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Judgment
VIKAS MAHAJAN, J. (ORAL)
The present petition has been filed by the petitioner under Section 276 of the Indian Succession Act, 1925 seeking grant of probate in respect of the Will dated 07.06.1969 of Late Radha Krishna Puri which was registered on 27.03.1973.
The petitioner is stated to be son as well as executor of the Will, besides being a beneficiary under the same.
The subject matter of the Will is only one immovable property bearing No. H-20, Green Park Extension, New Delhi-110016 which is stated to be purchased by the testator out of his own funds.
The testator passed away on 02.04.1971 and was survived by the following Class-1 legal heirs:
| S. No. | Name | Relation with Testator | Remarks |
|---|---|---|---|
| 1. | Leelavati Puri | Wife | Expired on 05.09.2002. |
| 2. | Sheila Laroia (Respondent No. 2) | Daughter | Expired on 02.06.2023 during the pendency of proceedings, leaving behind the following legal heirs: a) Mr. Rakesh Laroia (Son). b) Mrs. Rachna Mehra (Daughter) c) Mrs. Rashmi Malhotra (Daughter) |
| 3. | Prem Ranjan (Respondent No. 3) | Daughter | Alive |
| 4. | Indu Sareen | Daughter | Expired on 21.02.2005, leaving her husband, Mr. Narottam Lal Sareen, who also expired on 16.08.2006. The couple remained issueless. |
| 5. | Devinder Krishan Puri (Petitioner) | Son | Alive |
It is the pleaded case of the petitioner that the testator executed the Will dated 07.06.1969 in a sound disposing mind, proper health and without any pressure or undue influence.
The notice in the Test. Case was issued on 16.11.2021 and direction was given to publish the citation in the newspaper “Statesman”. The SDM concerned was also directed to file a valuation report.
The aforesaid direction was complied with and the necessary citation came to be published in the English Edition of the said newspaper on 15.12.2021. The valuation report dated 17.08.2022 was also filed by the SDM (Hauz Khas), whereby the value of the property has been assessed at Rs.8,56,73,472/-.
The State is respondent no. 1 in the present petition whereas the two daughters of the testator were arrayed as respondent nos.2 and 3, who were alive at that time.
The respondent no. 2 was served with a notice in the present petition. However, she did not come forward to contest the petition. Therefore, her right to file reply/objection was closed by this Court vide order dated 10.11.2022. Subsequently, respondent no. 2 passed away on 02.06.2023 and her legal heirs were also impleaded in the present petition. Even the legal heirs of respondent no. 2 did not file any reply/objection and their right was also closed vide order dated 17.11.2023.
The respondent no. 3 filed a reply stating that she has no objection in case the probate with regard to the Will in question is granted.
The following issues were framed by this Court vide order dated 10.01.2023:
i)Whether the Will dated June 07, 1969, registered subsequently on March 27, 1973, propounded to be the only Will of deceased Late Mr. Radha Krishna Puri, is legally valid?
ii) Whether the petitioner is entitled to the grant of Probate as prayed for in this petition?
Clearly, the grant of probate is dependent on the findings in the issue no. (i).
To be noted that the petitioner also filed additional documents after obtaining the leave of this Court which was granted vide order dated 06.02.2023. Thereafter, the evidence by way of affidavit was filed by the petitioner. The petitioner examined himself as PW-1 on 04.05.2023 and tendered his affidavit in evidence, which has been exhibited as Ex. PW-1/A.
Petitioner’s witnesses also proved the following documents:
Copy of certificate of payment of compensation dated 25.07.1956 as Ex.PW1/2.
Copy of identity card of Mr. R.K. Puri issued by Ministry of Rehabilitation as Ex.PW1/3.
System generated copy of death certificate of testator as Ex.PW1/4.
Copy of certificate issued by Dr. S.K. Dutt, MBBS dated 02.04.1972 as Ex.PW1/5.
Copy of lease-deed dated 19.01.1969, which is mentioned as Ex.PW1/6 (Mark-A).
Original Will dated 07.06.1969 exhibited as Ex.P-2/A.
Photocopy of registered Will from the record maintained by Department of Delhi Archives of Govt. of NCT of Delhi exhibited as Ex.PW3/A.
Copy of Death certificate of Mr. Braham Dayal Mangal, attesting witness exhibited as Ex. PW4/3.
Death Certificate of Mr. D.K. Laroria, attesting witness, as Ex.P-9.
Registered Relinquishment Deed dated 23.09.2021 exhibited as Ex.P-11.
As both the attesting witnesses of the Will had pre-deceased the testator, therefore, the Will was proved by the petitioner by examining following witnesses:
PW2 - Mrs. Updesh Bhambri who has proved and identified the signatures of the Testator.
PW3 - Ajay Singh, Assistant Archivist, Department of Delhi Archives, Govt. of NCT of Delhi was examined to bring on record the copy of the registered Will which was tallied by this Court.
PW4 - Neha Puri was examined to prove the death certificate of attesting witness, namely – Shri B.D. Mangal.
RW1 - Respondent no. 3, namely, Mrs. Prem Ranjan examined herself as RW1 and she also proved the signatures of the testator i.e. her father on the Will as well as the signatures of another attesting witness, namely – Mr. D.K. Laroria, brother-in-law of respondent no. 3/RW1.
The learned counsel appearing on behalf of the petitioner submits that the present petition for grant of probate is un-contested one. Further, the Will is more than 30 years old and the property which is subject matter of the Will is in possession of the petitioner who is the Executor, as well as, the beneficiary under the Will. Therefore, there is no legal impediment for the grant of probate.
The learned counsel also urges that while granting probate with regard to the Will in question, the exemption may also be granted to the petitioner from furnishing an Administration Bond as well as Surety Bond as the present Will is an uncontested Will and the subject matter of the Will is a residential house which is occupied by the petitioner. In support of her submission, she places reliance on the decision of Sanjay Suri vs State And Ors. 2003 SCC OnLine Del 966.
I have heard the learned counsel for the petitioner and have perused the record.
In terms of the mandate of Clause (c) of Section 63 Indian Succession Act, 1925 [in short ‘the Act’], the Will must be attested by two or more witnesses, each of whom should have seen the testator sign or affix his mark to the Will and the Will must be signed by the witnesses in the presence of the testator, but it is not necessary that more than one witness should be present at the same time.
Likewise, provisions of Section 68 of the Indian Evidence Act also provide the mode of proof of the Will and requires that at least one attesting witness to the Will must be examined. However, where no such attesting witness can be found or is unavailable, the method of proving the Will as enshrined in Section 69 of the Evidence Act has to be resorted to. The Section 69 of the Evidence Act reads as under:
“69.Proof where no attesting witness found.—If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.”
In Babu Singh vs. Ram Sahai, (2008) 14 SCC 754, the Hon’ble Supreme Court explained as to when Section 69 of the Evidence Act would apply and who could prove the Will in case the witnesses are dead or cannot be traced. The relevant part of the decision reads thus:
“17.It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the will may be proved in the manner indicated in Section 69 i.e. by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others.
18.Whereas, however, a will ordinarily must be proved keeping in view the provisions of Section 63 of the Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved.”
(emphasis supplied)
In the present case, undisputedly, the Will is attested by two witnesses namely, Sh. B.D. Mangal and Mr. D.K. Laroria. However, both the attesting witnesses had pre-deceased the testator of the Will, therefore, in the present case the Will was proved in the manner indicated in section 69 of the Evidence Act.
Ms. Neha Puri/PW-4 proved the death certificate, Ex.P-4/3, of attesting witness Late B.D. Mangal which had been downloaded from the official website of MCD. She also proved the certificate under Section 65B of the Indian Evidence Act as Ex.P-4/2. Likewise, the death certificate of attesting witness Mr. D.K. Laroria was proved by the petitioner/PW-1 which is exhibited as Ex.P-1/5. He also proved the death certificate of the testator as Ex.P-1/4.
The petitioner/PW-1 identified the signatures of the testator (his father i.e. Sh. Radha Krishna Puri) at Points ‘A’ and ‘A1’ on the Original Will, Ex.P-2/A. He also identified the signatures of two witnesses namely, late Mr. D.K. Laroria, who was the husband of his sister Ms. Sheila Laroria/respondent no.2, as well as, of Late B.D. Mangal, who was colleague of his father and working with him at Northern Railways, Baroda House.
Ms. Updesh Bhambri/PW-2, who is the sister of petitioner’s wife, deposed that the testator had shown the propounded Will to her and she identifies the signatures of the testator on the said Will. The relevant extract of her statement reads as under:
“I state that I identify this document being shown to me as the Will of Mr. Radha Krishna Puri who was the father in law of my sister. Late Mrs. Kamlesh Puri. I was on close and cordial terms with my sister's father in law. I was once shown the said Will when 1 visited my sister's marital home at H-20 Green Park Extension, New Delhi when I was young. I identify the signatures of Late Mr. Radha Krishna Puri already marked at point A and A1 on the said Will dated 07.06.1969.”
The respondent no.3, who examined herself as RW-1 also identified the signatures of the testator on the Will, Ex.P-2/A, as well as, attesting witness late D.K. Laroria, who was the brother-in-law of the respondent no.3. The relevant extract of her statement reads as under:
“I identify signature of testator i.e. my father at points 'A' and 'A1' and signatures of attesting witness namely Mr. D.K. Laroia i.e. my brother in law at points 'B' and 'B1',on both pages of the Will EX.P-2A.
I have already relinquished my share in favour of the petitioner by way of registered relinquishment deed dated 23.09.2021, which is already exhibited as Ex. P-11”
The testimonies of the aforesaid witnesses have not been subjected to any cross examination. In view of the unchallenged testimonies of PW1, PW2, as well as RW1, it is proved in terms of section 69 of the Evidence Act that Will, Ex.P-2/A, was signed and executed by the father of the petitioner Late Radha Krishna Puri and the same was also signed by the late B.D. Mangal and late D.K. Laroria as attesting witnesses. The signatures of the testator on the Will in question have not been disputed by respondent no.3. Rather, the respondent no.3 in her reply has given her “No objection” to grant of probate in favour of the petitioner.
The respondent no. 2a, 2b, 2c are the legal heirs of late Sheila Laroia, the second sister of the petitioner-Devinder Krishna Puri, who have failed to appear despite service. As noted above, the publication of citation was carried out in the Newspapers and no third person raised any objection.
Thus, it stands proved that the Will dated 07.06.1969 (Ex. P-2/A) was executed by the father of the petitioner Late Radha Krishna Puri and the same is the last and validly executed Will of the testator.
A perusal of the Will dated 07.06.1969 (Ex. P-2/A) shows that the petitioner is the sole beneficiary and Executor named in the Will, therefore, he is entitled to the probate of the Will.
However, the petitioner has sought exemption from filing an administration and surety bond on the ground that he is the son of the testator and the sole beneficiary under the Will and that the probate petition was uncontested one.
Section 291 of the Act provides that the District Judge may demand from the person to whom probate is granted, a bond with or without sureties. This Court in Sanjay Suri (supra) observed that Section 291 of the Act has to be interpreted so as not being applicable to a case of a sole beneficiary and legal heir, under a duly proved Will insofar as requirement of furnishing an administration bond is concerned.
Likewise, in Arvind Nanda vs. State (2020:DHC:1457) the Court had considered the decision of ld. Divisional Bench of this Court in Rajesh Kumar Sharma and Ors. vs. Estate of late Raj Pal Sharma & Ors., [W.P.(C) 9108/2011, decided on 02.01.2012] where it was held that the imposition of a condition for furnishing surety is in the discretion of the Court and the same is not mandatory. Para 10 of Arvind Nanda (supra) reads as under:
“10.The settled case law, therefore, clearly lays down the following principles:-
(1)The imposition of a condition for furnishing an indemnity/security is at the discretion of the Court.
(2)Whenever the Court is of the opinion that a condition is required to be imposed due to any debts and the fact that there is a possibility of other claimants raising claims, the condition may be imposed.
(3)In every case involving the grant of a succession certificate, a mechanical approach of imposing a condition for furnishing the surety/security and insisting on the indemnity bond is not required.
(4)When an exemption from filing any surety is sought, the Court has to consider the entire conspectus and exercise its discretion depending on the facts of each case, in accordance with law.
(5)As held by the ld. Division Bench of this Court in Rajesh Kumar Sharma (supra), the imposition of a condition is not mandatory.”
In view of the above, since the petitioner is the sole beneficiary under the Will, which also remained uncontested, no useful purpose would be served by insisting upon the furnishing of administration or surety bond.
Accordingly, the instant petition is allowed. Subject to the petitioners filing the requisite court fee, the Registry is directed to grant probate along with a copy of the Will annexed in favour of the petitioners. The petitioner is exempted from executing or submitting any administration or surety bond.
With the aforesaid directions, the petition stands disposed of.