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2002 DIGILAW 1587 (DEL)

SANTOSH DAYAL v. STATE OF DELHI

2002-10-04

S.MUKERJEE

body2002
S. Mukerjee ( 1 ) THIS petition under Section 276 and 300 of the indian Succession Act has been instituted in relation to estate of late Sh. Rameshwar Dayal S/o late Sh. Shankar dayal. As per copy of death certificate which has been placed on record, he died on 23. 1. 1999 at New Delhi. leaving behind the following Legal Heirs : 1. Sh. Santosh Dayal r/o No. 34, Greater Kailash Part-I new Delhi-110 048 2. Sh. Sudhir K. Dayal r/o D-895, New Friends Colony new Delhi-110 065 3. Ms. Pushpa Tayal W/o Sh. K. M. Tayal r/o 50-C , Green View Apartments, sector-15/a 4. Ms. Shyama Aggarwal W/o Sh. B. M. Aggarwal r/o 8-A, Camacourt, 25 Carnac Street, calcutta-700016 ( 2 ) HIS last will and testament dated 14,8. 1989 has been duly exhibited as Exhibit Ext PWl/1. There were two attesting witnesses to the said Will viz late Sh. Dr. N. Sen who died long back and one sh. Yogeshwar Dayal younger brother of the deceased. ( 3 ) THE testimony of Sh. Yogeshwar Dayal as attesting witness has been recorded on commission by local Commissioner Mr. Vijay Gupta. Advocate as PW 1. ( 4 ) , From the deposition of the said attesting witness, it stands established for the purposes of these proceedings that the said Will was duly executed and signed on each page by the deceased. including in relation to the corrections and the witness PW-1, has signed as second attesting witness to the said Will. ( 5 ) THE said witness has further deposed that when sh. Rameshwar Dayal signed the Will, he was in a sound and disposing state of health, of both mind and body, and that the deceased signed in his presence and thereafter both attesting witnesses signed in his presence and in the presence of one another, all three being present and signing simultaneously. ( 6 ) LEARNED Senior counsel for the petitioner submits that as per the said Will, both brothers had to pay in equal shares Rs. One lakh, to go to each of the two sisters Some of the household goods had also to go to the share of the sisters. According to him, the brothers duly carried out the needful and in fact the objector has executed document dated 31,1. One lakh, to go to each of the two sisters Some of the household goods had also to go to the share of the sisters. According to him, the brothers duly carried out the needful and in fact the objector has executed document dated 31,1. 1999 which is Exhibit R 3 w1/p1 at point mark ,a, confirming that she has no claim whatsoever against the estate of deceased Rameshwar dayal. ( 7 ) THERE are no objections by any of the other relations mentioned above. ( 8 ) MR. V. P. Singh, learned Senior counsel for the petitioner submits that once the requirements of Sections 63 of the Indian Succession Act and Section 68 of the evidence Act, have been found satisfied as in the present case the probate has to be granted in relation to the said Will. ( 9 ) IT is well settled that order granting probate does not decide any issues of ownership or title in relation to the property or estate of the deceased, ( 10 ) HE also drew my attention to order. dated 28. 9. 1999 passed by Hon ble Mr. Justice S. K. Mahajan in these very proceedings, where it has been observed that the contention of the objector that deceased Sh. Rameshwar Dayal could not have executed the Will at all, is not relevant for the purpose of deciding the probate petition. As such, only the following issues were framed:- 1. Whether the document, dated 14th August, 1989 is the last Will and testament of rameshwar Dayal son of Late Shri Shankar dayal ? If so, to what effect ? 2. Relief. ( 11 ) IT is not the case of the objector that any other issues ought to have been framed or that objector pressed for framing- of any other issues, ( 12 ) ON the other hand, the contention of the objector was that the husband of the objector had appeared as her attorney and had categorically stated that the execution of the Will was under undue influence, and there was no cross-examination of the said witness on this aspect. In this connection, it may be noted that in. the pleadings of the objector by way of the main objections themselves, there is no clear pleading on the aspect of undue influence. No issue was got framed on this aspect. In this connection, it may be noted that in. the pleadings of the objector by way of the main objections themselves, there is no clear pleading on the aspect of undue influence. No issue was got framed on this aspect. No application was filed for framing of any additional issues on this aspect. It is settled position under law that no evidence can be looked at in the absence of pleadings. As such this contention of the objector holds no water. ( 13 ) MOREOVER I find that objector has admitted the receipt of Rs. 50,000/- from each of the brothers. It has also come on record that the personal belongings were devided between the relations after opening the locker. All this collaborates the contents of Exhibit R 3 W1/p1 dated 31. 1. 1999. ( 14 ) THE other contention of the objector is that. objector has instituted Suit No. 194/2000 which is pending before Sh. A. S. Yadav , Additional Sessions judge which is a suit for partition in which she has contended that the deceased had no title to the property and he could not have executed this Will. ( 15 ) THE said contention, if made in and whatever manner it may have been made in and/ or crystalised already or to be further crystalised during the trial of that suit, will be decided by the concerned Court upon the completion of the trial therein, on the basis of the pleadings and evidence which comes on record of those proceedings. It is made clear that the orders passed today granting probate of the Will dated 14. 8. 1989, will not preclude or foreclose the contention. of the objector, in the proceedings of the said partition suit to the effect that deceased Sh. Rameshwar Dayal did not have title to the properties, and as such could not have executed the Will in relation to the said properties. ( 16 ) I accordingly hold that the petitioner is entitled to the probate of the Will dated 14. 8. 1989 with respect to the properties referred to therein. It is made clear however that the probate shall be issued only after the necessary Court fee, in terms of evaluation, has been deposited. ( 17 ) PETITION is allowed but with no order as to costs.