitampura, Delhi-110034.

The Will Ex.PW-1/3 purports to have been executed in the presence of two attesting witnesses, namely, Mr Yashpal Sachar, R/o A-40, Lok Vihar, Pitampura and Mr Dev Raj Adlakha, R/o A-43, Lok Vihar, Pitampura. Both of them have been examined by the plaintiff. In his affidavit, Mr Yashpal Sachar has stated that he alogn with Mr Dev Raj Adlakha was present on 03rd January, 2005 when the testator late Shri Shiva Saran Ojha affixed his hand and signature to the Will. The testimony of Mr Yashpal Sachar has been corroborated by the other attesting witness Mr Dev Raj Adlakha.

The Petitioner has also examined herself as PW-1 and has stated that Respondents 2, 3 and 5 are her sons, whereas Respondent No. 4 is her daughter. She has further stated that late Shri Shiva Saran Ojha died on 20th June, 2005 and a copy of the Death Certificate is Ex.-1. The receipt issued by Punjabi Bagh Crematorium, where he was cremated on 21st June, 2006, is Ex.-2. She has further stated that at the time of death, late Shri Shiva Saran Ojha was residing at A-36, Lok Vihar, Pitampura.

Section 68 of Evidence Act, to the extent, it is relevant, provides that 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 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. Since the Will is a document required by law to be attested by at least two witnesses, the Petitioner could have proved it by producing one of the attesting witnesses of the Will. In the case before this Court, the Petitioner has examined both the attesting witnesses to the WILL and has thereby duly proved the document in terms of the requirement laid down in Section 68 of the Evidence Act.

A bare perusal of Section 63(c) of Indian Succession Act would show that a Will is required to be attested by two or more witnesses and each of them must have seen the Testator sign or affixing his mark to the Will or should have seen some other person signing the Will in the presence and under the directions of the Testator or should have received a personal acknowledgement from the Testator with respect to his signature or mark or signature of the another person who signs the Will in the presence and under the direction of the Testator and it is also necessary that each witness should sign the Will in the presence of the Testator. This, however, is not the requirement of law in India that both the attesting witnesses should also sign in the presence of each other.

The reports of the Chief Revenue Controlling Authority have already been received and are on record. Valuation Report has been received in respect of Delhi property as well as the property in Gopalganj, Bihar.

The Petitioner has duly proved the execution of the Will dated 03rd January, 2005 by producing both the attesting witnesses. The Objection taken by Respondent No. 5 also does not survive anymore since the Petitioner is seeking Probate in respect of whole of the estate of late Shri Shiva Saran Ojha, which is subject matter of the Will.

It is directed that a Probate of the Will dated 03rd January, 2005 executed by late Shri Ojha be issued to the Petitioner in accordance with the Rules with a copy of the Will annexed to it.