ASHA SIKKA v. STATE OF DELHI — 1996 DIGILAW 500 (DEL)

K. RAMAMOORTHY ( 1 ) THE probate case had a chequered carrier. The facts are very simple and they may be stated briefly. Dr. Nirmal Prakash was owning an immovable property, other shops and other bank deposits. His wife was Smt. Sukh Nandan. They had a daughter Smt. Asha Sikka and a son Mr. Ashok Kumar Prakash. ( 2 ) ON 4. 10. 1978 Dr. Nirmal Prakash executed a Will, with reference to his house No. D-907, New- Friends Colony bequeathing the same to the daughter Smt. Asha Sikka and other properties to his wife Smt. Sukh Nandan. After the marriage of the son, perhaps the son had changed and, therefore, both Dr. Nirmal Prakash and Smt. Sukh Nandan executed separate Wills on 20th of February 1980. Dr. Nirmal Prakash in his Will in supersession of all the earlier Will gave life interest to his wife in the immovable property and the vested remainder to the daughter. He devised the fixed deposit to his wife and other deposits to his daughter. The wife Smt. Sukh Nandan was appointed as the executrix. On the same date. as I had mentioned earlier, Smt. Sukh Nandan executed a Will bequeathing whatever she had to the daughter. The son was not given anything by the parents. On 3. 12. 1986 Dr. Nirmal Prakash died. On 25. 2. 1987 Smt. Sukh Nandan in her capacity as the executrix applied for probate of me Will other husband Dr. Nirmal Prakash under Section 222 of the Indian Succession Act, 1925. The son Mr. Ashok Kumar Prakash did not file any objections to the grant of probate. During the pendency of the probate case, Smt. Sukh Nandan died on 14. 5. 1988. ( 3 ) THE daughter Smt. Asha Sikka filed I. A. 6069/88 in the above case to continue the petition filed by the mother and for the grant of Letters of Administration. This Court on 20th of March 1991 passed an order permitting the substitution of Smt. Asha Sikka as petitioner and also permitting her to continue with the petition. It was also ordered that Smt. Asha Sikka to be entitled to the Letters of Administration. This Court on 20th of March 1991 passed an order permitting the substitution of Smt. Asha Sikka as petitioner and also permitting her to continue with the petition. It was also ordered that Smt. Asha Sikka to be entitled to the Letters of Administration. The relevant portion of the order reads as follows:- "i. A. 6069/88 This is an application under Order 22 Rule 3 read with Order 1 Rule 10 C. P. C. praying that me name of the applicant be substituted in place of the petitioner. Smt. Sukh Nandan has filed this petition for probate. As the executrix Smt. Sukh Nandan died on 14. 5. 1988, applicant Smt. Asha Sikka, daughter of the executrix has filed this application that she may be substituted in place of the petitioner. The application is opposed on the ground that the right to sue does not survive. In my opinion, Smt. Asha Kakkar can continue the proceedings not obtaining the probate but for letters of administration. She is one of the beneficiaries to the Will. Executrix has died. Any of the beneficiaries can apply for letters of administration. In order to avoid the multiplicity of proceedings, I allow this application with the observations that the applicant be substituted as the petitioner and she will be entitled for grant of Letter of Administration (with copy of the Will annexed ). The amended petition be filed within 4 weeks. I. A. is disposed of. " ( 4 ) ON 28. 8. 1991 Smt. Asha Sikka filed the amended petition praying for the grant of Letters of Administration with reference to the estate of both the parents. ( 5 ) ON 6. 7,1992 the son Mr. Ashok Kumar Prakash filed a reply to the amended petition. His case is that Dr. Ninnal Prakash was not in a sound and disposing state of mind and me Will was executed by the father out of pressure. The petitioner took advantage of his absence in Delhi as he was working in Calcutta. The imputations against him in the Will of Dr. Nirmal Prakash and that of the mother are not correct and they arc blatant lies. The petitioner took advantage of his absence in Delhi as he was working in Calcutta. The imputations against him in the Will of Dr. Nirmal Prakash and that of the mother are not correct and they arc blatant lies. In paragraph 6 of the reply he would state "it is correctly stated that no objections were filed by the respondent mainly because the petitioner and his mother had assured him that the matter had been withdrawn and mat mere being nothing serious he should not worn". In paragraphs 9 and 10 it is stated "if at all the signatures on the alleged Will are his, on a blank sheet of paper and the subject matter was typed without his knowledge and not permitted to read also. " Ultimately, he denied the claim of the petitioner. ( 6 ) SMT. Asha Sikka filed a reply to the objections filed by her brother. It is not necessary to relate the averments therein. ( 7 ) THE point that arises for consideration was whether the petitioner has proved the execution of the Will dated 28. 2. 1980 by Dr. Nirmal Prakash and execution of the Will by late Smt. Sukh Nandan in accordance with law. ( 8 ) THE petitioner examined three witnesses including herself. ( 9 ) P. W. 1 is Mr. Deepak Shroff, who is one of the attesting witnesses of the Will of Dr. Nirmal Prakash. The will of Dr. Nirmal Prakash is marked as Ex. P. 1. The following answer to question No. 3 would show that the witness has seen the testator signing and he had been the attesting witness :- "q. 3. Kindly see Will dated 20th February 1980 at page 3 and state who it is signed and witnessed by? Ans. (Original envelope is opened. Wills of Dr. Ninnal Prakash and Smt. Sukhnandan, Letters dated 27. 7. 1976, 27. 9. 1976 and 16. 12. 1986. Six page draft of the Will in the handwriting of Dr. Nirmal Prakash are taken out ). I have seen Will Ex. P. l. It bears the signature of Dr. Ninnal Prakash on internal pages 2 and 3. These are already marked as "a". The signatures on page 2 and 3 on the upper part were not placed in my presence but had been placed earlier by Dr. Nirmal Prakash who acknowledged the same as his signatures. I have seen Will Ex. P. l. It bears the signature of Dr. Ninnal Prakash on internal pages 2 and 3. These are already marked as "a". The signatures on page 2 and 3 on the upper part were not placed in my presence but had been placed earlier by Dr. Nirmal Prakash who acknowledged the same as his signatures. When I reached there, the Will was already bearing the signature of Kamaljit as a witness at point B on page 3. Before appending my signature as an attesting witness, I asked Dr. Nirmal Prakash to sign the Will once again in my presence which he did. These signatures were earlier marked also as "a" on the bottom part of page 3 and now marked as A-I. I appended my signatures as an attesting witness and wrote out my fathers name and address. "he was also the attesting witness to the Will of Smt. Sukh Nandan The following question and answer will show that he was also an attesting witness :- "q. 8. Kindly see Will dated 20. 2. 1980 of Smt. Sukhnandan and state who it was executed by and whose signatures it bears. Ans. When I was asked to attest this Will, it was already signed by her at point mark A-2 which was acknowledged as her signatures. I. however, asked her to sign afresh in my presence which she did and these are at mark A-3. The Will is Ex. P. 7. I placed my signatures at point A-4 in token of attestation. The attestation of witness No. 1 was already on the Will when I made my attestation and was not done in my presence. "mr. Uchit Bhandari. learned counsel for the objector, cross examined this witness. I have not been able to find anything useful that has been elicited which would warrant any inference against the acceptance of the evidence of P. W. l. ( 10 ) P. W. 2 is Smt. Asha Sikka. the petitioner She has stated mat the signatures in the two Wills are that of the father and the mother. Ex P. 1 and P. 7 respectively. She was cross examined by Mr. Uchit Bhandari on behalf of the brother and nothing has been elicited in her cross examination on the basis of which it could be said that there were any circumstance suspicious about the execution of the Wills. Ex P. 1 and P. 7 respectively. She was cross examined by Mr. Uchit Bhandari on behalf of the brother and nothing has been elicited in her cross examination on the basis of which it could be said that there were any circumstance suspicious about the execution of the Wills. ( 11 ) P. W. 3 is Mr. Kamal|it Singh. He is related to Dr Nirmal Prakash. Dr. Nirmal Prakash was the paternal aunt s husband of P. W. 3. In other words. Smt. Sukhnandan is the sister of the father of P. W. 3. He is also an attesting witness to Ex. P. 1 and also Ex. P. 7. He has given evidence giving the true facts and I don t find any reason to disbelive the evidence of P. W. 3. No effective cross examination was made by the learned counsel for the brother. Therefore. I have no hesitation in accepting the evidence of P. W. 1 and P. W. 3, the attesting witnesses. ( 12 ) THE learned senior counsel Mr. Arun Mohan on behalf of the petitioner contended that the petitioner has proved the two Wills in accordance with Section 63 of the Indian Succession Act read with Section 68 of the Evidence Act and. therefore, the petitioner is entitled to the Letters of Administration. ( 13 ) MR. Uchit Bhandari. learned counsel for die brother did not advance any arguments challenging the evidence of P. W. 1 and P. W. 3 and he did not point out anything in the evidence of P. W. 1 and P. W. 3 which could warrant an inference that they are not speaking the truth and they were not the attesting witnesses. His only point was that no issues were framed in this case and without framing of issues evidence had been recorded and. therefore, no decision should be arrived at without framing issues and if issues had been framed the brother would have examined himself. He also submitted that in probate proceedings procedure prescribed under the Code of Civil Procedure should be followed and because the procedure was not followed the brother was very much prejudiced and. therefore, there should be retrial after the framing of issues. ( 14 ) I am afraid, the learned counsel is putting forth an extreme contention. The matter has been pending for nearly 9 years. therefore, there should be retrial after the framing of issues. ( 14 ) I am afraid, the learned counsel is putting forth an extreme contention. The matter has been pending for nearly 9 years. He did not filed any objections to the probate case filed by his mother. He had filed objections to the amended petition filed by his sister. When the matter was taken up for trial, the learned counsel prayed for adjournments for bringing the brother for participating in the trial. Adjournments were granted and the learned counsel represented that the brother was not in a position to come and give evidence and, therefore, the matter was posted for arguments. The learned counsel relied upon the decision of the Supreme Court in AIR 1956 S. C. 231 and the passage at page 235. ( 15 ) I am not able to see anything relevant in the judgment in support of the submissions made by the learned counsel for the brother of the petitioner. In cases like this the only point or issue is whether there is evidence on behalf of the propounder of the Wills in accordance of Section 63 of the Succession Act and 68 of the Evidence Act. No other issue arises in this case in the light of the pleadings. Therefore, I have no hesitation in rejecting the arguments on behalf of the learned counsel for the objector. Consequently, 1 find that the petitioner Smt. Asha Sikka has proved the Wills executed by late Dr. Nirmal Prakash and Smt. Sukh Nandan on 20. 2. 1980 and she is entitled to the grant of Letters of Administration, as prayed for. Smt. Asha Sikka need not execute any security for the issuance of Letters of Administration by the office. There shall be no order as to costs.