Registrar, University of Delhi vs State and Others

Manmohan Singh, J.—The present probate case has been filed on behalf of petitioner/Delhi University for grant of probate of Will dated 13th March, 1974 of the testator, Sh. Roshan Lal. The case of the petitioner is that late Sh. Roshan Lal was the absolute and exclusive owner of cottage No. 13, West Patel Nagar, New Delhi (hereinafter referred to as the "suit property") who died at Delhi on 2nd February, 1997. The said property was the self acquired property of late Sh. Roshan Lal.

During his life time, Sh. Roshan Lal approached the petitioner/University of Delhi and offered to give the said property to the University by way of Will. He offered that after his death till such time as his wife was alive, the University would be entitled to rent in respect of one shop in the said property and that his wife would be entitled to live in the said property during her lifetime and also to recover rent which may accrue in respect of other shops in the property.

After due discussion with the officials of University, the deceased Sh. Roshan Lal executed a Will on 13th March, 1974 in the presence of two attesting witnesses namely Sh. Madan Lal Kapoor (other name is not legible) which was duly registered on 16th March, 1974 thereby bequeathing the said property in favour of the petitioner/University. It is alleged that the said Will was the last Will of late Sh. Roshan Lal.

After death of Sh. Roshan Lal, Smt. Sita Devi, widow of Sh. Roshan Lal continued to deposit rent @ Rs. 60/- per month in respect of shop No. 10. The last rent was sent by her on 27th February, 1979. She continued to enjoy the property as well as the rent of remaining shops in terms of the Will dated 13th March, 1974. However, the University did not receive any rent after 27th February, 1979.

Smt. Sita Devi died on 12th May, 1992. As per the petitioner, it then became entitled to the entire said property as well as the rents of all the shops therein. In the said Will dated 13th March, 1974, the Registrar University of Delhi has been named as the sole executer of the Will and it is thus entitled to obtain probate of the Will.

Respondent Nos.2 to 5 are the daughters and respondent Nos.6 & 7 are sons of late Sh. Roshan Lal. During the pendency of the case, respondent No. 7 also died and his legal representatives have been substituted in his place. Respondents No. 2 to 6 have remained ex-parte in the case, only respondent No. 7 has filed the objection to the grant of probate.

The respondent No. 7 has basically raised the objection that late Sh. Roshan Lal was not competent to make the Will in respect of the property in question as it was an ancestral property. The respondent No. 7 objecting to the present probate petition submitted that the present suit property has been allotted to late Sh. Roshan Lal after the 1947 partition by the Ministry of Rehabilitation in lieu of his ancestral property in Lahore (Pakistan) in India. Sh. Roshan Lal died intestate on 2nd February, 1997 leaving behind respondent Nos.2 to 7 as his class-I legal heirs.

It is contended by respondent No. 7 that Sh. Roshan Lal was basically a diabetic patient and in the year 1964, he had suffered a heart attack after which his health started deteriorating. It is stated that the Will left by him besides being invalid in the eyes of law was also not made in a sound disposing mind. The same is therefore, void abinitio.

It is also contended that the alleged Will does not mention the reasons for disinheriting other sons or daughters of the alleged testator as the relations between them were very cordial. It is urged that the alleged Will besides being surrounded by suspicious circumstances suffers from material defects. The alleged Will has neither been executed as per law as required by Section 63 of the Succession Act, 1925 nor it has been proved as per law as required by Sections 68 and 69 of the Evidence Act, 1872.

It is contended that the alleged Will has been attested by only one attesting witness i.e. Sh. Madan Lal Kapoor at point A of the Will. There are two signatures at No. 1 and 2 but the name and whereabouts of the persons, who have been allegedly shown to sign as attesting witnesses are not known. Not even an iota of description of these two alleged witnesses has been given in the pleadings or in the evidence. A bare perusal of the alleged Will leaves no ground for doubt that it has been signed by only one attesting witness.

It is argued by the learned Counsel for the petitioner that the probate court has not to determine the title to the property. The court is only concerned with the legality, validity and the due execution of the Will.

It is submitted that the petitioner/University has successfully proved on record the Will dated 13th March, 1974 and it is a legal and valid Will which was duly executed by late Sh. Roshan Lal in favour of the petitioner/University. The University is entitled to all rights in the said property as absolute owner thereof under the said Will.

After completing the pleadings, following issues were framed on 11th October, 2009:

Whether the deceased Sh. Roshan Lal has duly and validly executed the Will dated 13th March, 1997?

Relief.

After seeing the certified copy, PW-1 Mr. S.K. Verma confirmed that the Will was registered in the office on 16.3.1974 vide registration No. 598, additional book No. III Volume No. 55, bearing pages 167 to 169.

The petitioner/University of Delhi has also produced one Sh. S.C. Sharma, PW-3 as witness who was the estate officer working with the University of Delhi and was duly conversant with the facts of the case. He has proved his authority to make statement as well as the Will which is Ex. PW1/1. The said witness also produced certain other documents Ex. CW 3/1 to Ex. CW 3/31 which were the letters written by Sh. Roshan Lal.

He stated that late Sh. Roshan Lal was the absolute owner of the cottage bearing No. 13, West Patel Nagar, New Delhi and the same was his self acquired property. He made a Will in this respect thereby bequeathing his property to the University which was executed and registered with the Sub Registrar on 16.3.1974 vide registration No. 598, additional book No. III Volume No. 95, bearing pages 167 to 169. In the cross examination, he made it clear that he does not have any personal knowledge regarding the abovesaid facts as he obtained these facts from the judicial record of the case lying with the Delhi University.

PW-2 Sh. Rajinder Lal Kapoor identified the signatures of his father late Sh. Madan Lal Kapoor which appeared on the original Will brought by PW -1 in the court and deposed that he had seen him writing and signing.

The respondent No. 7 appeared himself as his own witness in support of his defence and summoned official witnesses to show that the property in question was an ancestral property. He however, did not lead any evidence to show that the Will dated 13th March, 1974 was not executed by his father or that it was not a valid or property executed Will. The respondent No. 7 examined himself as RW-1 and deposed in detail that the property in question was an ancestral property therefore the deceased Sh. Roshan Lal could not have executed any Will with regard to it. In para 4 of the affidavit, the respondent No. 7 had denied the signatures of the alleged testator and deposed that the alleged Will is not free from suspicious circumstances. In para 5 and 6 of his affidavit, he had mentioned that Sh. Roshan Lal was not physically fit and was not in a sound disposing mind from 1970 till the date of his demise i.e. 2.2.1997.

The LRs of the respondent No. 7 filed an application, being IA No. 3288/2009 seeking direction to the concerned department to trace the file/record and bring it to the Court so that the issue of the real ownership of the property in question could be decided after summoning the requisite record. However, despite several attempts, the concerned department could not bring the summoned record and ultimately vide its letter dated 8th February, 2008, it was submitted before this Court that the summoned record could not be traced. It was also pointed out by this Court that the court exercising its probate jurisdiction would not go into the question of title of the property and that its jurisdiction is confined to consider the genuineness of the Will, the counsel of the LRs of respondent No. 7 did not press for the application. The Court vide its order dated 30.4.2009 granted liberty to the LRs of respondent No. 7 to agitate the issue of title of the property in any other appropriate proceedings and accordingly the evidence of the respondent No. 7 was closed.

It is argued by learned Counsel appearing on behalf of LRs'' that the petitioner has miserably failed to prove the alleged Will as required by Sections 68 and 69 of the Evidence Act. None of the alleged attesting witnesses have been called to prove the genuineness of the alleged Will which is the mandatory requirement of Section 68. Moreover, nowhere in the pleadings or in the affidavit has the petitioner explained the reason for not calling any of the alleged attesting witnesses.

Section 69 deals with the proof of execution of document required by law to be attested and is applicable where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search, by examining witnesses who were able to prove the handwriting of the testator or executants.

No doubt as per law, the onus of proving the Will is on the propounder and in the absence of suspicious circumstances, proof of testamentary capacity and the signature of the testator is sufficient to discharge the onus.

Where all the attesting witnesses are dead, a Will can be proved in the manner prescribed for poof of a document. However, if no attesting witness can be found, i.e., if he is dead, insane, blind, too ill to attend, suffering imprisonment, out of the jurisdiction of the court, kept out of the way by the adverse party or cannot be traced after diligent search; or if the document purports to have been executed in the United Kingdom of Great Britain and Northern Ireland, two things must be proved--(1) the signature of one attesting witness, and (2) the signature of the executant. They may be proved in the manner indicated in Section 69 by the evidence of persons who are able to prove the handwriting of the attestor and of the executants. Such proof of hand-writing and signature is considered prima facie sufficient to charge the other party. This is founded on the rule that on proof of the hand-writing of the attesting witness, it must be presumed that everything was rightly done. It is thus clear that in the case of a Will, if the attesting witness cannot be found, the execution can be proved by examining a witness who can identify the signature of the attestor.

In the case of Vasant Ram Vig and Ors. v. State 2007 VII AD (Delhi) 88 it was held as under:

Therefore, if a person had seen the testator signing in the Will, as well as he could peak the execution and the attestation of attesting witnesses, are in their hand writings and the signature of the person, who executed the document is in the hand writing of that person. Preciously, this is the procedure adopted by the propounder in this case, speaking the execution of the Will, attestation, etc., not challenged.

In the case of R. Vasanthi v. Janaki Devi (1993) 3 CTC 378 it was held that if none of the attesting witnesses are available, witness identifying signature of attestor may be examined u/s 69. Evidence of identifying witness has to be taken as valid execution and attestation.

In the case of Mohammed Mohideen Vs. Muthukumara Thevar and Another, it was held that Will can be proved by examining scribe if both attesting witnesses are not available.

As regards the contention of respondent No. 7 that the testator has no right to deal with the property as it is an ancestral property, it is clear that in the probate proceedings, the court was required only to decide as to whether the testator had executed the Will in question and, if so, to grant probate/letters of administration in that behalf. The purpose of probate proceedings is to find out whether Will in question, which is projected, is the last Will of the testator and validly executed. It is settled law that the probate court does not decide any question of title or of the existence of the property itself.

On the other hand, respondent No. 7 in cross examination deposed that he has not filed any document/medical paper to show that his father was not of a sound and healthy mind when the Will was executed by him. He identified the signatures of his father, Sh. Roshan Lal who was residing in Lahore prior to the partition of India. It is also a matter of fact that the respondent No. 7 had failed to prove that the Will was a forged document nor it was proved by respondent No. 7 that late Sh. Roshan Lal had been given the suit property after partition in lieu of his ancestral property in Lahore or that he died intestate or was not competent to make the Will.

I find no merit in the contentions of the objector. In my view, the Will was validly executed and registered. PW-3, Sh. Rajinder Lal Kapoor has identified the handwriting and signature of his father, Sh. Madan Lal Kapoor who was one of the attesting witness of the Will. Registration of the Will was also proved by the testimony of PW-1 and PW-3. Therefore, there can be no doubt regarding the genuineness of the Will.

The petition is allowed. The petitioner is granted probate of the Will dated 13th March, 1974 subject to the petitioner filing necessary court fees on the value of the immovable property as stated in the Will. The letter of probate therefore, be issued to the petitioner on filing a surety bond and necessary court fees. The petition stands disposed of.