Delhi High Court
Smt. Swaran Lata vs State And Sh. P.P. Sharma on 18 August, 2005
Equivalent citations: AIR2006DELHI21, 123(2005)DLT264, 2005(84)DRJ135, AIR 2006 DELHI 21, 2006 (1) ALL LJ NOC 149, 2006 (1) AJHAR (NOC) 124 (DEL), 2006 A I H C 1046, (2005) 36 ALLINDCAS 514 (DEL), (2005) 4 RECCIVR 545, (2005) 123 DLT 264, (2005) 84 DRJ 135, (2006) 1 HINDULR 102
Author: Rekha Sharma
Bench: Rekha Sharma
JUDGMENT
Vijender Jain, J.
1. Appellant is aggrieved by grant of Letters of Administration on a copy of Will dated 15th June, 1984, Ex. PW1/2. Dr. Sidhu, learned counsel appearing for the appellant has challenged the impugned order on the following grounds:-
1.That the petition for grant of Letters of Administration did not bear proper verification in as much as it was not in consonance with the provisions of Section 281 of the Indian Succession Act, 1925 and, therefore, the same was liable to be rejected.
2. That the Will was a fabricated document and was brought into existence after the death of the testator Sudershan Lal.
3. That the evidence of the two attesting witnesses to the Will, namely, Pehlad and Kulbhushan was not worthy of reliance.
4. That the registration of the Will was not proved as per Section 61 of the Registration Act, 1908.
2. Needless to say that Mr. Makhija learned counsel appearing for the respondent refuted the submissions advanced by learned counsel for the appellant.
3. Taking the first objection first, we feel that before we deal with the same it is necessary to reproduce Section 281 of the Indian Succession Act, 1925 which deals with the verification. This is how it reads:-
281. Verification of petition for probate, by one witness to Will.- Where the application is for probate, the petition shall also be verified by at least one of the witnesses to the will (when procurable) in the manner or to the effect following, namely:-
” I (C.D), one of the witnesses to the last Will and testament of the testator mentioned in the above petition, declare that I was present and saw the said testator affix his signature (or mark) thereto (or that the said testator acknowledged the writing annexed to the above petition to be his last Will and testament in my presence).”
4. Since, as per counsel for the appellant, the verification contained in the petition for probate was not in accord with Section 281 of the Indian Succession Act, 1925, we also deem it necessary to reproduce that part of the petition which deals with the verification so as to ascertain whether it is in terms of Section 281 or not. The same runs as under:-
” I, Pehhald, s/o Bhikha, r/o-4, village Badarpur, New Delhi, one of the witnesses to the last will and testament of Sh. Sudershan Lal, the testator mentioned in this petition bequeath that I was present and saw the testator affixing his signature.”
5. On a comparison of the format of the verification as given in Section 281 of the Indian Succession Act and the verification as contained in the petition, we find that the only discrepancy which appears in the verification is that instead of the word “declare” in the format, the word “bequeath” has been used by the petitioner. We are not impressed by the discrepancy brought out by learned counsel for the appellant for we feel that even though instead of the word “declare” the word “bequeath” has been used in the verification part of the petition it still conveyed the same meaning, which was to the effect, that the witness was present and saw the testator affixing his signatures.
6. The other objection that the Will was a fabricated document and was brought into existence after the death of Sudershan Lal was sought to be substantiated by the fact that when the petition for Probate was initially filed on 1st December, 1997 neither of the two attesting witnesses had signed the same and it was therefore returned by the Registry with that objection. Thereafter the petition was refiled on 26th September, 1988 after a period of nearly nine months. This intervening period, it was submitted, was utilised by the petitioner to persuade Pehlad to sign the petition as an attesting witness and it was only thereafter that the petition was refiled. It was argued that had the Will been in existence there was no reason as to why it was initially filed without either of the attesting witnesses having signed the same and even when it was ultimately got signed by one of them the other who was the real brother of the testator, namely, Kulbhushan, still did not do so. These facts, it was further argued, cast a doubt on the genuineness of the Will.
7. We have minutely gone through the record of the original suit. A perusal of the same reveals that when the petition was initially filed on 1.12.1997 the Registry had put two objections and those objections were that the petition was not accompanied by the original Will and the original death certificate of Sudershan Lal. The petition was returned with these two objections. We do not find any objection as to the petition having not been signed by any of the attesting witnesses. In this view of the matter the whole edifice of the submission raised by counsel for the appellant falls to the ground.
8. It was next contended that the attesting witness Pehlad had died before the evidence in the case could be recorded. In view of his death he obviously could not be examined as a witness. What therefore was done by the petitioner was that he moved an application to place on record certified copy of the deposition of Pehlad recorded in a civil proceeding in the court of Smt. Sunita Rani, Civil Judge, Delhi. In the said deposition Pehlad had stated that the Will in question was executed by Sudershan Lal and that he had signed the said Will as an attesting witness. He had also stated that the brother of Sudershan Lal too had signed as an attesting witness. The learned Single Judge in the impugned order has held that since Pehlad was dead his statement made on the issue of the Will in a judicial proceeding would be an admissible evidence and would be of corroborative value. Dr. Sidhu learned counsel for the appellant drew our attention to Section 33 of the Indian Evidence Act, 1872 and on the strength of the same contended that evidence of a witness who was dead, given in a judicial proceeding could be taken in a subsequent judicial proceeding provided the proceedings were between the same parties or their representatives in interest. It was pointed out that proceedings in which Pehlad had given evidence before his death and the proceedings of the Probate petition were not between the same parties or their representatives in interest, and as such, his evidence given in the earlier judicial proceedings could not be taken on record. Although we find merit in the submission of Dr. Sidhu but on this basis alone the impugned order can not be set aside. The reason is that besides taking on record the evidence of Pehlad the learned Single Judge also recorded the evidence of the other attesting witness Kulbhushan. We shall therefore place reliance on the evidence of Kulbhushan and ignore that of Pehlad. Learned counsel for the appellant did argue that the evidence of Kulbhushan was otherwise not worthy of reliance but we do not find merit in the submission. It was contended by Dr. Sidhu that the testimony of Kulbushan who appeared as PW2 could not have been relied upon as his sisters had filed another suit claiming share in the joint family property in which Kulbhushan had filed written statement (Ex.R-28) and had signed the same. In para 1 of the reply on merits in the said written statement it was averred by Kulbhushan that Sudershan Lal died without leaving a Will. However, when he appeared as a witness in the probate proceedings he deposed that Sudershan Lal died leaving a Will. This discrepancy was explained by the respondents by stating that what was averred in para 1 of the written statement in the suit filed by the sisters of Kulbushan was a typographical mistake. Learned counsel for the respondent also referred to some other paragraphs of the same written statement, particularly, on page 38 of the paper book where reference is made to the fact that Sudershan Lal bequeathed the aforesaid property along with certain other properties to his nephew Prem Prakash s/o defendant No. 2 on 15th June, 1984. We feel that if the written statement is read as a whole, the only inference that can be drawn is that Sudershan Lal died leaving a Will behind, and that, what was stated in paragraph 1 of the written statement could not but be taken as a typographical error. In this view of the matter, we find no good reason for not relying upon the testimony of Kulbhushan who was the other attesting witness to the Will besides Pehlad.
9. Lastly, it was contended that the registration of the Will had not been proved by the respondent as required under Section 61 of the Registration Act, 1908. Elaborate arguments were addressed regarding the form, the entry to be made in respect of the will in the office of the Sub Registrar and in this regard reliance was placed on Ram Saran Lall and Ors. v. Mst. Domini Kuer and Ors. , Hiralal Agrawal etc., v. Rampadarath Singh and Ors. etc. , and Mt. Domini Kuer v. Ramsaran Lal and Ors. , . Reference was also made to Order 13 Rule 1, Rule 2 (now deleted from the CPC) and Rule 3 and Section 22 and Section 33 of the Indian Evidence Act, 1872 in this regard.
10. We do not dispute the proposition that a Will if registered has to be registered in the manner prescribed under Section 61 of the Registration Act 1908. However so far as this case is concerned the onus to prove the issue whether the registration of the Will was in accordance with law was laid on the respondent. It was therefore for the appellant to summon the record from the office of the Sub Registrar. He having not done so and once the certified copy of the registered Will was placed on record, the effect of document being in existence cannot be disputed. Even otherwise assuming the Will was found to be not registered as per law, it would have made no difference to the outcome of the case, as in Delhi, Letters of Administration can be granted even without registration of the Will. Nothing therefore turns either on the argument raised by counsel for the appellant or on the authorities cited by him.
11. For the reasons stated above, we find no infirmity in the order of the learned Single Judge. Appeal is dismissed with costs which is assessed at Rs. 5000/-.