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IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATHIBA M. SINGH, J.
Jai Singh - Appellant
Versus
State - Respondent
Test Case No. 2 of 2003; Interlocutory Application No. 7197 of 2010
Decided On : 13-05-2019
Indian Succession Act - Probate - Section 276 - Summary of Acts and Sections: Indian Succession Act, 1925, Section 276 - The court analyzed the execution and validity of a Will under Section 276 of the Indian Succession Act, 1925. The key legal provisions discussed included the requirements for a valid Will, the burden of proof, and the consideration of suspicious circumstances. The court's decision was influenced by the interpretation of these provisions in determining the genuineness of the Will and granting probate.
Fact of the Case:
The petition sought grant of probate of the Will of late Sh. Inder Singh dated 10th March, 1995. The Petitioner, the elder brother of the testator, claimed that the subject land was bequeathed to him in the Will, while the legal heirs of the testator objected to the grant of probate.
Finding of the Court:
The court found that the Will was not fabricated and was executed by a sound-minded testator. It concluded that the suspicious circumstances raised by the objectors were not sufficient to disprove the Will, and granted the probate in favor of the Petitioner.
Issues: The main issues were whether the deceased executed a valid Will dated 10th March 1995 and whether the Will in question was valid in the eyes of the law.
Ratio Decidendi: The court's decision was based on the detailed background provided in the Will, the absence of forensic examination of the Will by the objectors, and the lack of sufficient evidence to prove that the Will was forged or fabricated.
Final Decision: The petition was allowed, and the probate of the Will dated 10th March, 1995 by Shri Inder Singh was granted in favor of the Petitioner. The objections were rejected.
Prathiba M. Singh, J.
The present petition under Section 276 of the Indian Succession Act, 1925 has been filed seeking grant of probate of the Will of late Sh. Inder Singh dated 10th March, 1995. The Petitioner is the elder brother of the testator. Notice was issued in the petition on 27th May, 2003. The three legal heirs of the testator have filed a common objection petition, objecting to the grant of probate. On 19th July 2006, the following issues were framed :
1. Whether the deceased executed a will dated 10th March 1995?
2. If issue no.1 is proved in the affirmative, whether the will in question is a valid will in the eyes of law?
2. On behalf of the Petitioner-Sh. Jai Singh, three witness statements were filed: that of Sh. Jai Singh himself, and the two attesting witnesses to the Will, namely Sh. Kamal Singh and Sh. Ankur Walia. Though the two attesting witnesses filed their affidavits by way of evidence, only Sh. Ankur Walia had appeared for cross examination. On behalf of the Respondents, the affidavits by way of evidence have been filed by Sh. Raj Kumar, the son of the testator's sister, and Sh. Vikas Dagar, one of the sons of the testator.
3. The submission of Mr. Vinaik, Advocate appearing for the Petitioner is that the Petitioner - Sh. Jai Singh had two brothers, Sh. Sher Singh and Sh. Inder Singh. The Petitioner was the eldest son of late Sh. Risal Singh. The testator - Sh. Inder Singh was suffering from Polio, and was handicapped. However, his elder brother, Sh. Jai Singh always emotionally supported him and even gave financial support to him. The family had a large number of moveable and immoveable properties and other assets. After the death of the father, the family entered into a family settlement, under which all the family members including the testator agreed to the division and the respective shares of all the heirs. However, one property i.e., land admeasuring 91 Kanals 4 marlas at Village Raisina, District Sohna bearing Khasra No. 99/22/2 (1-16), 102/1 (7-15), 2(8-0), 3(2-16), 6( 2-2), 7(4-13), 8(7-15), 9( 8-0), 10( 8-0), 11(8-0), 12( 6-18), 13( 8-0), 14 (8-0), 15(8-0), 26(1-2), 101/1/1(0-3), 10/2 (0-4) was not mentioned in the family settlement. The same is the subject matter of the Will in question. According to learned counsel for the Petitioner, this land was in fact purchased by Sh. Jai Singh in the name of Sh. Inder Singh, with the clear understanding that the said land would revert to Sh. Jai Singh. Thus, the same was not part of the family settlement and was bequeathed by the testator in favour of his elder brother.
4. It is submitted that the narration given in the Will supports these facts, and in fact while all the other assets of Sh. Inder Singh went to his legal heirs, this land was to vest in Sh. Jai Singh upon the death of Sh. Inder Singh. This is corroborated by the fact that the original title deeds of the subject land are in the possession of the Petitioner and the Petitioner also claims that he is physical possession of the land, which is being cultivated by him. Sh. Inder Singh unfortunately passed away in a road accident on 10th July, 1999. Mr. Vinaik states that upon the death of Sh. Inder Singh, when the Petitioner wished to seek mutation of this land, in view of the stand taken by the government authorities, the Petitioner decided to seek a probate for the Will. Thus, though the Will was executed in 1995 and Sh. Inder Singh passed away in 1999, since there was no objection whatsoever from any party, probate was not sought until the mutation proceedings were being delayed due to non-grant of probate. Under these circumstances, the Petitioner preferred the present probate petition. It is submitted that none of the legal heirs of the testator raised any objection to the grant of probate till November, 2005 though they were served with a copy of the petition in 2003 itself.
5. It is submitted that the Petitioner has discharged his onus by producing one of the attesting witnesses,
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