ISHAR SINGH Vs. STATE OF DELHI

JUDGEMENT

(1.) THIS is a petition under Section 276 of Indian Succession Act for grant of probate of the Will alleged to have been executed by Late Smt. Gursaran Kaur on 29th November, 2004. Late Smt. Gursaran Kaur died on 21st February, 2010 leaving husband, two sons and three daughters as her legal heirs. The Petitioner is the husband of the testatrix, Mr. Gurbachan Singh and Mr. Jaswinder Singh are her sons and Mrs. Kuljit Chatteerjee, Mrs. Baljit Rana and Mrs. Guljit Kaur Kochar are her daughters.

(2.) THE citation was published in Hindustan Times and Navbharat Times and was also affixed at a conspicuous portion of property No. E -4, Nizammudin West, New Delhi which is alleged to have been owned by Late Smt. Gursaran Kaur. Notice of the petition has been served on all the non -applicants legal heirs of the deceased. Objections have not been filed by any of the legal heirs of the deceased. Rather affidavits of consent have been filed by all of them, admitting the Will dated 29th November, 2004 and stating that they have no objection to grant of probate to the Petitioner. The original Will has been filed along with the petition. It purports to have been executed by Smt. Gursaran Kaur in the presence of two witnesses namely Mr. Shekar Nagpaul and Mr. Naresh K. Manaktala. The Petitioner has filed affidavit of Shri Shekar Nagpaul, one of the attesting witnesses to the Will. In his affidavit, Shri Shekar Nagpaul has stated that the Will dated 29th November, 2004 was signed by Late Smt. Gursaran Kaur in his presence and in the presence of Mr. Naresh K. Manaktala. He has further stated that both of them also signed the Will as attesting witnesses on the request of the testatrix. He has also stated that she was in good health and of sound mind at the time of execution of the Will annexed as Annexure B/1.

(3.) 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 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.