THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Pronounced on: 19.01.2011 + Test.Cas. 75/2008 Smt. Geeta Devi Goel.. Petitioner - versus - State...Respondent Advocates who appeared in this case: For the Petitioner: Mr. M.A. Niyazi, Adv. For the Respondent: None. CORAM:- HON BLE MR JUSTICE V.K. JAIN 1. Whether Reporters of local papers may No. be allowed to see the judgment? 2. To be referred to the Reporter or not? No. 3. Whether the judgment should be reported No. in Digest? V.K. JAIN, J. (ORAL) 1. This is a petition for grant of probate of the WILL dated 4 th December, 1997 executed by late Shri Anand Parkash Goel, husband of the petitioner. It is alleged in the petition that late Shri Anand Parkash Goel had executed a WILL dated 4 th December, 1997. He died on 24 th July, 2004 and was survived by four Class-I legal heirs i.e. his widow/petitioner Smt. Geeta Devi Test Cas. No.75/2008 Page 1 of 6
Goel and three sons namely Shri Nitin Goel, Shri Rohit Kumar Goel and Shri Ajay Kumar Goel. 2. The citation was published in Indian Express (New Delhi Edition) and notice issued to the non-applicant legal heirs of the deceased testator was also duly served on them. Non-applicant legal heir Ajay Kumar Goel filed no objection in the form of an affidavit on his behalf as also on behalf of other non-applicant legal heir Rohit Kumar Goel, who has executed a power of attorney in his favour. 3. Non-applicant legal heir Nitin Goel was proceeded ex-parte vide order dated 6 th February, 2009. 4. The petitioner has examined three witnesses including herself. PW-2 Shri S.L. Mehrotra and PW-3 Shri K. Venkatasubramanian are the attesting witnesses of the WILL dated 4 th December, 1997 executed by late Shri Anand Parkash Goel. Both of them stated that the WILL was signed by late Shri Anand Parkash Goel on 4 th December, 1997 in their presence and that they also signed in the presence of each other on that date. 5. In her affidavit, Smt. Geeta Devi Goel has supported the case, as set up in the petition. 6. In her additional affidavit filed today in Court, the Test Cas. No.75/2008 Page 2 of 6
petitioner Smt. Geeta Devi Goel has proved the power of attorney executed by her son/non-applicant-legal heir Shri Rohit Kumar Goel in favour of her other son/non-applicantlegal heir Shri Ajay Kumar Goel. The power of attorney has been duly registered on 16 th April, 2008 in the Office of Sub- Registrar VIII, New Delhi. A copy of the power of attorney, which is available on the file, shows that the attorney, amongst other things, was authorized to institute, commence, prosecute, carry on or defend or resist all suits and other actions and proceedings or withdraw the same, concerning the property of the executant or any part thereof or concerning anything in which he may be a party in any Court in civil, criminal, revenue or revisional jurisdiction. Thus, the executant of the power of attorney Rohit Kumar Goel authorized his attorney Shri Ajay Kumar Goel to prosecute or defend any proceedings to which he may be a party. This power obviously would include the power to give no objection certificate on his behalf in these probate proceedings. 7. Section 68 of Evidence Act, to the extent, it is relevant, provides that if a document is required by law to be attested, it shall not be used as evidence until at least Test Cas. No.75/2008 Page 3 of 6
one attesting witness has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Since the Will is a document required by law to be attested by at least two witnesses, the petitioner could have proved it by producing one of the attesting witnesses of the Will. In the case before this Court, the petitioner has examined both the attesting witnesses to the WILL and has thereby duly proved the document in terms of the requirement laid down in Section 68 of the Evidence Act. 8. A bare perusal of Section 63(c) of Indian Succession Act would show that a Will is required to be attested by two or more witnesses and each of them must have seen the Testator sign or affixing his mark to the Will or should have seen some other person signing the Will in the presence and under the directions of the Testator or should have received a personal acknowledgement from the Testator with respect to his signature or mark or signature of the another person who signs the Will in the presence and under the direction of the Testator and it is also necessary that each witness should sign the Will in the Test Cas. No.75/2008 Page 4 of 6
presence of the Testator. This, however, is not the requirement of law in India that both the attesting witnesses should also sign in the presence of each other. 9. Though the English law requires that both the witnesses must be present at the same time and both must see the Testator execute the documents as his Will, the Indian law expressly lays down to the contrary by providing in clause 6(c) of Section 63 that it shall not be necessary that more than one witness be present at the same time. In fact, it is also not necessary that all the witnesses must see the Testator sign. It may as well happen that one witness may see the executor sign and the other witness may not see him sign, but the Testator may acknowledge his signature before him. However, in the case before this Court both the witnesses have specifically stated that not only the testator has signed in their presence, they also signed in the presence of each other. 10. The WILL executed by late Shri Anand Parkash Goel is exhibit Ex. PW1/2 and has been duly proved by the attesting witnesses Shri S.L. Mehrotra and Shri K. Venkatasubramanian. The report of the Chief Revenue Controlling Authority has already been received. Thus, Test Cas. No.75/2008 Page 5 of 6
there is no impediment in grant of probate of aforesaid WILL in favour of the petitioner. Accordingly, a probate of the WILL dated 4 th December, 1997 executed by late Shri Anand Parkash Goel is granted in favour of the petitioner with a copy of the WILL annexed thereto. January 19, 2011 vk (V.K. JAIN) JUDGE Test Cas. No.75/2008 Page 6 of 6