1. This Probate Petition has been filed by the petitioners under Section 276 of the Indian Succession Act for grant of Probate/Letter of Administration in respect of Will dated 11.3.1983, allegedly executed by late Shri Karan Singh. Shri Karan Singh died on 26.3.1983. The Will in question is a registered Will. Notice of the petition was sent to all the relatives/legal heirs of late Shri Karan Singh as mentioned in the petition. One son of deceased Shri Karan Singh viz. Shri Bhim Singh filed objections against the grant of probate to the petitioner. 2. By the alleged Will, Shri Karan Singh bequeathed all his properties to his wife and four sons excluding Shri Bhim Singh. Shri Bhim Singh took objection stating that though the Will, in question, was in existence since 1983, the Testator died in March, 1983 and the probate has been filed in 1997 i.e. after more than 12 years therefore, the petition was barred by limitation. On merits, it was submitted that Shri Karan Singh was under the influence and pressure of the petitioners, he was suffering from mouth cancer and was not in a position to talk, walk or to consult anyone or take independent decision. He was under treatment of Dr. Nagrath since 1980 and a certificate of Dr. Nagrath was not annexed with the Will showing his fitness while executing the same. Shri Karan Singh had also not appointed any executor in the Will thus, the Will was bad in law. It was also alleged that the Objector (Shri Bhim Singh) had very good relations with late Shri Karan Singh. He had been helping his father Shri Karan Singh right from the age of 10 years in the business of selling fodder and the business of commission agent and the properties mentioned in the Will were all purchased from joint family earnings, Shri Karan Singh had no authority to execute the Will in respect of joint family properties and the properties had to go as per Hindu Law as applicable to HUF properties. The Objector also raised objection regarding the valuation of the properties done by the petitioner. Following issues were framed in this case: 1. Whether the petition is barred by limitation OPD 2. Whether the Will dated 11.3.1983 is signed and executed by deceased Karan Singh OPP 3. The Objector also raised objection regarding the valuation of the properties done by the petitioner. Following issues were framed in this case: 1. Whether the petition is barred by limitation OPD 2. Whether the Will dated 11.3.1983 is signed and executed by deceased Karan Singh OPP 3. Whether late Karan Singh was mentally and physically sound to execute the Will OPP 4. Whether Karan Singh had power to execute the Will in respect to the properties in question OPP 5. Whether the suit has been correctly valued for the purpose of Court fee and jurisdiction 6. Relief (refer to order dated 14.11.2005) Issue No.1 3. A Division Bench of this Court in S.S.Lal v. Vishnu Mitter Govil 112(2004) DLT 877, has considered the question of limitation in a probate petition and held that the proceeding for grant of probate or Letter of Administration are not in the nature of asserting any right or grant of any right such proceeding only seek recognition of court to perform a duty and a probate petition would not be barred under the Limitation Act. The right to apply for probate or Letter of Administration was a recurring one. I consider that in view of the above judgment of this Court the issue has to be decided against the Objector and in favour of the petitioner. The issue is decided accordingly. Issue No.4 4. One of the contentions of the Objector is that Shri Karan Singh had no power to execute Will in respect of properties mentioned in the Will since the properties except telephones and bank accounts etc. were joint family properties or the properties under tenancy. 5. The Objector had filed a suit for partition and rendition of accounts being Suit No. CS(OS) No. 1179/1997 in respect of following properties: (i) No. 47 (MCD No. 8497), Arakashan Road, Pahar Ganj, New Delhi (ii) Shop No. 5, Chara Mandi, Zakhira, Delhi; (iii) Shop known as Janta Dharam Kanta, Chara Mandi, Zakhira, Delhi and (iv) Agricultural land along with built up house at village Mattan, District Rohtak (now Bahadurgarh), Haryana alleging that these were joint family properties. This Court vide order dated 4th July, 2008 dismissed the suit of Objector with costs since the Objector had failed to prove that the properties in question were joint family properties. This Court vide order dated 4th July, 2008 dismissed the suit of Objector with costs since the Objector had failed to prove that the properties in question were joint family properties. The plea of the Objector that no Will could be executed by the deceased as the properties were HUF/joint properties therefore must fail. The plea that a Will could not be executed in respect of leasehold property also must fail. The leasehold rights, so far as they are inheritable, can be subject matter of a Will and there is no bar on a person leaving behind a Will in respect of his leasehold rights, if they are inheritable. I, therefore, decide this issue against the Objector and in favour of the petitioners. Issue No.3 .6. The petitioner no.1 in order to discharge his onus of proving the issue examined himself as PW1, his brother Ajit Singh as PW 2 and one attesting witness Gurcharan Singh as PW3. In examination in chief filed by way of affidavits of PW1, PW2 and PW 3 not a word has been uttered about the sound mental or physical health of Shri Karan Singh. However, during cross examination, PW1 admitted that his father died of throat cancer and his father was suffering from this cancer since 1980. PW1 did not know the age of his father at the time of his death. He submitted that his father had gone to Sub Registrars office for execution of the Will with him by a taxi; Mr. Gurcharan Singh, the other witness was along with them and it was his father, who gave instructions to the Counsel for drafting the Will. He denied the suggestion that due to throat cancer his father was not in a position to speak. His father had not attached any medical certificate regarding his mental capability to execute the Will and regarding his capacity to speak. It is admitted by him that his father died of mouth and throat cancer after 15 days of registration of the Will. He admitted that on the day the Will was registered his father was sick and having throat cancer as well as mouth cancer and he was under treatment of doctors at Safdarjung Hospital. PW2 on the other hand stated that his father was working as commission agent and continued to work till 1983 prior to his death. His father had throat cancer since 1980-1981. PW2 on the other hand stated that his father was working as commission agent and continued to work till 1983 prior to his death. His father had throat cancer since 1980-1981. He denied the suggestion that due to throat cancer his father was not in a position to speak but asserted that his father was able to speak till the time of his death. He denied that his father was taking treatment from Dr. Nagrath but asserted that his father was taking treatment from Safdarjung hospital. One certificate from Dr. Nagrath filed by Shri Karan Singh in a case titled as Karan Singh v. Kishan Lal was put to PW2 during cross examination and he replied that he did not know if this was filed by his father. PW3, the attesting witness stated that he knew Pratap Singh petitioner, since Pratap Singh was his childhood friend. About Karan Singh (Testator) he stated that he was in good state of health when the Will was executed. Shri Karan Singh was keeping good health even prior to execution of the Will. He could not tell since when Shri Karan Singh was fit or he was ill. He however, deposed that he had heard that Shri Karan Singh was having throat cancer. He then changed his version and stated that he used to visit late Shri Karan Singh, as he was ill. He denied the suggestion that Shri Karan Singh was unable to speak and stated that it was Shri Karan Singh who got his Will typed through some counsel. 7. OW1 Mr. Bhim Singh in his examination in chief (by way of affidavit) testified that Shri Karan Singh was suffering from mouth cancer which was awfully painful and he was not in a position to speak or think properly. He could not even walk. He was under treatment of Dr. Nagrath and certificate dated 15.9.1981 was issued by Dr. Nagrath. His father died after 14 days of the alleged execution of Will due to cancer because his cancer was at advanced stage. The Will in question was got executed by petitioner from the father under undue influence, pressure and fraud. His father was not in a position to talk, walk or to consult anyone or to take any independent decision. His father died after 14 days of the alleged execution of Will due to cancer because his cancer was at advanced stage. The Will in question was got executed by petitioner from the father under undue influence, pressure and fraud. His father was not in a position to talk, walk or to consult anyone or to take any independent decision. During cross examination, he stated that his father was not in his senses and was also not in the sound mind about two months prior to his death. All the documents of treatment of his father were in possession of petitioners and other brothers. He denied the suggestion that his father was in sound mind at the time of executing the Will. He also denied the suggestion that his father was in a position to walk, talk or to take independent decision. He admitted that his father was getting treatment from Safdarjung Hospital and his brothers (petitioners) used to take him to hospital for treatment. He denied the suggestion that since his behavior was not good towards his father his father had divested him off from successorship of his properties. .8. In this case a specific issue no. 3 was framed about the mental and physical health of the deceased Shri Karan Singh. It is admitted fact that Shri Karan Singh was suffering from throat cancer and mouth cancer. It is also an admitted fact that Shri Karan Singh died on 26.3.1993 i.e. just two weeks after executing the alleged Will. It is not disputed that Shri Karan Singh was being treated at Safdarjung hospital and all treatment record was with the petitioners since petitioners were taking Shri Karan Singh to hospital. Strangely enough, despite the onus of the issue being on the petitioners, the petitioners failed to place before the Court medical record of Shri Karan Singh to show that Shri Karan Singh was in a fit state of mind and in a fit condition to give instructions to the counsel or to anyone else about preparation of the Will. The attesting witness PW3 initially stated that Shri Karan Singh was hale and hearty but he changed his testimony stating that he heard about Shri Karan Singhs suffering from mouth cancer; and his third version was that he used to visit Shri Karan Singh during illness since he was ill. The attesting witness PW3 initially stated that Shri Karan Singh was hale and hearty but he changed his testimony stating that he heard about Shri Karan Singhs suffering from mouth cancer; and his third version was that he used to visit Shri Karan Singh during illness since he was ill. The testimony of this witness, who is the most material witness in this case, is highly doubtful. If Shri Karan Singh was at a terminal stage of mouth cancer and throat cancer, he would not have looked healthy, even from appearance but this witness stated that he was in good state of health when he executed the Will and he was keeping good health even prior to execution of the Will. While, it is admitted case that the testator was suffering from throat and mouth cancer for the last three years, PW 2 showed his ignorance about certificate of Dr. Nagrath, mark A. Though this document has not been proved by producing Dr. Nagrath in the witness box, but since it is admitted that Shri Karan Singh was suffering from cancer, a help can be taken from the certificate to know what was the condition of Shri Karan Singh in 1981, when this certificate was issued. In 1981 Shri Karan Singh was advised bed rest for one week and it was stated that he was suffering from hard painful condition and a swelling of the size of a grape was there on the right side of the tongue at its back, which was presumably cancerous. Shri Karan Singh died in March, 1983 i.e. 1 years of issuance of this certificate. This only shows that the condition of Shri Karan Singhs mouth and throat cancer deteriorated very fast and within 1 years he was no more in the world. It is highly doubtful that Shri Karan Singh was in a position to speak and give instructions. This doubt is further fortified from the testimony of PW3, who asserted that Shri Karan Singh was in good health despite the fact that he was at the terminal stage of cancer which actually resulted into his death within 14 days. The presence of PW3 at the time of execution of alleged Will by late Shri Karan Singh is therefore doubtful. The presence of PW3 at the time of execution of alleged Will by late Shri Karan Singh is therefore doubtful. It is possible that Shri Karan Singh was in a position to sign but it does not show that he was in a position to apply his mind neutrally and was in a sound mental position. I, therefore, hold that the petitioners have failed to prove that Shri Karan Singh was physically and mentally sound at the time of execution of the Will. I decide this issue against the petitioners. Issue No.2 .9. In order to prove a Will, the testimony of the attesting witness has material value. In this case, attesting witness is Mr. Gurcharan Singh. He in his examination in chief stated that the Will was drafted in his presence and in presence of Shri Karan Singh and other witness. He testified that first the Will was signed by Shri Karan Singh and then he put his signatures in presence of late Shri Karan Singh and other witness. In his cross examination, he admitted that he was a childhood friend of Pratap Singh/petitioner. He admitted that a criminal case was proceeded against him at the instance of DDA in respect of construction over his property. He did not remember, if Pratap Singh, the petitioner, was also one of the co-accused. He testified that he did not remember anything of that criminal case since it was one year old. This only shows that this witness was evading answers in respect of his case wherein Pratap Singh was allegedly a co-accused. .About the health of Shri Karan Singh also, he gave contradictory answers. According to him at the office of Sub- Registrar Shri Karan Singh got his Will typed through some Counsel and then put his signatures on it in urdu thereafter he signed the Will as an attesting witness and then Shri Amar Jeet Singh, also signed the Will. The Will was written in English. He was asked if he had signed the Will in the office of Advocate or in the office of Sub Registrar which he did not remember. He did not remember, if other witness and Shri Karan Singh also signed the Will in the office of the Counsel. Thereafter, he changed his version and stated that he signed the Will in the Court. He did not remember, if other witness and Shri Karan Singh also signed the Will in the office of the Counsel. Thereafter, he changed his version and stated that he signed the Will in the Court. When he was asked whether he put thumb impression, he stated that he did not remember since it was an old matter, though he identified his signatures on the Will. He denied the suggestion that he signed the Will at the instance of Pratap Singh because of friendship. It is the case of PW1 that the Will was prepared by a Counsel at the instruction of Shri Karan Singh. Name of counsel/advocate was not remembered by this witness neither his address was remembered. Thus, the testimonies of the petitioners and attesting witness show that the objection raised by the Objector that though the Will was signed by father late Shri Karan Singh but it was not a valid Will holds some ground. 10. In order to be a valid Will, it is necessary that it should be executed by the Testator in presence of two witnesses and the Testator and the witness should sign in presence of each other. The testimony of PW1 and PW2 does not inspire confidence since both of them had stated to have gone to Sub- Registrar office along with one witness, wherefrom this second witness had come and how this second witness was contacted is not specified; the testimony is silent on this. PW3 says that second witness signed the Will but during cross examination he also testified that Shri Karan Singh went to Sub Registrar office with the petitioner and with him in a taxi, he did not talk of second witness accompanying Shri Karan Singh. The testimony of PW 3 is otherwise not confidence inspiring. He was a close friend of the petitioner. His testimony about the health of the Karan Singh is highly improbable and doubtful. He is not a trustworthy witness because of wavering testimony he had given in the Court about the health of Shri Karan Singh. I, therefore, consider that the petitioners have not succeeded in proving that the Will was duly executed by deceased Shri Karan Singh. Though, the Will seems to be signed by Karan Singh but these signatures seem to be made at the instance of Shri Pratap Singh one of his sons with whom Karan Singh was living. I, therefore, consider that the petitioners have not succeeded in proving that the Will was duly executed by deceased Shri Karan Singh. Though, the Will seems to be signed by Karan Singh but these signatures seem to be made at the instance of Shri Pratap Singh one of his sons with whom Karan Singh was living. Shri Karan Singh was at the last stage of life due to cancer. His death was imminent and just before his death it was thought fit to have a Will from him and that is the reason that this Will was got executed from Shri Karan Singh but is does not seem to be signed by the two witnesses viz. PW3 and other unexamined witness, in presence of Karan Singh and it does not seem to be that Karan Singh was in a state of sound mental health to execute this Will. I, therefore hold this issue against the petitioners and in favour of the Objector. Issue No.5 11. The issue of valuation of the petition is redundant. In case of probate petition, for the purpose of Court fee, a fixed value is affixed and for the purpose of jurisdiction the value has to be above Rs.20 lac. The Letter of Administration/Letter of Probate is issued on the basis of value of the property as ascertained by the Court through government valuer or through Collector of the area where property is situated. I, therefore, consider that this issue has been unnecessary framed and need to be answered. Relief. The petition is hereby dismissed.