RAMESH DUTT SALWAN Vs. STATE

JUDGEMENT

(1.) [Ed. facts : Appellant and Respondent No. 2 are brothers while No. 3 and 4 are their sisters and No. 5 is a sister's husband. Appellant alleging that their mother had made a will on 8-5-74 applied for grant of probate u/s 299 of Succession Act. He was joined by Respdt. 5 as both of them were named executors. Respdt. No. 5 however did not pursue. Appellant did not produce original will alleging same to be in possession of Respdt. No. 2. The will was presented for registration after 20 days and it was regd. on 29-5-74. Its attesting witnesses were not local and they were relations of the appellant's wife. One of attesting witness was examined in court. The parties also deposed on oath. Respdt. 2 denied execution and genuineness of the will and claimed that the mother had made a will in 1968 and same having not been revoked deserved credence. Trial Court rejected the application and appellant appealed to High Court.] After detailing above facts, judgment proceeds :-

(2.) (a). Application for grant of certified copy of the will was made on 18-7-1980 by Ramesh Dutt and the certified copy was ready on 30-7-1980. During the course of arguments, it was submitted that the contents of the docment Ex. P-4 were got typed by Ramesh Dutt. This certified copy has been subject-matter of severe criticism by Mr. R.S. Narula, learned counsel for Shiv Dutt. For example, the names and addresses of the attesting witnesses have not been shown in the certified copy Ex. P-4 and only the endorsement "illegible"'has been given. Another certified copy, which is a photo-copy of the will in question from the office of the Sub Registrar, New Delhi, has been brought on record, which clearly shows the names and addresses of the attesting witnesses. There appeared to he thus no reason as to why in the certified copy Ex. P-4 the names of the attesting witnesses with particulars could not have been given. Mr. Narula said there was deliberate attempt to withhold the names of the attesting witnesses as the will in question was executed in mysterious circumstances. I may have to deal with this argument at a later stage.

(3.) Reference at this stage may be made to relevant provisions of law relating to preparation, execution and registration of a will. Every person of sound mind not being a minor may dispose of his property by Will. This is S. 59 of the Succession Act. There are four explanations to it and Explanation 4 reads:- "No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what be is doing."