MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

1. In the present proceedings, the petitioner seeks a probate of the Will of Late Shri Chander Bhan who died on 26.9.1991. The probate is in respect of two immovable properties i.e. 4315, Gali No.5, Tri Nagar, Delhi and also 4216, Gali No.5, Tri Nagar, Delhi.

2. The pleadings emerging from the case are that the Late Chander Bhan executed a Will on 21.1.1991 (Ex.PW-1/1) in terms of which he bequeathed the said first property to the first petitioner and the second property to the second petitioner. The first petitioner is the testator’s daughter in law, (being the widow of his eldest pre-deceased son); the second petitioner is the testator’s grandson being the son of the first petitioner. The Will is a registered one. The petitioners contend that the testator was in sound disposing mind and voluntarily bequeathed the properties by duly executing the Will on the date claimed by them in the presence of two attesting witnesses i.e. Mr. L.N. Babbar and Mr. Subhash Chander.

3. The testator had five sons and two daughters. The probate petition is contested by testator’s surviving three sons and the legal representatives of the fourth pre-deceased son. His daughters, however, are not contesting the proceedings. The objectors contend that the probate cannot be granted as the Will was forged and that the testator had executed a subsequent Will on 25.8.1991. The testator died on 26.9.1991.

4. The petitioners in support of their case rely upon on the depositions of one of the attesting witnesses Shri L.N. Babbar who has deposed as PW-3. Besides they rely upon the evidence of PW-1, an employee from the Sub-Registrar’s office, who produced the relevant registers and original Will, as well as the PW-2, who is the second petitioner in this case. The respondents in support of their case relied upon the deposition of Jai Kishan Dass, Respondent No.3, who deposed as RW-1 and that of Shri P.P. Gupta, who deposed as RW-2.

5. This Court on 14.5.2001, framed only one issue for consideration i.e. whether the Will propounded in this case dated 21.1.1991 is genuine and was validly executed by the testator. When the case was called out, the petitioner’s counsel was present. Respondents were unrepresented. However, the petition is complete with all the records including the documents and the depositions of witnesses. In these circumstances, the Court is proceeding to pronounce judgment under the provisions of Order-XVII, Rule-2, CPC.

6. The attesting witness Shri L.N. Babbar deposed as PW-2 and stated that he drafted the Will and had been earlier working in the office of the Sub-Registrar. He identified the Will, which was exhibited as PW-1/1 and stated that it was drafted under the instructions of the testator, who signed the Will at point ‘A’ in his presence and that of the other attesting witness Shri Subhash Chandra. He identified his signature at point ‘B’ and that of Shri Subhash Chandra at point ‘C’, and again he identified another set of signatures of the testator, himself and of Shri Subhash Chandra at points ‘E’, ‘F’, ‘G’ &’ H’. He stated that attestation was in the presence of testator. He further added that the testator appeared to be of sound and disposing mind and was in his senses at the time of signing the Will. He was cross examined as to whether he maintained any records about the Wills drafted by him and who used to consult him in this regard. He also stated in cross examination that he faithfully recorded whatever was asked for by the testator Shri Chander Bhan. He clarified that no Will other than PW-1/1 was executed by the testator in his presence or was drafted by him.

7. Shri Jagdish Chander, Record Clerk from the office of Sub-Registrar was present in the Court on 4.7.2005. He was discharged after the relevant document i.e. the Will is taken on the file. Shri Jagdish Chander was present in the Court on several dates. The second petitioner was examined as PW-2; he tendered his affida