Back
2008 Supreme(Del) 275
IN THE HIGH COURT OF DELHI
PRADEEP NANDRAJOG
Rohtas Singh - Appellant
Versus
Jaswant Singh - Respondent
FAO No.577/2002
Decided On : 03-03-2008
Mr. R.M.Aggarwal, Advocate
None.
The legal burden to prove due execution of a will lies upon the person propounding the will. The propounder must establish the testator's competence and execution of the will in accordance with the law.
Headnote:
WILL - Validity - Indian Succession Act 1925 - Section 276 - The court analyzed the will dated 6.10.1989 to determine its validity. The legal burden to prove due execution lies upon the person propounding a will. The propounder must satisfy the court that the instrument is the last will of a free and capable testator. The court examined the evidence and circumstances to establish the testator's competence and execution of the will in accordance with the law. The court found that the propounder successfully established the testator's sound disposing mind at the time of execution, and thus granted letters of administration in favor of the propounder/appellant.
Fact of the Case:
The case involved the validity of the will dated 6.10.1989 as the last legal testament executed by late Sh. Than Singh. The principal beneficiary under the will, Rohtas Singh, sought probate of the will, which was opposed by the remaining legal heirs of the testator.
Finding of the Court:
The court found that the propounder successfully proved the due execution of the will dated 6.10.1989 by establishing the testator's sound disposing mind at the time of execution. The court granted letters of administration in favor of the propounder/appellant.
Issues: The main issue was whether the will dated 6.10.1989 was the last legal and valid testament executed by the testator. The court also considered the testamentary capacity of the testator at the time of execution and the genuineness of the reasons given in the will for revoking the earlier will.
Ratio Decidendi: The legal burden to prove due execution lies upon the person propounding a will. The propounder must satisfy the court that the instrument is the last will of a free and capable testator. The court examined the evidence and circumstances to establish the testator's competence and execution of the will in accordance with the law.
Final Decision: The court granted letters of administration in favor of the propounder/appellant, holding that the will dated 6.10.1989 was duly executed by the testator. The impugned order dated 24.8.2002 was set aside, and no costs were awarded.
1. The question involved in the present appeal is whether the will dated 6.10.1989 is the last legal and valid testament executed by late Sh. Than Singh.
2. Late Sh. Than Singh (hereinafter referred to as the testator) who died on 15.1.1991 was survived by his widow Smt. Birina Devi, 3 sons namely, Sh. Rohtas Singh, Sri Bhagwan and Jaswant Singh and 1 daughter Smt. Sham Devi.
3. On 19.4.19991 Rohtas Singh filed a petition under Section 276 of the Indian Succession Act 1925 seeking probate of the will purported to have been executed by Than Singh on 6.10.1989. He was the principal beneficiary under the will.
4. The will dated 6.10.1989, Ex. P-1, is a computer typed document and consists of 6 sheets. It has been typed in English language. It bears the thumb impression of the testator on each page. It is a registered document.
5. The will, Ex. P-1, has been witnessed by one Sh. Devender Kumar Sharma, Advocate and one Sh. Naresh Kumar Verma, Advocate.
6. In the will it has been stated that while executing the will the testator is revoking an earlier will executed by him on 21.8.1986, Ex.OW4/1. Reason given in Ex.P-1 for revoking the will dated 21.8.1986 and bequeathing major portion of his estate in favour of Rohtas Singh is the cruel behaviour of his two sons Jaswant Singh and Sri Bhagwan and their families towards the testator and his wife. It is further recorded that the said two sons were dishonest and they were attempting to illegally grab the property owned by the testator. It is further recorded that in the month of September 1987 said two sons threatened the testator to hand over the property to them and also forcibly obtained his signatures on certain documents. It is further recorded that one Sh. Baljit Singh who is a relative of Sri Bhagwan, acting in connivance with the sons of the testator have filed a false case against the testator.
7. Widow of the testator supported the will dated 6.10.1989 purported to have been executed by the testator.
8. Remaining legal heirs of the testator i.e. his two sons Sri Bhagwan and Jaswant Singh and daughter Sham Devi had opposed the petition.
9. Defence set up by the objectors was that on 6.10.1989 the testator was bed ridden and was not having required testamentary capacity to execute a will as he was suffering from a paralytic attack. That the will was got executed from the testator by the propounder by playing fraud and coercion upon him. That the properties bequeathed under the will were ancestral properties and not self acquired properties of the testator. That the will dated 21.8.1986, Ex. OW-4/1, is the last legal and valid testament executed by the testator.
10. On behalf of the propounder following 5 witnesses were examined:- i. Devender Kumar Sharma, Advocate PW-1........ To establish the preparation, attestation and due execution of the will Ex. P-1 by the testator. ii. Naresh Kumar Verma, Advocate PW-2.......... To establish the preparation, attestation, registration and due execution of the will Ex. P-1 by the testator. iii. Jitender Kumar Verma, PW-3........ To establish the registration of the will Ex. P-1. iv Rohtas Singh, PW-4........ To establish the genuineness of the will Ex. P-1 and that the execution of the will is not surrounded by suspicious circumstances. v Ravi Kumar Aggarwal, Advocate PW5....... To establish that the testator was in a state of sound disposing mind around the time of the execution of the will Ex. P-1.
11. Devender Kumar Sharma, Advocate in his testimony as PW-1 deposed that he knew the testator since the year 1981 and that he and the other attesting witness had witnessed the due execution of the will Ex. P-1, by the testator. Regarding preparation of the will he deposed that the testator approached him and expressed his desire to execute a will. That after 2-3 sittings with the testator, on 6.10.1989, he prepared a draft of the will in accordance with the instructions of the testator. That the contents of the dr
