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2018 Supreme(Del) 3078
IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATHIBA M. SINGH, J.
DINESH AGGARWAL & OTHERS - Petitioners
Versus
STATE & OTHERS - Respondents
TEST. CAS.95 of 2014
Decided On : 04-09-2018
For the Petitioner: Mr. D.R. Bhatia, Mr. Subirja Akbar Warsi & Mr. Sandeep Thukral, Adv.
For the Respondent:Mr. Harish Malhotra, Senior Advocate with Mr. R.K. Modi & Mr. Rajinder Aggarwal Advocates.
The main legal point established in the judgment is the strict adherence to the requirements for proving a Will under Section 63 of the Indian Succession Act, including the necessity of two attesting witnesses and the implications of suspicious circumstances surrounding the execution of the Will.
Headnote:
Indian Succession Act - Testamentary Case - Section 276 - Summary of Acts and Sections: Indian Succession Act, 1925, Section 276, Section 237, Section 63, Section 65, Section 68 - The judgment discusses the requirements for proving a Will under Section 63 of the Indian Succession Act, the necessity of two attesting witnesses, and the implications of suspicious circumstances surrounding the execution of the Will. The court also emphasizes the need for primary evidence and the limitations of relying on secondary evidence.
Fact of the Case:
The case involves a testamentary case filed under Section 276 of the Indian Succession Act, 1925 in respect of a Will dated 19th February, 2009 of Late Sh. Bishan Chand Aggarwal. The Petitioners, who are the brothers of the deceased, claim to be the executors of the Will. The Respondents, including the wife and children of the deceased, have filed objections to the grant of probate, alleging suspicious circumstances surrounding the Will.
Finding of the Court:
The court found that the original Will was not produced and the certified copy of the Will did not meet the requirements of primary evidence. The Will was not proved in accordance with law as it lacked the necessary attesting witnesses and was surrounded by suspicious circumstances. The court dismissed the petition for probate.
Issues: (i) Whether the Will propounded by the petitioner dated 19.2.2009 is the last validly executed Will of late Shri Bishan Chand Aggarwal in his sound disposing mind? (ii) Whether the Will has not been attested by two witnesses as mandatorily required in law? If so, whether the alleged Will can be acted upon? (iii) Whether late Shri Bishan Chand Aggarwal as not competent and empowered to execute the Will, as alleged in the objection petition? (iv) Relief.
Ratio Decidendi: The court emphasized the requirements for proving a Will under Section 63 of the Indian Succession Act, the necessity of two attesting witnesses, and the implications of suspicious circumstances surrounding the execution of the Will. The court also highlighted the need for primary evidence and the limitations of relying on secondary evidence.
Final Decision: The petition for probate was dismissed by the court.
Prathiba M. Singh, J.
1. The present testamentary case has been filed under Section 276 of the Indian Succession Act, 1925 in respect of Will dated 19th February, 2009 of Late Sh. Bishan Chand Aggarwal. The Petitioners are the brothers of the deceased and claim to be the executors of the said Will. As per the Will, the deceased claims to be the owner of the following property:
“I am have full rights and title to and am possessed of One Half undivided share of BUILT UP PROPERTY BEARING NO. G-92, AREA MEASURING 370 Sq. Yds. I.E. I AM ENTITLED TO UNDIVIDED 185 SQ. YDS, CONSISITING OF WHATSOVER THEREIN, WITH THE RIGHTS OF UPPER STOREY CONSTRUCTION UP TO THE LAST STOREY, FITTED WITH ELECTRICITY AND WATER CONNECTION, BOTH IN RUNNING CONDITION, WITH THEIR SEPARATE METERS INSTALLED THEREON, WITH ALL FIXTURES AND FITTINGS FITTED THEREON, SITUATED IN THE LAYOUT PLAN OF PREET NAGAR, CO-OPERATIVE HOUSE BUILDING SOCIETY, COLONY KNOWN AS PREET VIHAR, DELHI-92.”
The deceased is claimed to have bequeathed 40% of his share to one of his brothers – Sh. Dinesh Aggarwal and 15% each to his other brothers – Mr. Mukesh Kumar Aggarwal, Mr. Rakesh Kumar Aggarwal, Mr. Umesh Aggarwal and Mr. Amit Aggarwal. The Will is claimed to have been registered with the Sub-Registrar’s Office on 19th February, 2009 and is stated to have been witnessed by two witnesses, namely, Mr. Mahesh Chand Jain and Mr. Chandra Prakash Srivastava.
2. Respondent No.1 is the State. Respondents No.2 to 6 are the wife, two sons and two daughters of the deceased. Respondents No.2 to 6 have filed objections to the grant of probate. It is the case of the Respondent that the Will is surrounded by suspicious circumstances as it does not even mention the immediate family of the deceased or the reasons for disinheriting them. Considering the nature of the objections, the following issues were framed on 13th July, 2015:
(i) Whether the Will propounded by the petitioner dated 19.2.2009 is the last validly executed Will of late Shri Bishan Chand Aggarwal in his sound disposing mind? OPP.
(ii) Whether the Will has not been attested by two witnesses as mandatorily required in law? If so, whether the alleged Will can be acted upon?
(iii) Whether late Shri Bishan Chand Aggarwal as not competent and empowered to execute the Will, as alleged in the objection petition? OPR.
(iv) Relief.
3. Petitioner No.1 appeared as PW-1, the record keeper from the Sub-Registrar’s Office appeared as PW-2 and Sh. Mahesh Chand – the attesting witness appeared as PW-2(A). On behalf of the Respondent, one of the sons – Sh. Deepak Aggarwal, Respondent No.4 appeared as RW-1. The following documents have been exhibited by the witnesses:
(i) Death certificate of Late Sh. Bishan Chand Aggarwal – Ex. PW-1/1;
(ii) Certified copy of Will dated 19th February, 2009 – Ex.PW-1/2;
4. Learned counsel for the Petitioner submits that the original Will could not be produced as the same has been lost. It is submitted that the Will is a registered Will, which has been confirmed by the official from the Sub-Registrar’s Office. The attesting witnesses have also deposed about the authenticity of the same. According to him, the deceased was in proper frame of mind and had accordingly executed the Will. He relies on the testimony of the attesting witnesses. There was a criminal case which was pending against Respondent No.3 – Mr. Manoj Aggarwal. RW-1 clearly admits that no criminal complaint has been filed by him in respect of forgery, fabrication or manipulation of the Will dated 19th February, 2009. The testator being in good health and having executed a registered Will, the probate is liable to be granted.
5. Ld. Senior Counsel for the contesting Respondent, on the other hand submits that he objects to the grant of probate on the following grounds:
(i) The original Will has not been produced and there is neither a plea nor a statement in the evidence as to the destruction or loss of the original or the circumstances leading to the alleged des
