CHANDER BHAN DASS CHELA MAHANT v. STATE OF DELHI — 1997 DIGILAW 166 (DEL)

Anil Dev Singh ( 1 ) THIS is an application under Section 276 of the Indiansuccession Act, 1925, for grant of probate in respect of Will dated 15/12/1971executed by Mahant Manohar Dass. The facts giving rise to the application are asunder. ( 2 ) MAHANT Manohar Dass died at Delhi, on 14/01/1978. During the lifetime of Mahant Manohar Dass the petitioner was taken as a Chela by him. By meansof a Will dated 15/12/1971, he appointed the petitioner who has filed theinstant application as an executor of the Will. To the instant application theobjections were filed by Ram Nath Dass who also claims to be the Chela of Mahantmanohar Dass, and also by Amar Singh, Karan Singh, 0m Prakash, Narender andparam Singh. The application is being contested by Ram Nath Dass. In the objectionsof Ram Nath Dass dated 7/08/1978 it is stated that Mahant Manohar Dass hadexecuted a Will in favour of the objector on 29/05/1945 and thereafter no other Willhad been executed by him in favour of any person. It is claimed that he is the onlyperson who is entitled to the estate of Mahant Manohar Dass. By order dated 1/01/1979 the following issues were framed : 1. Whether the Will dated 15/12/1971, is the last and valid Willof late Shri Manohar Dass? 2. Relief. ( 3 ) SUBSEQUENTLY, on Septembers, 1980, an additional issue was framed havingregards to the objections filed by 0m Prakash and Narender. The additional issuewhich was raised is as follows : "whether Sh. Manohar Dass made the Will dated 19/06/1977 and is it inaccordance with law? (Onus of proof on the objectors)". ( 4 ) THE petitioner, to prove the Will dated 15/12/1971, produced 0mprakash Gupta and Mahant Girija Nandan Goswami, both of whom were theattesting witnesses to the Will, and Subedar Singh and Bhagwan Dass, Clerk of theoffice of the Sub-Registrar, New Delhi. The petitioner also appeared as his ownwitness. ( 5 ) THE objectors Amar Singh and Karan Singh appeared as their own witnesses. Ram Nath Dass, objector, also appeared as OW-3. Shri I. C. Tyagi, OW-4, was alsoproduced by Ram Nath Dass in support of his objections. ( 6 ) AT the outset it may be stated that 0m Prakash, Narender and Param Singhdid not produce any evidence in support of their objections. In the objections, theabovesaid objectors had set up a Will dated 19/06/1977. Shri I. C. Tyagi, OW-4, was alsoproduced by Ram Nath Dass in support of his objections. ( 6 ) AT the outset it may be stated that 0m Prakash, Narender and Param Singhdid not produce any evidence in support of their objections. In the objections, theabovesaid objectors had set up a Will dated 19/06/1977. This Will was anunregistered one and was not proved by them. As such the additional issue framedon 3/09/1980, regarding the alleged Will dated 19/06/1977 is decidedagainst the said objectors. ( 7 ) FOR the determination of Issue No. 1 reference needs to be made to thestatenments of Om Prakash Gupta and Mahant Girija Nandan Goswami, 0mprakash Gupta, Public Witness PW-1, deposed that he knew Mahant Manohar Dass, that heexecuted the Will Ext. P-l dated 15/12/1971; that the Mahant put hissignatures as well as thumb impressions at points a and a-l on all the pages ofthe Will in his presence (0m Prakash Gupta) as also in the presence of Deva Dass,girija Nand and Prem Dass; that Deva Dass, Giraja Nand and Prem Dass also puttheir signatures on the Will as attesting witnesses in the presence of the deceasedtestator at points C", d and e ; that at the time of execution of the Will the testatorwas possessed of sound disposing mind and he knew what he was doing; that thewill was typed at the instance of and according to the directions of the deceased athis own house; that after the Will was typed its contents were read out by the deedwriter to the deceased and thereafter the deceased himself read the same and thenput his signatures and thumb impression on the Will. The objectors cross-examinedthe witness mainly on the question as to the right of the testator to execute the Willin respect of the properties mentioned in the Will. The cross-examination was notdirected towards the authenticity of the Will or the question as to whether thedeceased Mahant Manohar Dass had actually signed the Will or not. The witnesswas also not cross-examined in regard to the question whether or not he had signedthe Will in the presence of the deceased. The other attesting witness to the Will,namely, Mahant Girija Nandan Goswami stated in his examination-in-chief thatext. The witnesswas also not cross-examined in regard to the question whether or not he had signedthe Will in the presence of the deceased. The other attesting witness to the Will,namely, Mahant Girija Nandan Goswami stated in his examination-in-chief thatext. P-l was the Will executed by Mahant Manohar Dass on 15/12/1971; thatat the time of execution of the Will the testator was in sound state of mind, thatmahant Manohar Dass had read the Will and after the Will was signed by thetestator he and 0m Prakash had signed the Will as witnesses. The cross-examinationby the objectors did not succeed in bringing out some. "act which could have castdoubt with regard to the execution of the Will by the testator. Subedar Singh, Public Witness PW3, deposed to the fact that he had accompanied Mahant Manohar Dass to the officeof the Sub-Registrar, New Delhi, and before the Sub-Registrar he (Subedar Singh)had signed the Will at the place marked A2. Insofar as the cross-examination of thiswitness is concerned, I find that it has no relevance to the question of authenticityof the Will. Bhagwan Dass, Public Witness PW-4, a clerk in the office of the Sub-Registrar was alsoexamined and he testified to the fact that the original Will Ext. P-l contained thestamp of the office of the Sub-Registrar. New Delhi, that the Will was registered on 18/12/1971 at Serial No. 737, Additional Volume No. 3 Bahi Khand No. 38at pages 70 to 72 and that copy of the Will on record was the exact copy of the originalwill. ( 8 ) THE petitioner who appeared as his own witness proved the factum of deathof Mahant Manohar Dass and the execution of the Will in his favour. ( 9 ) INSOFAR as Amar Singh (OW-1) is concerned, he deposed to the fact that heknew Mahant Manohar Dass, that property adjoining the Math had been given tothe deceased by the villagers, who were the owners of the same and that Mahantmanohar Dass was only managing the said property. It would be worthwhile tomention that the objector did not depose anything with regard to the execution ofthe Will dated 15/12/1971. ( 10 ) OW-3 Ram Nath Dass proved Ext. RW1/l, an earlier Will dated 23/12/1944. He further stated that he (Ram Nath Dass) was inducted as desciple ofmahant Manohar Dass in the year 1944. It would be worthwhile tomention that the objector did not depose anything with regard to the execution ofthe Will dated 15/12/1971. ( 10 ) OW-3 Ram Nath Dass proved Ext. RW1/l, an earlier Will dated 23/12/1944. He further stated that he (Ram Nath Dass) was inducted as desciple ofmahant Manohar Dass in the year 1944. The objector also claimed that Mahantmanohar Dass had no right to make the Will as the property devolves upon thedesciple and in case of there being no desciple it devolves upon the Acharya Gaddibidhupur in Muzaffarnagar. He also stated that Mahant Manohar Dass was nothavinggood health in December, 1971. As would be seen, except referring to the factthat Mahant Manohar Dass had no right to make the Will, this witness has notattacked the Will dated 15/12/1971. He has not even stated that the Will wasa forged one or it had not been executed by Mahant Manohar Dass. ( 11 ) STATEMENT of OW-1 Shri I. C. Tyagi also does not throw any worthwhilechallenge to the Will dated 15/12/1971. The only relevant thing which thiswitness stated was that Mahant Manohar Dass was ailing in December, 1971. However, this does not mean that Mahant Manohar Dass to have sound disposingmind when the Will was executed. The objectors have not produced any medicalevidence to show that the mental faculties of Manohar Dass had been affected at thetime of executing the Will and he could not understand the implications of hisaction. ( 12 ) LEARNED Counsel appearing for objector No. 3 stated that Mahant Manohardass had executed a Will Ext. RW1 /1 dated 23/12/1944 in favour of his clientand that Will was the only Will which can be relied upon. For this submission hepointed out that in the Will dated 23/12/1944 the testator had taken care tomention that in the event of the death of the legatees namely Harbans Dass and Ramnath Dass, the property will go to Mahant Bidhupur of who shall be the owner ofthe properties of Delhi Gaddi have considered the submission of the learnedcounsel but regret my inability to agree to the same. The mere fact that thisparticular provision was not made in the Will dated 15/12/1971 cannot castany doubt on the authenticity of the Will dated 15/12/1971. The Will dated 23/12/1944, being the earlier Will would cease to be operative. The mere fact that thisparticular provision was not made in the Will dated 15/12/1971 cannot castany doubt on the authenticity of the Will dated 15/12/1971. The Will dated 23/12/1944, being the earlier Will would cease to be operative. The only Willwhich is operative and which has been proved on record is the Will dated 15/12/1971. Accordingly, the issue No. 1 is decided in favour of thepetitioner and it is held that the Will dated 15/12/1971 is the last and validwill of the deceased Manohar Das. This being the position I do not see anyimpediment in the grant of probate to the Will dated 15/12/1971 Ext. P-l. Relief ( 13 ) IN the circumstances, the application succeeds and the probate of the Willdated 15/12/1971 (Ext. P-l) is granted in favour of the petitioner subject tothe petitioner filing the Court fee according to the valuation determined by the Chiefrevenue Controlling Authority and the bond as prescribed by law. The petitionerwill also render to this Court a true account of the properties and the credits withinone year from the date of the issue of the probate. Probate of the Will hereby grantedwill have effect over the properties which are subject-matter of the Will. ( 14 ) LEARNED Counsel for the petitioner states that the client will, in accordancewith the wishes of the testator, abide by the terms of the Will dated 15/12/1971 meaning thereby that the properties covered by the Will not be sold ormortgaged by the petitioner. The undertaking is hereby recorded. The objectionsfiled by the objectors are hereby dismissed.