Important Point – Probate court only decides upon validity or invalidity of execution of Will.

VALMIKI J. MEHTA, J.

1. This first appeal under Section 299 of the Indian Succession Act, 1925 is filed challenging the judgment of the probate court below dated 20.8.2007. By the impugned judgment, the probate court has allowed the petition and granted probate of the Will dated 12.1.2000 executed by late Sh. Baldev Raj Bhatia. In the court below, there were three petitioners. Petitioner no.1 was the widow of the testator late Sh. Baldev Raj Bhatia, petitioner nos. 2 and 3 were two of the four sons of late Sh. Baldev Raj Bhatia. These petitioners of the probate petition have been arrayed as respondents to this appeal which is filed by the objector/respondent no.1 before the court below namely Sh. Naveen Bhatia and who is the one other son of late Sh. Baldev Raj Bhatia. In the court below, there were two respondents one being the present appellant and the second being fourth son Sh. Anil Bhatia who had filed objections but who thereafter filed his application dated 3.9.2004 and withdrew the objections which were filed by him on 17.1.2003 to the subject Will dated 12.1.2000 of late Sh. Baldev Raj Bhatia.

I may note that the objector, respondent no. 1 in the trial court and the appellant herein, namely Sh. Naveen Bhatia, expired during the pendency of this appeal and he is now represented by his legal representatives. Reference, therefore, to the appellant/objector will wherever the context so requires will mean and include reference to Sh. Naveen Bhatia or his legal representatives who are the present appellants.

2. The issues which call for decision are as regards the due execution, attestation and soundness of mind of the deceased Sh. Baldev Raj Bhatia at the time of making of the subject Will dated 12.1.2000. One more issue which arises between the parties is with regard to whether there were suspicious circumstances in the execution of the subject Will.

3.(i) Before the court below, the petitioners/respondents herein examined a total of six witnesses. Respondents in this appeal deposed as PW-5, PW-2 and PW-1 respectively. PW-3 and PW-4 were Sh. Hardeep Singh and Sh. Amarjeet Singh Kohli being the two attesting witnesses to the Will. Sixth witness was also examined being the record keeper of the concerned Sub-Registrar inasmuch as the subject Will was registered before the Sub-Registrar.

(ii) The attesting witnesses have proved the due execution and attestation of the Will. They have stood the test of cross-examination. In the cross-examination nothing has been elicited from the attesting witnesses that the Will was not duly executed and attested. Also, the attesting witnesses have stood up to the test of cross-examination conducted as regards alleged unsoundness of mind of the deceased testator and which was so alleged by the present appellant. The attesting witnesses also proved the registration of the Will before the concerned Sub-Registrar and the factum of registration was proved through Sh. Sher Singh (referred to as witness PW-3 and which is a repetition because even one attesting witness Sh. Harpreet Singh is designated as PW-3). Sh. Sher Singh, record keeper from the office of the Sub-Registrar at Mehrauli, New Delhi had brought the summoned record and proved the factum of registration of the Will at no. 148 Book no. III, Volume 842 at pages 45-46 on 12.1.2000. There cannot be any dispute to the identity of the executant of the Will i.e. deceased testator inasmuch as in the record of the Sub-Registrar where the duplicate copy of the Will is found there existed the photograph of the deceased testator as the executant of the Will.

4. In my opinion, once the attesting witnesses have proved the due execution and attestation of the Will and it was also proved through the record keeper of the concerned Sub-Registrar that the Will was duly registered, then in my opinion the trial court has rightly held that the Will stood duly proved as Ex.P-1.

5.(i) Learned counsel for the appellant argued that the attesting witnesses w