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2005 DIGILAW 6 (DEL)

KAMLA JAIN v. STATE

2005-01-04

PRADEEP NANDRAJOG

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PRADEEP NANDRAJOG, J. ( 1 ) PETITIONER is the widow of late Shri Jang bahadur Singh, who died on 10. 10. 1994. He left behind his wife the petitioner 3 sons and 2 daughters. Petitioner seeks grant of Letter of Administration with copy of will attached, predicating her claim on a will dated 27. 7. 1988 alleged to have been executed by late Shri jang Bahadur Singh. ( 2 ) ONLY one natural heir the son Shri b. K. Singh has filed objections to the grant of letter of Administration as prayed by the petitioner. ( 3 ) TWO issues were framed vide order dated 7. 7. 2000. The issues being:- 1. Whether the deceased Shri Jang bahadur Singh, executed will dated 27th july, 1988 as alleged in the plaint? OPP. 2. Whether he had no right to bequeath the assets mentioned in the Will? OPD ( 4 ) SINCE issues of little cannot be gone into in probate proceedings, which concern themselves solely with issue whether the will propounded is the last testament of deceased, parties gave up issue No. 2 as reflected in the order dated 15. 12. 2003 passed in the proceedings. Said order records that issue no. 2 stands deleted. The order records that it would be open to the objector to take resort to a title suit. ( 5 ) ACCORDINGLY, only issue No. 1 survives for adjudication. ( 6 ) PETITIONER has been granted a life interest in the estate of deceased as per the will relied upon. Thereafter, bequest has to operate in the manner indicated in the will. ( 7 ) EVIDENCE on record brings out that the objector, along with his brothers and sisters had sworn an affidavit dated 5. 6. 1995 (Ex. PW. 1/1 ). The said affidavit was filed before upseb. Inter aria, affidavit records:- "5 That our mother Smt. Kamla Jain w/o Late Shn J. B. Singh, has already got the entire Dhanush Kothi including the said property mutated in her name from the Municipal Corporation, Khatauli, as per the last will of our father Late Shn j. B. Singh. " ( 8 ) OBJECTOR who had examined himself as dw. 1 on 10. 4. 2001, in cross-examination was confronted with the affidavit aforesaid. His reply was as under: - 1 have seen affidavit dated 5. 6. 1995, this is Ex. PW. 1/1. " ( 8 ) OBJECTOR who had examined himself as dw. 1 on 10. 4. 2001, in cross-examination was confronted with the affidavit aforesaid. His reply was as under: - 1 have seen affidavit dated 5. 6. 1995, this is Ex. PW. 1/1. This affidavit is signed by me. ( 9 ) OBJECTOR did not explain the admission in para 5 of the affidavit. Admission being to the effect that the deceased had left a will. ( 10 ) THE objector has not relied upon any other will of the deceased. Admission in the affidavit sworn by the objector is that his father left behind him a will. ( 11 ) APART from the admission of the objector in the affidavit aforesaid that the deceased had left a will, petitioner has led evidence to establish that the deceased had executed the will in question. ( 12 ) IT has to be noted that the will in question was registered on the date of its execution i. e on 27. 7. 1988 as document No 3648, Book no,iii, Volume 459 at pages 169 to 173 in the office of the Sub Registrar-Ill, Delhi mr. G. C. Chopra, UDC, in the office of the Sub registrar- III, Delhi was examined as PW. 2. He produced the original record which revealed the registration of the will in question. The original will Ex. PW. 2/1 was admitted by the witness as being the will which was registered in the office of the Sub Registrar- iii. Witness deposed that whenever a will is registered, testator is required to be present at the time of its registration and has to sign the will in presence of the Sub Registrar. He depose that witnesses to the registration are also required to be present at the time of registration of the will. The witness has not been cross-examined. ( 13 ) NO defect or infirmity in the registration of Ex. PW. 2/1 has been pointed out to this court. Once a will is registered, it lends prima facie assurance to the fact that the testator knew what he/she was doing. It lends prima facie assurance to the court about the authenticity of the document. ( 13 ) NO defect or infirmity in the registration of Ex. PW. 2/1 has been pointed out to this court. Once a will is registered, it lends prima facie assurance to the fact that the testator knew what he/she was doing. It lends prima facie assurance to the court about the authenticity of the document. If a will is registered, until and unless, the objector brings out some inherent infirmity in the document or in the process of registration, it prima facie establishes the execution of the will in question. ( 14 ) SHRI P. C. Rastogi is one of the attesting witnesses to the will. He appeared as PW. 3. In his deposition, witness deposed that he knew the testator since 1948 as they were working in the same office in the Army Headquarters. He deposed that the two were on good terms and used to frequently visit each others house. He deposed that the testator had been telling him that he wanted to execute a will Witness deposed that when the testator executed the will, he was requested to witness the same. The will was signed by the testator on each page in his presence. Witness identified the signatures of testator on each page of the will at A-1 to A-5 as also at the end of the will at A-6. Witness identified his signatures on the will at B-1. Witness identified the signatures of the other attesting witness Shri. O. P. Gupta at B-2. Witness deposed that the other attesting witness had witnessed the execution of the will and signed as an attesting witness in his presence. Witness deposed that after the will was executed, all went to the office of the Sub Registrar along with Mr. Ram Gopal aggarwal, Advocate. All were present at the time of registration of the will. Witness categorically deposed that the testator was in a sound state of mind and health on 27. 7. 1988. Witness deposed that the testator drove the car himself and took all to the office of the Sub Registrar. ( 15 ) CROSS-EXAMINATION of this witness by counsel for the objector records as under:- "cross-EXAMINATION by Mr. Anil K. Kher, advocate i did not read the will when it was executed. However, I was the person who brought the original will from the office of the Sub Registrar after about 11-12 days. ( 15 ) CROSS-EXAMINATION of this witness by counsel for the objector records as under:- "cross-EXAMINATION by Mr. Anil K. Kher, advocate i did not read the will when it was executed. However, I was the person who brought the original will from the office of the Sub Registrar after about 11-12 days. " ( 16 ) IT has to be noted that the witness was not even remotely challenged on his testimony. It was not even suggested to the witness that what he was deposing was false. ( 17 ) PETITIONER examined herself as PW. 4 In her deposition she stated that she her husband signing on several occasions and could identify his signatures. She identified the signatures of her husband at Mark A-1 to A-6 on the will. In her affidavit she deposed that the property in khatauli town was tenanted and to facilitate receipt of rent by her, all her children gave an affidavit affirming the existence of the will. ( 18 ) THIS witness was examined on issue of title to the various lands and properties referred to in the will. Her testimony remained unchallenged in cross-examination on the issue of execution of the will by the deceased. ( 19 ) AS noted above, objector examined himself as DW. 1. In his deposition he sought to establish that the deceased could not have made a will qua certain properties as according to him these were HUF properties. He in his examination in chief that he was not aware of any will left by his father. It has however to be noted, that in his deposition he did not even whisper that the will in question is a forged, fabricated, procured or a created document. On the contrary, as noted above in cross-examination he admitted having executed the affidavit dated 5. 6. 1995 (Ex. PW. 1/1) ( 20 ) EVIDENCE on record clearly establishes that the deceased executed the will in question being Ex. PW. 2/1. The same was executed without any coercion or inducement and when the deceased as in full control of his physical and mental faculties. ( 21 ) THE petition his allowed. It is declared that the petitioner entitled to letter of Administration with copy of the will dated 27. 7. PW. 2/1. The same was executed without any coercion or inducement and when the deceased as in full control of his physical and mental faculties. ( 21 ) THE petition his allowed. It is declared that the petitioner entitled to letter of Administration with copy of the will dated 27. 7. 1988 annexed thereto ( 22 ) REGISTRY to complete the formalities on requisite stamp paper being filed for drawing up the Letters of Administration with wiii annexed. Petitioner to comply with the provisions of Section 291 of the Indian succession Act, 1925. No costs.