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IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J.MEHTA, J.
R.K. Aggarwal & Anr. - Petitioners
Versus
State of Delhi & Ors. - Respondents
TEST CAS.11 of 2003
Decided On : 11-04-2018
Probate - Will Execution - Indian Succession Act, 1925 - Section 222, Section 63, Section 68, Section 71
Fact of the Case:
The probate petition sought probate of a Will executed by late Smt. Sudha Rani. The deceased's son and another individual sought probate, while one son contested the petition. The attesting witnesses failed to depose that they signed the Will in the presence of the testator, leading to the potential dismissal of the case. However, the court relied on a Supreme Court judgment to interpret implied attestation and allowed the case.
Finding of the Court:
The court found that the attesting witnesses' assertion of being attesting witnesses implied the testator's signature in their presence. The contesting son failed to dispute the Will's validity, and the deceased's provision for her mentally challenged son supported the Will's validity.
Issues: Validity of the Will execution, attestation by witnesses, and mental capacity of the deceased.
Ratio Decidendi: The court relied on the interpretation of attestation and execution requirements under the Indian Succession Act, 1925, and the Evidence Act, 1872, to allow the case despite technical deficiencies.
Final Decision: The court granted Letters of Administration with respect to the Will dated 26.3.2002 of late Smt. Sudha Rani to the appointed individual.
VALMIKI J. MEHTA, J.
1. This probate petition is filed by two petitioners seeking probate of the Will dated 26.3.2002 executed by late Smt. Sudha Rani. Petitioner no.1 Sh. Rajeev Kumar Aggarwal is the son of late Smt. Sudha Rani. Original petitioner no.2 Sh. Hari Mohan Goel was the father of the deceased testator Smt. Sudha Rani, and who expired pendente lite, and he is now substituted by his son Sh. Anil Goel and who as per the subject Will was appointed as a guardian of the petitioner no.1 after the death of Sh. Hari Mohan Goel.
2. There are a total of two private respondents. Respondent no.2 is the daughter of late Smt. Sudha Rani and who has not contested the petition. The fact that respondent no.2 was served but did not appear in spite of service with legal consequences flowing against respondent no.2 is noted in the order of Joint Registrar of this Court dated 31.7.2003.
3. Respondent no.3, one another son of Smt. Sudha Rani, was the sole contesting respondent. In my opinion however the expression ‘contesting respondent’ qua respondent no.3 is misconceived because in the objections filed on 6.8.2003 by the respondent no.3/Sh. Sanjeev Kumar, he has not disputed that the signatures appearing on the subject Will are not of Smt. Sudha Rani and that the signatures of the attesting witnesses are not the signatures of the attesting witnesses who witnessed the Will and that Smt. Sudha Rani was not of sound disposing mind.
4. As per this testamentary case probate is sought with respect to the Will dated 26.3.2002 of Smt. Sudha Rani, and which Will is duly registered with the concerned Sub-Registrar of Delhi. Since the original petitioner no.2 was appointed as an executor has died, and because probate can only be granted to an executor of a Will in view of Section 222 of the Indian Succession Act, 1925 in case this testamentary case will succeed then what will be granted will not be a probate but Letters of Administration in favour of the present petitioner no.2/Sh. Anil Goel.
5. The following issues were framed in this case on 19.7.2004:-
“1. Whether the deceased Smt. Sudha Rani executed a valid registered Will dated 26.3.2002 in favour of the petitioner no.1 while in sound state of mind? OPP
2. Whether Shri Hari Mohan Goel, petitioner no.2 was appointed executor under the will referred and is he entitled to letters of administration in respect of the estate of deceased?
3. Relief.”
6. In support of his case, petitioner no. 1 examined himself and filed his affidavit by way of evidence. Petitioner no.1 was examined as PW-4. Petitioner no.2 Sh. Hari Mohan Goel appeared as PW-1 in support of the testamentary case and he was duly cross-examined. It is noted that PW-1 Sh Hari Mohan Goel thus was examined-in-chief and cross-examined before he expired on 25.7.2007.
7. Petitioners have also examined two attesting witnesses of the Will as PW-2 and PW-3 namely Smt. Kunta Devi and Smt. Sushma Goel respectively. These witnesses have also being cross-examined in detail on behalf of respondent no.3/objector.
8. Respondent no.3 thereafter stepped into the witness box and led his evidence-in-chief as RW-1. Respondent no.3/Sh. Sanjeev Kumar/RW-1 was duly cross-examined on behalf of the petitioners.
9. The issue is that whether petitioners have succeeded in proving the Will dated 26.3.2002 of late Smt. Sudha Rani.
10. A Will is proved as per Section 63 of the Indian Succession Act when it is proved that the Will was executed by the testator in sound disposing mind and the testator signed in the presence of the attesting witnesses and the attesting witnesses signed in the presence of the testator. As per Section 68 of the Indian Evidence Act, 1872 a Will is proved by leading of evidence of at least one attesting witness.
11. A reading of the evidence-in-chief filed on behalf of the two attesting witnesses PW-2 and PW-3 Smt. Kunta Devi and Smt. Sushma Geol shows that unfortunately there are no depositions by these witnesses that they signed the Will in
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