SUBHASH NAYYAR Vs. REGISTRAR UNIVERSITY OF DELHI

JUDGEMENT

(1.) Both these appeals have impugned the order dated 06.10.2009 whereby the probate petition filed by the University of Delhi/petitioner/executor of the Will dated 13.03.1974 (hereinafter referred to as the "University') of the testator Roshan Lal had been decreed in its favour.

(2.) Record shows that Roshan Lal (hereinafter referred to as the "testator') had executed his last will and testament dated 13.03.1974. This document has been proved as Ex. PW-1/1. It bears the signatures of the testator Roshan Lal. In the column of witnesses, three names have been mentioned; first two names are neither legible and nor decipherable. It was for this reason that even the list of witnesses filed by the respondent on 07.04.2001 contains the name of Madan Lal Kapoor alone to prove the Will whose name finds mention at serial No.

(3.) In terms of Ex. PW-1/1, the testator had described himself as the absolute owner of Cottage No. 13, West Patel Nagar, New Delhi comprising of 10 shops and a three room residential portion. The recitals contained in the Will are to the effect that after his death his wife Seeta Devi during her lifetime will continue to live and be in possession of the residential portion of the property and will also be entitled to get rent of all the shops except shop No. 10; the rent for shop No. 10 will be received by the University. The University would be entitled to ownership of all the shops as also the residential portion only after the death of his wife; further the University shall as soon as may be convenient sell the entire property at the best possible price and the sums so received by the University by way of sale as also the rents shall be kept in the State Bank of India or any other nationalized bank on an interest bearing account in the name of "Roshan Lal Scholarship Fund"; out of the interest so received known as the Roshal Lal Scholarship, Rs.100/- per month per student would be awarded by the University to deserving and promising students of the University Medical College or failing which of any other medical college affiliated to the University who being poor are unable to meet his/her expenses on medical education; the account of the Roshan Lal Scholarship Fund would be operated by the Registrar of University. This document further recites that no other person has any concern with this property and is not in any manner entitled to it; it also does not concern his moveable properties. It is a registered document and had been proved by PW-1 who had brought the original summoned record from the office of the Sub-Registrar. 3 The appellants before this Court are the two sons of the testator. Their submission is that the Will is forged and fabricated and it had not been executed by the testator; the subject matter of the Will being ancestral property, the testator did not have the capacity to bequeath the said property; the Will not being free from suspicious circumstances, is an invalid document. These submissions have been noted in the amended objections filed by the objector/respondent No. 7/Sushil Nayar. His other brother Subhash Nayar and second son of the testator who is the appellant in FAO (OS) No. 576/2009 was ex-parte in the Court below. Relevant would it be to point out that in the first set of objections filed by respondent No. 7, there was no objection taken about the validity of the Will; his objections at that stage were bordered on the submission that the subject matter of the Will being ancestral property could not have been bequeathed. Six years later the amended objections were permitted to be filed where for the first time the contesting respondent had taken the plea that the Will has not been executed by Roshan Lal; the fact that the Will was a registered document was never disputed.