• Grandfather will

My grandfather had prepared an unregistered will on which his signature along with two witness is there .I am facing certain problems regarding this will ,please help in resolving the problems.
1.	 I had visited tehseel court for mutation but tehseeldar (magistrate) told me that after year 2002 they are not accepting any unregistered will but he also told me that if i would bring any sentence of court either of high court or supreme court or any case in which unregistered will is accepted after year 2002..then we will put our decision in favour of you.
So kindly provide me Supreme court and any high court ruling which is in favour of validity   of unregistered will after year2002.
2.	According to will there are two witness, one witness is ready for testimony  but another witness not ready for testimony.
So please tell me that the testimony of one witness will validate our will? If not then what should I do?
3.	The paper of my grandfather’s will is old enough and decaying day by day so should I laminate it? If yes ,in near future somebody challenges that will so lamination of that will affect it.
4.	If any person challenges my grandfather’s  will , what may be the points he raised against my grandfather’s unregistered will?
5.	If i want to sell a property Which have my name on the basis of my grandfather's will before mutation. this is right decision ?
6.	If  my grandfather’s will get rejected then how grandfather’s immovable property get divided in our hindu joint family? there are only two sons and no daughter of  grandfather, grandmother already expired and he is having two grandson and one granddaughter from his elder son and one more grandson from his younger son. So please describe how partion of the property will be done.

Please clear all problems points by point 

Thanks and Regards
Asked 2 years ago in Family Law from Rudrapur, Uttarakhand
Religion: Hindu
1. Tehsildr is wrong or you may have wrongly comprehended his statements. You require Probate of Will which is given in case of unregistered Will also.
2. One witness is sufficient to get Probate of the Will.
3. Better wait till the Probate s granted.
4. Only legal heirs can challenge the Will.The points are mostly that the person making the Will was not physically or mentally fit to execute the Will or it was done by him under force.
5.If you are the sole Beneficiary of the Will then you can sell the property.
6. Property will be equally divided among the children of his two sons as per number of them.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
rightly adviced you require probate of will court. secondly one witness is sufficient. after getting property on your name you can sell it. will can be challenged by legal heirs on grounds of disability physically or mentally or force/ fraud  is used in making of will
Avdhesh Chaudhary
Advocate, Greater Noida
565 Answers
20 Consultations
3.9 on 5.0
You can probate the will by filing a petition in the district court.mmovable property. 12. Learned Financial Commissioner, Punjab, in the case of Jasbir Kaur v. Harbhajan Singh reported in 2007(1) RCR (Civil) 596 has observed as under: -

"It is a settled law that mutation proceeding being summary in nature, the Revenue Officer is not supposed to go into the indicate question of law. It is also a settled law that in case of unregistered Will where any doubt arises, the Revenue Officer is to sanction mutation as per natural succession and the party beneficiary of an unregistered Will is required to go to the Court of competent jurisdiction for getting the legality of Will certified."

See the decisions relating to validity of  will
Asha M. Jain v. Canara Bank - 94 (2001) DLT 841, 
Corra Vedachalam Chetty, . vs G. Janakiraman on 
P. Sadananda Reddy Vs. C. Venkata Ratnam and others
Court : Andhra Pradesh

Reported in : 2000(3)ALD385; 2000(3)ALT229



Muddana Malleswara Rao Vs. Karanam Ramaiah and Nagaratnamma Charities ...
Court : Andhra Pradesh


Reported in : 2008(6)ALD592; 2008(5)ALT776
One witnesses is enough to prove the same
If it is old it must be probated immediately as it must not crossed the limitation period if so you must give reasons

They can challenge it on the ground of limitation coercion and threat is there behind
You can't sell before mutation if so you need the no objection letter of all heirs 
Yogesh Duggal And Ors. vs State & Ors
If the will goes away it will be shared equally among the heirs
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
1) Punjab Land Revenue Act, 1887, Section 34 -- Mutation - Unregistered Wills - Doubtful execution - First in favour of son, second in favour of son, daughter & wife - Execution of Wills doubtful - Where there is doubt in execution of unregistered Will it is mandatory for Revenue Officer to sanction mutation as per natural succession -..........

2) you can apply for probate of will . evidence of one witness is sufficient to prove genuine ness of the will . 

3) only legal heir can challenge genuine ness of the will . will can be challenged on grounds that grand father was of unsound mind at time of execution of will or that signature of grand father was forged . 

4) it can also  be challenged on grounds that your grand father did not sign will in presence of witnesess as alleged . 

5)wait for property to be transferred in your name then only sell it . 

6) in case no probate is granted property would devolve on grand father 2 sons only equally
Ajay Sethi
Advocate, Mumbai
23375 Answers
1225 Consultations
5.0 on 5.0
Dear Querist
my opinion on your queries are as under:

1.	 I had visited tehseel court for mutation but tehseeldar (magistrate) told me that after year 2002 they are not accepting any unregistered will but he also told me that if i would bring any sentence of court either of high court or supreme court or any case in which unregistered will is accepted after year 2002..then we will put our decision in favour of you.
So kindly provide me Supreme court and any high court ruling which is in favour of validity   of unregistered will after year2002.

Opinion: for SC/HC rulings you have to search through google, nadeemqureshi1.wordpress.com, judis.nic.in or another law sites.
2.	According to will there are two witness, one witness is ready for testimony  but another witness not ready for testimony.
So please tell me that the testimony of one witness will validate our will? If not then what should I do?
Opinion: both the witnesses(if alive) should be testimony, if one is not ready then the Will may be suspicious.. and can not be probate or mutate.

3.	The paper of my grandfather’s will is old enough and decaying day by day so should I laminate it? If yes ,in near future somebody challenges that will so lamination of that will affect it.
Opinion: lamination is not an offence and there is no affect on your intention, it will be useful for you......

4.	If any person challenges my grandfather’s  will , what may be the points he raised against my grandfather’s unregistered will?
Opinion: only your relatives and family members may raised any objection on your grandfather's Will, who wants to get their share from the property if any.

5.	If i want to sell a property Which have my name on the basis of my grandfather's will before mutation. this is right decision ?

Opinion: it may be, if the person who wants to buy the property on his own risk.
6.	If  my grandfather’s will get rejected then how grandfather’s immovable property get divided in our hindu joint family? there are only two sons and no daughter of  grandfather, grandmother already expired and he is having two grandson and one granddaughter from his elder son and one more grandson from his younger son. So please describe how partion of the property will be done

Opinion: the property will be divided as per hindu Succession act and it presumed that your grandfather died intestate.
The property of a Hindu male dying intestate, or without a will, would be given first to heirs within Class I. If there are no heirs categorized as Class I, the property will be given to heirs within Class II. If there are no heirs in Class II, the property will be given to the deceased’s agnates or relatives through male lineage. If there are no agnates or relatives through the male’s lineage, then the property is given to the cognates, or any relative through the lineage of males or females.

There are two classes of heirs that are delineated by the Act.

Class I heirs are sons,daughters, widows, mothers, sons of a pre-deceased son, widows of a pre-deceased son, son of a, pre-deceased sons of a predeceased son, and widows of a pre-deceased son of a predeceased son.

If there is more than one widow, multiple surviving sons or multiples of any of the other heirs listed above, each shall be granted one share of the deceased’s property. Also if the widow of a pre-deceased son, the widow of a pre-deceased son of a pre-deceased son or the widow of a brother has remarried, she is not entitled to receive the inheritance.

Class II heirs are categorized as follows and are given the property of the deceased in the following order:

Father
Son's daughter's son
Son's daughter's daughter
Brother
Sister
Daughter's son's son
Daughter's son's daughter
Daughter's daughter's son
Daughter's daughter's daughter
Brother's son
Sister's son
Brother's daughter
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
Hello,
*As opined by the experts the tehsildar can not decline to accept an unregistered will.What you will need to do is to get the wil probated by the competent court and take the order to the tehsildar.
*You need to get both the witnesses to testify.You need to convince the other unwilling witness to testify.
*I would advise you not to laminate the will but find some other means to preserve it util you get the will probated.This is so because once the document is laminated it becomes difficult to verify its originality and can lead to unwanted complications.
*Will whther registered or unregistered can be challengedThe basis of challenge would be whether it was done with his free will,while he was in sound health both mentally and physically,if the signature was forged etc.
*It is advisable not to sell until you get the will probated.
*In case the will contested and proved bogus the property will devolve equally among all sons and daughters ,married or unmarried.
S J Mathew
Advocate, Mumbai
1954 Answers
65 Consultations
5.0 on 5.0
There are certain legal instruments specified in the Registration Act, 1908, which require compulsory registration with competent authorities. Registering instruments that require compulsory registration as per this Act qualifies them as being valid instruments that are admissible in evidence in courts. Wills do not require compulsory registration per se under the Registration Act, 1908. Thus, even an unregistered will that has been properly executed is a valid instrument in the eyes of law.
if your Will is unregistered, under such circumstances you will have to file an application under Section 276(1) of Indian Succession Act 1925 for seeking Probate orders. Section 276(1) of Indian Succession Act is reproduced here under for your better understanding:
 
1. Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating—
 
a. the time of the testator’s death,
 
b. that the writing annexed is his last Will and testament,
 
c. that it was duly executed,
 
d. the amount of assets which are likely to come to the petitioner’s hands, and
 
e. when the application is for probate, that the petitioner is the executor named in the Will.

For the purpose of better understanding a `Probate Order' herein means  copy of a Will certified by Court of competent jurisdiction, which is to be treated as a direct evidence of the authenticity of a will thereby granting administration to the asset.

 Further it is settled position in law that the Revenue Officer is not supposed to go into the indicate question of law. In case of unregistered Will where any doubt arises only legal heir can challenge genuine ness of the will . will can be challenged on grounds that grand father was of unsound mind at time of execution of will or that signature of grand father was forged.
Sudershani Ray
Advocate, New Delhi
192 Answers
25 Consultations
4.9 on 5.0
Delhi High Court in a recently reported decision [ANITA KHOSLA v. STATE 2010 173 DLT 290] has declared that one witness was sufficient in order to determine the validity of a will. The Court held that it was not obligatory to examine both the witnesses to a will to come and testify in order to determine the genuineness of a will. Arriving at this conclusion, the Court quoted the provisions of the Indian Evidence Act to declare that the Indian law departed significantly with the English law in this regard.

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 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.
Ajay Sethi
Advocate, Mumbai
23375 Answers
1225 Consultations
5.0 on 5.0
In Girja Datt Singh vs Gangotri Datt Singh AIR 1955 SC 346, it was held that in order to prove the due attestation of the will the propounder of the will has to prove that the two attesting witnesses saw the Testatory sign the will and that they themselves signed the same in the presence of the testator. As regards the proof and attestation, reference was made to Section 68 of the Evidence Act and it was held that it is necessary to comply with the provisions of the Evidence Act to prove the due execution and attestation of the will by calling at least one attesting witness in case he is alive and one cannot presume from the mere signatures appearing at the foot of the endorsement of registration or at the foot of the document that the witnesses appended their signatures to the documents as attesting witnesses.
Ajay Sethi
Advocate, Mumbai
23375 Answers
1225 Consultations
5.0 on 5.0
1.Delhi High Court
Manmohan Singh And Anr. vs Joginder Kaur And Ors. on 19 July, 2002
Equivalent citations: 2002 (64) DRJ 293
2.
Delhi High Court
Krishan Dass Gupta vs State & Others on 16 February, 2012
Author: Reva Khetrapal
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ TEST CAS. 44/1999

KRISHAN DASS GUPTA ..... Petitioner Through: Mr. Prakash Gautam, Advocate versus

STATE & OTHERS ..... Respondents Through: Mr. Jagjit Singh, Advocate for

the respondents No.2, 4 and 7.

Mr. S.N. Gupta and Mr. S.S.

Shukla, Advocates for the

respondent No.3.

+ TEST CAS. 51/2004

RAM KUMAR GUPTA ..... Petitioner Through: Mr. S.N. Gupta and Mr. S.S.

Shukla, Advocates

versus

STATE & OTHERS ..... Respondents Through: Mr. Jagjit Singh, Advocate for

the respondents No.2 and 6.

Mr. Prakash Gautam, Advocate

for the respondent No.3.

% Date of Decision : February 16, 2012 TEST CASE.44/1999 and TEST CASE51/2004 Page 1 of 66 CORAM:

HON'BLE MS. JUSTICE REVA KHETRAPAL

JUDGMENT

: REVA KHETRAPAL, J.

1. Both the aforesaid probate petitions have been filed for grant of Letters of Administration in respect of the last will of late Shri Bhikhu Ram Gupta, who died on 04.10.1998, leaving behind him three sons and four daughters. The deceased testator was the owner of a double storey house built on Plot No.21/32, Shakti Nagar, Delhi. The admitted case of the parties is that the said plot was purchased and the construction raised thereon out of the exclusive savings and earnings of the deceased testator and as such, the deceased testator had complete right to dispose of and bequeath the said property in accordance with his own desire. The three sons of Shri Bhikhu Ram Gupta had been living with him in the aforesaid property from the time of its purchase till the date of his death. Insofar as the four daughters of Shri Bhikhu Ram Gupta are concerned, it is the common case of the parties that the testator had discharged all his obligations towards his daughters, who were married and well placed in life. TEST CASE.44/1999 and TEST CASE51/2004 Page 2 of 66

2. The first probate petition, being TEST CASE No.44/1999, is filed by one of the sons of late Shri Bhikhu Ram Gupta, namely, Shri Krishan Dass Gupta for grant of Letters of Administration in respect of the will of his father dated 6th March, 1992. The second probate petition, being TEST CASE No.51/2004, has been filed by the youngest son of late Shri Bhikhu Ram Gupta, namely, Shri Ram Kumar Gupta, who has staked his claim to the grant of Letters of Administration in respect of the estate of his deceased father premised on the will dated 21st September, 1998. Succinctly, the assertions made in both the aforesaid probate petitions are as follows. TEST CASE No.44/1999

3. In the aforesaid probate case, the petitioner Shri Krishan Dass Gupta has asserted that the petitioner and the respondent Nos.2 and 3, who are the other two sons of the deceased testator, had been staying in the house of the deceased testator with their families in their respective portions from the very beginning. The testator, with a view to ensure peace and harmony in the family, had got executed a Memorandum of Family Agreement/Settlement dated 02.10.1991, in terms of which it was specified that the various portions as indicated TEST CASE.44/1999 and TEST CASE51/2004 Page 3 of 66 in the site plan annexed with the Memorandum were with the respective parties (that is, the petitioner and the respondent Nos.2 and 3), and it was agreed in the Memorandum of Family Settlement that the parties will continue to enjoy possession of their respective portions. It was also elaborated in the said family agreement that if and when the said house gets demolished due to an act of God (including earthquake), or by the mutual consent of the three sons of the deceased testator, the land upon which the premises have been built shall vest in the ownership of the three sons in equal proportion, namely, one-third each. The aforesaid Family Agreement/Settlement was signed by the testator as well as his three sons, the petitioner and the respondent Nos.2 and 3 therein. The respondent Nos.4 to 7, the married daughters of the testator, had also appended their signatures on the agreement, which was drafted by an Advocate. It was made clear that the agreement would be binding upon all the members.

4. It is further asserted in the petition that since the deceased testator was growing old, with a view to ensure harmony in the family both during his lifetime as well as after his death, he had executed a TEST CASE.44/1999 and TEST CASE51/2004 Page 4 of 66 will dated 06.03.1992 in terms of which he had expressed his desire and bequeathed his immovable property in the following manner:- A. The respondent No.2, the eldest son, namely, Shri Mahavir Prasad was to become the complete owner of the portion of the said house wherein he was residing along with his family, which has been shown in ORANGE colour in the annexed site plan, which was at the ground, mezzanine and first floor of the house. B. The petitioner, the second son, namely, Shri Krishan Dass Gupta was to become the complete owner of the portion in his possession, which was shown in GREEN colour in the annexed site plan, which was at the ground, mezzanine, first and barsati floor.

C. The respondent No.3, the youngest son, namely, Shri Ram Kumar Gupta was to inherit the complete

ownership of the portions shown in RED in the annexed site plan, which was at the ground, mezzanine and barsati floor.

TEST CASE.44/1999 and TEST CASE51/2004 Page 5 of 66 D. Regarding the portions, such as, Chowk, Roof, Staircase, Water tank, Passage, etc. as shown and kept blank in the site plan, these were to remain in the common ownership of the three sons of the deceased testator.

5. It is the case of the petitioner that all this was done by the deceased testator with a view to ensure that after his death, his three married sons could continue to enjoy the ownership and possession of the portions in which they were residing during the lifetime of the deceased testator. Accordingly, the will dated 06.03.1992 was executed by the deceased testator, which was also got registered with the Sub-Registrar, Delhi on 17.03.1992 by the deceased testator himself. The said will is signed by the deceased testator and it is stated that the witnesses had appended their signatures after having seen the testator put his signatures as well as thumb impression thereon. The present petition had been filed to obviate any possible conflict amongst the brothers and to ensure that the wishes of the deceased testator are given full legal effect.

6. The respondent No.2, Shri Mahavir Prasad filed his reply to the aforesaid petition, wherein he admitted the execution of the registered TEST CASE.44/1999 and TEST CASE51/2004 Page 6 of 66 will dated 06.03.1992. He further admitted that before the execution of the said registered will dated 06.03.1992, the deceased Shri Bhikhu Ram Gupta along with all his legal heirs had entered into a Family Settlement dated 02.10.1991, whereby the shares of the legal heirs in the property belonging to late Shri Bhikhu Ram Gupta had been demarcated and all the legal heirs of the deceased had occupied and possessed their respective portions as per the Family Settlement. The respondent No.2 further stated that Shri Bhikhu Ram Gupta had expired on 04.10.1998 and was not in his senses for about six months before his death. He admitted that will dated 06.03.1992 had been registered on 17.03.1992 by his deceased father and stated that he had no objection to the grant of probate of the said will executed by his father.

7. The respondent Nos.4 and 7 filed identical replies to the reply filed by the respondent No.2, stating therein that they had no objection to the grant of probate of the will dated 06.03.1992.

8. Objections to the petition were filed by the respondent No.3 alone, opposing the grant of Letters of Administration of the will dated 06.03.1992 on the ground that the said will stood revoked by a TEST CASE.44/1999 and TEST CASE51/2004 Page 7 of 66 subsequent will dated 21st September, 1998 duly executed by late Shri Bhikhu Ram Gupta and attested by two attesting witnesses, viz., Shri Jagannath Aggarwal, husband of the respondent No.5, namely, Sheela Devi, resident of 2/7, East Punjabi Bagh-26 and Shri Vijay Kumar Gupta, resident of 18/16, Shakti Nagar, Delhi-7. It was asserted that it was specifically stated in the will dated 21.09.1998 that late Shri Bhikhu Ram Gupta had cancelled his earlier will dated 06.03.1992. Therefore, the petitioner?s claim for Letters of Administration deserved dismissal, as the will dated 06.03.1992 relied upon by the petitioner was cancelled/revoked under Section 70 of the Indian Succession Act, 1925 by a subsequent will dated 21.09.1998 of the testator, duly and validly executed by him and which was also properly attested and registered. It was alleged that the petitioner had intentionally concealed the material fact that late Shri Bhikhu Ram Gupta had executed his subsequent will dated 21.09.1998 in view of the fact that the respondent No.3, that is, Shri Ram Kumar Gupta had been made the sole beneficiary to the estate of late Shri Bhikhu Ram Gupta by virtue of his last will and testament. The requisite mutation in the records of the Municipal Corporation of Delhi had also been TEST CASE.44/1999 and TEST CASE51/2004 Page 8 of 66 made in the name of Shri Ram Kumar Gupta in respect of the property in question on 28.07.1999, which was in the knowledge and information of the petitioner and the other respondents from the very inception, and the same had never been challenged by any of them in any Court of law. Further, the said will dated 21.09.1998 was not only properly attested by two independent witnesses Shri Jagannath Aggarwal and Shri Vijay Kumar Gupta, but was also registered on 11.01.1999 before the Sub Registrar, Sub Division Sadar, Delhi and it was specifically mentioned by the deceased therein that he was cancelling/revoking his earlier will dated 06.03.1992.

9. It may be noted at this juncture that the respondent No.3 in the written statement/objections filed by him admitted that a document had been executed on 02.10.1991 purporting to be a Memorandum of Family Agreement/Settlement prior to the execution of the will dated 06.03.1992. However, it was stated that the said document not being registered was not admissible in evidence as the same was compulsorily registerable under the Indian Registration Act, 1908. It was further stated that because there was no oral family settlement prior to the written settlement, no partition could be made of the TEST CASE.44/1999 and TEST CASE51/2004 Page 9 of 66 property in question by the said document without the same having been registered. The present petition had been filed to harass and humiliate the respondent No.3, knowing fully well that the will dated 06.03.1992 had been revoked by the testator by his subsequent and last will dated 21.09.1998, in view of the fact that none else except the respondent No.3 had looked after him and cared for him during his last days when he was completely confined to bed and required personal care and comfort every moment, including fulfillment of his smallest desire for good food and day-to-day medical care and other needs.

10. It may be mentioned at this stage that pursuant to a preliminary objection raised by the respondent No.3 that the probate petition was not maintainable as there was no executor named in the will dated 06.03.1992, the petitioner sought amendment of the petition to convert the prayer for grant of probate to the prayer for grant of Letters of Administration. The said amendment was allowed by the Court by an order dated 24.10.2000 and thereafter amended written statement filed to the amended petition.

TEST CASE.44/1999 and TEST CASE51/2004 Page 10 of 66

11. In the replication filed by the petitioner to the written statement of the respondent No.3, it was submitted that the alleged will dated 21.09.1998 had been executed by the testator just prior to his death, that is, only 13 days before his death when the deceased was not in a position to use his mental and physical faculties and, as such, could not be said to have executed the same in a sound state of mind and/or of his own free will. It was submitted that the circumstances surrounding the execution of the alleged will itself show that the same had been procured by the respondent No.3 by exerting undue influence and/or by coercion, and as such, was void in terms of Section 61 of the Indian Succession Act. It was categorically denied that the petitioner was aware of the fact that the will dated 06.03.1992 (Ex.PW6/3) had been revoked and/or cancelled by the testator by way of a subsequent will dated 21.09.1998 set up by the respondent No.3. It was submitted that the will dated 21.09.1998 was apparently „bogus? and had been set up with the alleged thumb impression of the testator, though the testator used to sign important documents and not just put his thumb impression thereon. Even the registration of the said alleged will was after three months of the death of the testator. TEST CASE.44/1999 and TEST CASE51/2004 Page 11 of 66 There are also several contradictory statements in the will which were reflective of the fact that the will dated 21.09.1998 was not executed by the testator in a sound state of mind and/or of his own free will but under some undue influence and/or coercion. It was submitted that it was within the knowledge of everyone knowing the deceased that a few months before his death he had lost his mental balance. He was 86 years of age and in a poor physical condition. The possibility of procuring the thumb impression of the testator immediately at the time of the death also could not be ruled out as the testator never in his lifetime signed any document by only putting his thumb impression. The testator during his lifetime used to sign either in Hindi and/or in Urdu with which he was well conversant. Further, in the alleged last will dated 21.09.1998, the testator has stated "I have signed this will after having the same being read over and explained to me in Hindi" while, in fact, the will does not bear the signature of the testator and instead bears his thumb impression. Then again, it is submitted in paragraph 2 of the alleged will by the testator that this "is my first and last will" while in the latter part of the will the testator has stated: "I hereby cancel my will dated 06.03.1992". TEST CASE.44/1999 and TEST CASE51/2004 Page 12 of 66 Further, it was submitted that the registration of the will after the death of the testator, by the respondent No.3, itself shows the malafide intention of the respondent No.3 to grab the entire property of the deceased.

12. On the pleadings of the parties, the Court on 10.02.2003 framed the following issues for consideration:- "1. Whether the two Wills dated 06.03.1992 and 21.09.1998 which have been set up

by petitioner and respondent No.3

respectively are the valid Wills?

2. Whether the present petition is not

maintainable in view of Section 278(1)(d)

of the Indian Succession Act, 1925?

3. Whether the present petition is not

maintainable in view of Section 235 of

Indian Succession Act?

4. Whether the petition has been properly verified in the manner as provided in

Section 281 of Indian Succession Act,

1925?

5. Whether the Will dated 6.3.1992 has

been revoked/cancelled by the testator

Shri Bhiku Ram Gupta by his subsequent

Will dated 21.9.1998?

6. Whether the petitioner is entitled for Letter of Administration in respect of

Will dated 6.3.1992?

7. Whether the family settlement dated 2nd October, 1991 is valid and if so its

effect?

8. Relief?"

TEST CASE.44/1999 and TEST CASE51/2004 Page 13 of 66

13. After the framing of the aforesaid issues, the petitioner filed his affidavits by way of evidence and the case was set down for cross- examination of the petitioner?s witnesses. At this juncture, on 20 th November, 2004, the respondent No.3, Shri Ram Kumar Gupta filed Probate Case No.51/2004 praying for grant of Letters of Administration in respect of the estate of late Shri Bhikhu Ram Gupta on the basis of his last will dated 21.09.1998 in favour of the petitioner. Both the cases were ordered to be listed together on the no-objection given by the respondent No.3, Shri Ram Kumar Gupta.

14. It also deserves to be noted at this stage that the respondent No.3 admitted his signatures on the Family Settlement as well as the site plan attached with the Family Settlement before the Court on 30.01.2003 and the said documents were exhibited as Ex.P1/3 and Ex.P2/3. It was also noted by the Court that the other respondents had no objection to the grant of probate to the petitioner. So far as the documents of the respondent No.3 were concerned, that is, will dated 21.09.1998 and mutation letter dated 28.07.1999, the same were denied by the petitioner.

TEST CASE.44/1999 and TEST CASE51/2004 Page 14 of 66 TEST CAS. 51/2004

15. The aforesaid probate case instituted on 20th November, 2004 by the petitioner, Shri Ram Kumar Gupta (the respondent No.3 in Test Case No.44/1999), as already stated hereinabove, is premised on the alleged will of late Shri Bhikhu Ram Gupta dated 21.09.1998. The petitioner is the sole beneficiary/legatee under the said will to the exclusion of all other heirs of the deceased. The said will was duly registered on 11.01.1999 with the Sub-Registrar, Sub-Division Sadar, Delhi vide registration No.205, Book No.III, Volume No.28 on pages 194-197, after the demise of Shri Bhikhu Ram Gupta, who died on 04.10.1998.

16. The petitioner, who is the youngest son of the deceased testator, has set up a case that the deceased testator revoked/cancelled his earlier will dated 06.03.1998 by executing his subsequent and last will dated 21.09.1998, as it was only the petitioner, his wife and children who were serving the testator, late Shri Bhikhu Ram Gupta. It is asserted in the petition that late Shri Bhikhu Ram Gupta had even during his lifetime executed a General Power of Attorney in favour of the petitioner for dealing with his property at Shakti Nagar and TEST CASE.44/1999 and TEST CASE51/2004 Page 15 of 66 contesting the Court cases against the tenants for their eviction. Late Shri Bhikhu Ram Gupta during his lifetime had also filed an eviction petition bearing No.E120/1991 under Section 14(1)(h) of the Delhi Rent Control Act against Shri Murari Lal titled as "Bhikhu Ram Gupta vs. Murari Lal" and it was during the pendency of the said petition that late Shri Bhikhu Ram Gupta had executed a General Power of Attorney in favour of the petitioner Shri Ram Kumar Gupta. After the death of Shri Bhikhu Ram Gupta, on the basis of his last will dated 21.09.1998 and the aforesaid General Power of Attorney, the petitioner was substituted as petitioner in place of Shri Bhikhu Ram Gupta in the aforementioned eviction petition. The tenant Shri Murari Lal also expired during the pendency of the petition, and his legal representatives Shri Nanak Chand and others were substituted in his place. The said case was later on decided as SLP (Civil) No.9347/2004 titled as "Nanak Chand and Others vs. Ram Kumar Gupta", in favour of Shri Ram Kumar Gupta (the petitioner herein) vide orders dated 26.07.2004.

17. It is further stated on the basis of the last will dated 21.09.1998 of the testator, the petitioner had filed eviction petition No.E- TEST CASE.44/1999 and TEST CASE51/2004 Page 16 of 66 177/00/99 under Section 14(1)(a) of the Delhi Rent Control Act against Ms. Manju Gupta and Ms. Nimmi Gupta, tenants in respect of barsati floor of the suit premises, titled as "Ram Kumar Gupta vs. Shri Ram Kumar Gupta through LRs" and the same was decreed in favour of the petitioner vide orders dated 12.12.2003. The petitioner thereafter filed execution petition bearing No.2/04 against the aforesaid tenants, whereupon Ms. Nimmi Gupta had handed over the vacant and physical possession to the petitioner.

18. It is asserted that late Shri Bhikhu Ram Gupta had made the petitioner a nominee in the year 1985 with the Delhi Swastik Cooperative Urban Thrift and Credit Society Ltd., 26/102, Shakti Nagar, Delhi-110007 in the Society A/c. No.913 and had also opened a joint Saving Bank Account No.16772 in Canara Bank, Shakti Nagar Branch, Delhi with the petitioner in the year 1989. The respondent Nos.2 to 6 were fully aware of all the aforesaid facts and never raised any objection to the same and thus had given their implied consent to the last will dated 21.09.1998. After the death of Shri Bhikhu Ram Gupta, the intentions of the respondent No.3, Shri Krishan Dass Gupta (the petitioner in Test Case No.44/1999) became fraudulent TEST CASE.44/1999 and TEST CASE51/2004 Page 17 of 66 and, therefore, he filed a probate case before the Court relying upon the will dated 06.03.1992, which had been revoked in the last will dated 21.09.1998.

19. A reply to the aforesaid petition was filed by Smt. Sheela Devi, the respondent No.4 (the respondent No.5 in Test Case No.44/1999), stating that she had no objection if the relief prayed for by the petitioner was granted to him. No other reply was filed to the present petition nor any issues framed, presumably on the tacit understanding between the parties that both petitions, which involved identical facts, would be heard and tried together. It is on this basis that the case proceeded to trial.

Test Case Nos. 44/1999 and 51/2004

20. In the course of evidence recorded in Test Case No.44/1999, the petitioner examined PW1 Shri K.R. Sharma (one of the attesting witnesses to the will dated 06.03.1992), PW2 Shri Vijay Kumar Goel, PW3 Shri Bali Ram Gupta, PW4 Shri Lal Chand (the neighbours of the parties), PW5 Smt. Kamlesh Goel (daughter of the testator), apart from examining himself as PW6 Shri Krishan Dass Gupta. The respondent No.3 Shri Ram Kumar Gupta, examined RW2 Shri TEST CASE.44/1999 and TEST CASE51/2004 Page 18 of 66 Bhajan Lal Gupta (Manager, Delhi Swastik Cooperative Urban Thrift and Credit Society), RW3 Shri Arjun Singh (Record Keeper, MCD), RW4 Jai Narain (an official from the office of the Sub-Registrar, Kashmere Gate), RW5 Baldev Raj Batra (a clerk from the Canara Bank), RW6 Jagan Nath Aggarwal (one of the attesting witnesses to the will dated 21.09.1998) apart from examining himself as RW1.

21. In Test Case No.51/2004, the petitioner Shri Ram Kumar Gupta examined himself as PW1, PW2 Shri Jagan Nath Aggarwal (the attesting witness of will dated 21.09.1998), PW3 Shri Baldev Raj Batra (a clerk from the Canara Bank), PW4 Shri Bhajan Lal Gupta (Manager, Delhi Swastik Cooperative Urban Thrift and Credit Society) and PW5 Shri Arjun Singh (Record Keeper, MCD).

22. Detailed arguments were addressed by Mr. Prakash Gautam, the counsel for Shri Krishan Dass Gupta (the petitioner in Test Case No.44/1999), Mr. Jagjit Singh, the counsel for Shri Mahavir Prasad, Smt. Ram Kali and Smt. Kamlesh Goel (son and daughters of the deceased testator) and Mr. S.N. Gupta, the counsel for Mr. Ram Kumar Gupta (objector).

TEST CASE.44/1999 and TEST CASE51/2004 Page 19 of 66

23. After hearing the parties at length and scrutinizing the entire evidence on record, my findings on the issues which were framed in Test Case No.44/1999 and are common to both the probate petitions are recorded below. For the sake of convenience and to avoid prolixity, the issues are not being dealt with in seriatim and it is proposed to first deal with Issue Nos.2, 3 and 4 which relate to the preliminary objections raised against the maintainability of the petition premised on the will dated 06.03.1992 and thereafter to deal with Issue No.7 pertaining to the admissibility of the Family Settlement and then with Issue Nos.1, 5 and 6 relating to validity of the two wills propounded in the two petitions.

24. ISSUE NO.2

"2. Whether the present petition is not

maintainable in view of Section 278(1)(d) of the Indian Succession Act, 1925?"

25. The aforesaid issue was framed in view of preliminary objection No.4 raised in the written statement of the respondent No.3, which reads as follows:-

"4. That the said Letters of Administration

case is also not maintainable because the

petitioner has not complied with Section

276(1)(d) of Indian Succession Act, 1925 which TEST CASE.44/1999 and TEST CASE51/2004 Page 20 of 66 states that the amounts of assets which are

likely to come to the petitioner's hand must be stated and annexed in the petition."

26. The aforesaid preliminary objection was not pressed at the time of arguments. In any case, the onus of proving the issue was upon the respondent No.3 and he miserably failed to discharge the same. This issue is accordingly decided against the respondent No.3.

27. ISSUE No.3

"3. Whether the present petition is not

maintainable in view of Section 235 of Indian Succession Act?"

28. The aforesaid issue was framed pursuant to preliminary objection No.6 in the written statement of the respondent No.3 and the onus of proving the same was squarely upon the respondent No.3.

29. For the purpose of deciding the aforesaid issue, it is necessary to advert to the provisions of Section 235 of the Indian Succession Act, 1925, which read as follows:-

"235. Citation before grant of administration to legatee other than universal or residuary.- Letters of administration with the Will

annexed shall not be granted to any legatee

other than an universal or a residuary legatee, until a citation has been issued and published in the manner hereinafter mentioned, calling on TEST CASE.44/1999 and TEST CASE51/2004 Page 21 of 66 the next-of-kin to accept or refuse letters of administration."

30. Mr. S.N. Gupta, the learned counsel for the respondent No.3/objector, on the basis of the provisions of the aforesaid Section strenuously contended that the said Section mandates that Letters of Administration with the will annexed shall not be granted to any legatee, until a general citation has been issued and published calling on the next-of-kin to accept or refuse the said Letters of Administration. Reliance was placed by him upon the judgment of the Bombay High Court in the case of B.B. Paymaster and Others vs. Mrs. Baurawa Sangappa Kodapatti and Others, AIR 2005 Bombay 48, wherein a learned Single Judge of the Bombay High Court with reference to the provisions of Section 283 of the Succession Act (39 of 1925) relating to issuance of citation made the following observations:-

"The section vests a discretion in the Judge in the matter of issuing citations. The said

discretion is required to be exercised with

utmost care considering the fact that the finding of the Probate Court as regards execution of the Will operates in rem. In a case where

Probate of a Will is asked for, a special citation ought to be served upon those persons whose

interests are directly affected by the Will. The TEST CASE.44/1999 and TEST CASE51/2004 Page 22 of 66 practice of issuing only a general citation and ordering publication thereof in a newspaper or ordering affixing the citation in conspicuous part of Court house may tend to encourage

fraud. Though the section does not make it

obligatory to serve a special citation, it is desirable to serve special citation on the

persons who would have been entitled to inherit the property of the deceased as per the law of intestate succession and who have been

excluded from succession by the Will.

Whenever it is disclosed in the Probate Petition itself that there are persons claiming to have any interest in the estate of the deceased, the Court will have to exercise discretion under Section 283 by directing service of citation on such persons.

9. ........................... A Court of Probate has to act cautiously and with utmost care.

When the learned trial Judge has taken a note of the fact that the said close relatives of the deceased were alive who may be interested in the estate of the deceased as they were her

heirs as per the said Act of 1956, he ought to have issued citations to the said persons named in the Probate Application."

31. Mr. Prakash Gautam, the learned counsel for the petitioner, on the other hand, contended that Section 235 has no application to a case where a legatee applies for Letters of Administration, and most certainly has no application to a case when special citation had been issued to all the legal representatives of the deceased and it was no one?s case that any person who would have been entitled to inherit the TEST CASE.44/1999 and TEST CASE51/2004 Page 23 of 66 property of the deceased as per the law of intestate succession was not before the Court. The object of issuance of citation, it was contended, was to ensure that all those with beneficial interest in the estate of the deceased were represented before the Court. In the present petition, it was not the case of the respondent No.3/objector that there was any other person having a beneficial interest in the estate who was not represented before the Court, and in any case he was estopped from raising such a plea in view of the fact that though general citation by publication in a newspaper had been issued in the petition filed by him, being Test Case No.51/2004, no other person had come forward to raise a claim to the estate of the deceased. Reliance was placed by Mr. Gautam upon the following Division Bench judgment of the Madras High Court in Soundararaja Peter and Others vs. Florance Chellaih and Others, AIR 1975 Madras 194. In paragraph 7 of the said decision, the Madras High Court discussed the law with regard to Section 235 of the Succession Act as follows:- "The only further question is whether she can get letters of administration without the citation and the publication in the manner contemplated by Section 235. Section 235 specifically refers to the case of an universal or a residuary

legatee applying for letters of administration TEST CASE.44/1999 and TEST CASE51/2004 Page 24 of 66 and prohibits the grant of letters of

administration unless citation has been issued and published in the manner prescribed. On the face of it Section 235 does not apply to a case where a legatee applies for letters of

administration. Apart from this, when all the legatees are before the Court and there being no other person having beneficial interest

under the Will, no citation or publication

appears to be necessary having regard to the object of such a citation and publication.

Admittedly in this case all the legatees

mentioned in the will in question are before court and they are the plaintiff and defendants 4 to 6. Defendants 4 to 6 have not raised any objection for the grant of either probate or letters of administration to the plaintiff and they in fact sail together. It is only defendants 1 to 3 who get no beneficial interest under the Will who are questioning the grant of probate or

letters of administration. Therefore Section 235 does not stand in the way of the grant of letters of administration in favour of the plaintiff in the circumstances of this case."

32. The objection with regard to issuance of citation by publication raised by the learned counsel for the respondent No.3, in my opinion, is wholly misconceived. It is well settled that want of citation by itself will not vitiate the grant of probate/Letters of Administration. All the more so, in a case where the omission to issue citation has not resulted in prejudice to any person who claims a beneficial interest in the estate of the deceased. It also cannot be lost sight of that the law TEST CASE.44/1999 and TEST CASE51/2004 Page 25 of 66 vests a judicial discretion in the Court to revoke a grant where the Court may have prima facie reason to believe that the omission to issue citation has resulted in injustice to a party (or parties) who ought to have been cited, and for this reason it is necessary to have the will proved afresh in the interest of such a party (or parties). In the present case, it is not even the contention of the respondent No.3/objector that all the parties having beneficial interest in the estate of the deceased testator are not before the Court. In these circumstances, there can be no question of prejudice having been caused to anyone by the omission to issue citation in newspapers and want of citation, thus, will not bar the grant of Letters of Administration to the petitioner, subject of course to the petitioner establishing the genuineness of the will propounded by him.

33. Issue No.3 is accordingly decided in the negative against the respondent No.3.

34. ISSUE NO.4

"4. Whether the petition has been properly

verified in the manner as provided in Section 281 of Indian Succession Act, 1925?"

TEST CASE.44/1999 and TEST CASE51/2004 Page 26 of 66

35. The aforesaid issue was framed in view of the preliminary objection No.2, having been taken by the respondent No.3 that the petition is not maintainable because the petition is not properly verified in the manner and to the effect as provided in Section 281 of the Indian Succession Act, 1925. At the time of hearing, however, this issue was not seriously pressed, presumably for the reason that it is settled law that the provisions of Section 281 are not mandatory but only directory and no petition can be dismissed on the score that it is filed without the verification of at least one of the two attesting witnesses to the will.

36. In the case of Nand Kishore Rai and Another vs. Mst. Bhagi Kuer and Others, AIR 1958 All 329, it was observed as under: "Verification of a petition required under S. 281 similar to verification required of pleadings, including a plaint, under O.6 R.15, Civil

Procedure Code and has no greater effect or

value. Omission to verify, or defective verification of, a pleading is a mere irregularity within S.99.C.P.C., and is never fatal. The provision of S. 281 of the Succession Act is less drastic than that of O.6 R.I 5 and an omission to verify, or a defective verification of, a petition for probate cannot have a more serious effect than that of a plaint. The provision in S.281 is merely directory and not mandatory, i.e. non-compliance with it is TEST CASE.44/1999 and TEST CASE51/2004 Page 27 of 66 not intended to lead to the rejection of the petition."

37. Apart from the aforesaid legal position, it was pointed out by the learned counsel for the petitioner that the original petition filed by the petitioner, Shri Krishan Dass Gupta was duly verified by one of the attesting witnesses to the will, namely, Mr. I.L. Bansal by filing an affidavit in this regard.

38. In view of the above, this issue needs no further consideration and must of necessity be decided in the affirmative.

39. ISSUE NO.7

"7. Whether the family settlement dated 2nd

October, 1991 is valid and if so its effect?"

40. At the outset, it may be noted that the family settlement dated 2nd October, 1991 and the site plan annexed thereto (Ex.P1/3 and Ex.P2/3) have been proved in evidence by PW6 Shri Krishan Dass Gupta, in the course of his testimony, as Ex.PW6/1 and Ex.PW6/2 respectively. In the entire pleadings of the objector, there is no specific denial to the execution of the family agreement/settlement as well as the site plan, which bears the signatures of the petitioner as well as of all the respondents, that is, the three sons and the four TEST CASE.44/1999 and TEST CASE51/2004 Page 28 of 66 daughters of late Shri Bhikhu Ram Gupta. The aforesaid documents also bear the signatures of late Shri Bhikhu Ram Gupta on each and every page and thus there can conceivably be no doubt about the authenticity of the said documents.

41. Mr. S.N. Gupta, the learned counsel for the respondent No.3/objector has, however, argued that the family settlement is of no consequence being inadmissible in evidence, in view of the fact that it falls in the category of documents which require compulsory registration, but is admittedly unregistered. Mr. Prakash Gautam, the learned counsel for the petitioner, on the other hand, relying upon the three Judge Bench judgment of the Supreme Court in the celebrated case of Kale and Others vs. Deputy Director of Consolidation and Others, AIR 1976 SC 807, contended that though indubitably under Section 17 of the Registration Act, a document creating or extinguishing a right, title or interest in immovable property requires compulsory registration and in the absence thereof cannot be relied upon to assert a right, title or interest in immovable property, but this is part of substantive law. The law of evidence recognizes estoppel, and thus an unregistered family settlement which bonafide resolves TEST CASE.44/1999 and TEST CASE51/2004 Page 29 of 66 family disputes by a fair and equitable distribution of the properties, if acted upon by the parties, the doctrine of estoppel can be invoked to estop a party from urging to the contrary. The following pertinent observations in Kale's case (supra) were relied upon:- "40. .............................Assuming, however, that said document was compulsorily

registrable the Courts have generally held that a family arrangement being binding on the

parties to it would operate as an estoppel by preventing the parties after having taken

advantage under the arrangement to resile from the same or try to revoke it. This principle has been established by several decisions of this Court as also of the Privy Council. In Kanhai Lal v. Brij Lal, 45 Ind App 118 at p.124 =

(AIR 1918 PC 70 at p.74) the Privy Council

applied the principle of estoppel to the facts of case and observed as follows:

"Kanhai Lal was a party to that

compromise. He was one of those whose

claims to the family property, or to

shares in it, induced Ram Dei, against

her own interests and those of her

daughter, Kirpa, and greatly to her own

detriment, to alter her position by

agreeing to the compromise, and under

that compromise he obtained a

substantial benefit, which he has hitherto

enjoyed. In their Lordships' opinion he is

bound by it, and cannot claim as a

reversioner.

TEST CASE.44/1999 and TEST CASE51/2004 Page 30 of 66

41. In the decision reported as AIR 1972 SC

2069, S. Shanmugam Pillai vs. K.

Shanmugam Pillai, Their Lordships observed:

"Equitable principles such as estoppel,

election, family settlement, etc. are not

mere technical rules of evidence. They

have an important purpose to serve in the

administration of justice. The ultimate

aim of law is to secure justice. In the

recent time in order to render justice

between the parties, courts have been

liberally relying on those principles."

42. Dealing with the issue of estoppel where a party challenges a family settlement by and under a document which requires registration, Their Lordships in Kale's case (supra) proceeded to elucidate the law as follows:-

"The High Court further erred in law in not

giving effect to the doctrine of estoppel which is always applied whenever any party to the valid family settlement tries to assail it. The High Court further erred in not considering the fact that even if the family arrangement was not

registered it could be used for a collateral purpose, namely, for the purpose, of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the

settlement keep their mouths shut for full seven years and later try to resile from the settlement. In Shyam Sunder v. Siya Ram, AIR 1973 All

382, 389 it was clearly held by the Allahabad TEST CASE.44/1999 and TEST CASE51/2004 Page 31 of 66 High Court that the compromise could have

been taken into consideration as a piece of

evidence even if it was not registered or for that matter as an evidence of an antecedent title. The High Court observed as follows:

The decision in Ram Gopal v. Tulshi

Ram, AIR 1928 All 641 (FB) is clear

that such a recital can be relied upon as

a piece of evidence.

x x x x x

It is clear, therefore, that the compromise

can be taken into consideration as a

piece of evidence.

x x x To sum up, therefore,

we are of the view that the compromise

could have been relied upon as an

admission of antecedent title."

43. The learned counsel for the petitioner also referred to and relied upon the judgment of a learned Single Judge (Hon?ble Mr. Justice Pradeep Nandrajog) of this High Court in the case of Amarjeet Lal Suri vs. Moti Sagar Suri & Ors., 119 (2005) DLT 295, wherein the Court after referring to the law laid down by the Supreme Court in Kale's case (supra) held as follows:-

"44. A bona fide family settlement which

resolves family disputes and rival claims by a fair and equitable division of the properties, if acted upon would bind the parties and even if partition is under an unregistered document, the document is evidence of conduct of the

parties. Estoppel can be invoked to estop a

party from urging to the contrary."

TEST CASE.44/1999 and TEST CASE51/2004 Page 32 of 66

44. In the case of Tek Bahadur Bhujil vs. Debi Singh Bhujil and Others, AIR 1966 SC 292, the Supreme Court enunciated the law with regard to family arrangement as follows:- "12. Family arrangement as such can be

arrived at orally. Its terms may be recorded in writing as a memorandum of what had been

agreed upon between the parties. The

memorandum need not be prepared for the

purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the

arrangement is brought about by the document as such, that the document would require

registration as it is then that it would be a document of title declaring for future what

rights in what properties the parties possess. The document Exhibit 3 does not appear to be of such a nature. It merely records the

statements which the three brothers made, each referring to others as brothers and referring to the properties as joint property. In fact the appellant, in his statement, referred to

respondents 1 and 2 as two brother co-

partners; and the last paragraph said:

"We, the three brothers, having agreed

over the above statement and having

made our own statements in the presence

of the Panch called by us, and signed and

TEST CASE.44/1999 and TEST CASE51/2004 Page 33 of 66 kept a copy of each of this document as

proof of it."

The document would serve the purpose of proof or evidence of what had been decided between the brothers. It was not the basis of their rights in any form over the property which each

brother had agreed to enjoy to the exclusion of the others. In substance it records what had already been decided by the parties. We may

mention that the appellant and respondent No. 1, even under this arrangement, were to enjoy the property in suit jointly and it is this

agreement of theirs at the time which has later given rise to the present litigation between the two. The document, to our mind, is nothing but a memorandum of what had taken place and,

therefore, is not a document which would

require compulsory registration under Section 17 of the Registration Act."

45. In view of the aforesaid law laid down by the Supreme Court in Tek Bahadur Bhujil's case (supra), the validity of the family settlement dated 2nd October, 1991 in the present case cannot be questioned on the ground that it required registration. The respondent No.3, who has acted upon and availed of the benefits of the family settlement, cannot be allowed to urge to the contrary and is in fact estopped from doing so. The document being nothing but a memorandum of what had taken place, the document would not require compulsory registration under Section 17 of the Registration TEST CASE.44/1999 and TEST CASE51/2004 Page 34 of 66 Act. It is also equally well settled that a compromise of family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement clinches and defines what that title is (Sahu Madho Das and Others vs. Mukhand Ram and Anr., AIR 1955 SC 481). If this line of reasoning is accepted as it was in the case of Tek Bahadur Bhujil (supra), the necessary corollary is that by family arrangement no title passes from one in whom it resides to the person receiving it and as no title passes no conveyance is necessary.

46. In view of the aforesaid, I have no hesitation in upholding the validity of the family settlement which, it is stated, at the risk of repetition, was nothing but a memorandum of what had already taken place between the parties. It is not in dispute that the parties were living in their demarcated portions prior to their entering into the family settlement. It is also the undisputed position that the parties continue to do so till date. It is, therefore, too late in the day to challenge the sanctity of the family settlement. As noticed above, rules of evidence recognize estoppel. Substantive law and the law of evidence of which the rules of estoppel are an integral part, operate in TEST CASE.44/1999 and TEST CASE51/2004 Page 35 of 66 their respective fields. A conveyance of title requires registration of the written instrument but a grant may be fed by estoppel and may confer sanctity to even an oral agreement between the parties, initially acted upon by the parties, acquiesced in and taken advantage of, but later on sought to be discarded on the ground that it lacked registration under the substantive law.

47. Issue No.7 is accordingly decided by upholding the family settlement. The effect of upholding its validity, needless to state, is that it lends authenticity to the will dated 6th March, 1992 as the said will is on identical lines with the family settlement and the will having been executed less than six months of the family settlement leads to the inference that the testator merely executed the will to place matters beyond the pale of controversy and with a view to clinch the whole matter.

48. ISSUE NOS.1, 5 and 6

ISSUE NO.1

"1. Whether the two Wills dated 06.03.1992

and 21.09.1998 which have been set up by

petitioner and respondent No.3 respectively are valid Wills?"

TEST CASE.44/1999 and TEST CASE51/2004 Page 36 of 66 ISSUE NO.5

"5. Whether the Will dated 6.3.1992 has

been revoked/cancelled by the testator Shri

Bhiku Ram Gupta by his subsequent Will dated 21.9.1998?"

ISSUE NO.6

"6. Whether the petitioner is entitled for

Letter of Administration in respect of Will dated 6.3.1992?"

49. All the aforesaid issues are being dealt with together as common questions of fact and law are involved.

50. At the outset, it may be noted that though an application for clubbing of both the probate cases was filed by the respondent No.3, Shri Ram Kumar Gupta along with permission for joint trial and evidence, being IA No.2902/2005 (in Test Case No. 51/2004), no formal orders were passed thereon. However, various orders passed by the Court from time to time, including order dated 11.05.2006, reflect that both the cases were directed to be listed and tried together having regard to the overlapping issues in the two cases, which relate to the two wills purportedly executed by late Shri Bhikhu Ram Gupta. Later, an application being, I.A. No. 12870/2011 was also filed by TEST CASE.44/1999 and TEST CASE51/2004 Page 37 of 66 Krishan Das Gupta seeking appropriate orders/directions with the prayer for clubbing of both the testamentary petitions, wherein vide order dated 16.08.2011, again a direction was passed by this Court for listing the two matters together.

51. Further, issues arising out of both the testamentary cases were framed in TEST. CASE No.44/1999 and issues were not separately framed in TEST. CASE No.51/2004. The entire evidence was also recorded in the first case, both with regard to the will dated 06.03.1992 and with regard to the will dated 21.09.1998. Then again, though separate affidavits by way of evidence were filed in both the cases, all the witnesses were cross-examined only in TEST. CASE No.44/1999.

52. Adverting first to the will dated 06.03.1992, it is the case of the petitioner Shri Krishan Dass Gupta that the said will was executed by the testator to ensure that the Family Agreement/Settlement arrived at on 02.10.1991 remained effective even after his death. As noticed hereinabove, the said Family Settlement as well as the site plan annexed therewith is signed by the testator as well as by all the seven progeny. It is mentioned in the aforesaid Family Settlement that the TEST CASE.44/1999 and TEST CASE51/2004 Page 38 of 66 same was arrived at after "mutual discussions", and it is an undisputed fact that the said Family Settlement was acted upon during the lifetime of the testator and even after his demise.

53. In the pleadings filed by him, Shri Ram Kumar Gupta, who has propounded the will dated 21.09.1998, has admitted the Family Agreement/Settlement as well as the site plan annexed therewith. Further, there is no denial by him to the execution and registration of the will dated 6th March, 1992 (Ex.PW6/3). His only contention is that the earlier will, that is, the will dated 6 th March, 1992 had been superseded by the subsequent will dated 21.09.1998 executed by his father during his last days. It may be noted that even otherwise the execution of the will dated 06.03.1992 stands duly proved on record through the testimonies of PW1 Shri K.R. Sharma, an attesting witness to the will, who has categorically deposed that late Shri Bhikhu Ram Gupta signed the will in his personal presence as well as in the presence of another witness Shri I.L. Bansal, who also signed the will in his presence as a witness to the making of the said will. He further stated that he had personally gone to the Tis Hazari Courts on 17.03.1992 along with late Shri Bhikhu Ram Gupta for getting the TEST CASE.44/1999 and TEST CASE51/2004 Page 39 of 66 will registered in the Court records. The testimony of this witness has emerged unshaken after his cross-examination, in the course of which he stated that the testator had signed on every page of the will. As noticed hereinabove, the other attesting witness to the will was Shri I.L. Bansal, who has filed his affidavit in support of the petition. The will dated 06.03.1992 propounded by Shri Krishan Dass Gupta [apart from the fact that it has not been denied by Shri Ram Kumar Gupta, who is the sole objector in TEST CASE No.44/1999 to the grant of Letters of Administration] thus stands duly proved.

54. As regards the will dated 21st September, 1998 propounded by Shri Ram Kumar Gupta, the said will is stated to be attested by two witnesses, namely, Shri Jagannath Aggarwal, husband of Smt. Sheela Devi, one of the daughters of the testator, and one Shri Vijay Kumar Gupta, neighbor of the testator. In order to prove the said will, RW-6 Shri Jagannath Aggarwal filed his affidavit by way of evidence to state that he was a witness to the will dated 21.09.1998 (Ex.RW-3/1) and had signed the same in the presence of Shri Vijay Kumar Gupta and the testator; and Shri Vijay Kumar Gupta had also signed the same in his presence as a witness. He further deposed that the testator TEST CASE.44/1999 and TEST CASE51/2004 Page 40 of 66 had put his thumb impression upon the said will in his presence and in the presence of Shri Vijay Kumar Gupta in his full conscience (sic. consciousness) and at the time of execution of the said will, the testator was mentally fit and knew the repercussions of the said will. In the said will, he stated, all the sons and daughters except the deponent (sic. Shri Ram Kumar Gupta) were excluded from the inheritance to the estate of Shri Bhikhu Ram Gupta. He further deposed that Shri Bhikhu Ram Gupta "being bed ridden and ill" was very weak at the time of the execution of the said will dated 21.09.1998 and his hand used to shake while writing or signing, therefore, late Shri Bhikhu Ram Gupta had put his thumb impression on the said will. He along with Shri Vijay Kumar Gupta and Shri Ram Kumar Gupta had gone to the office of the Sub-Registrar for the registration of the will.

55. In the course of his cross-examination, however, RW-6 Shri Jagannath Aggarwal admitted that before signing the will he had not read the will. Late Shri Bhikhu Ram Gupta had told him that he had prepared a will and he (Shri Jagannath Aggarwal) signed the same without any enquiry as the testator was his father-in-law. On a query TEST CASE.44/1999 and TEST CASE51/2004 Page 41 of 66 put to him, he stated that he had signed on the last page of the will only once. However, on being confronted with the certified copy of the will dated 21.09.1998, which was filed along with the written statement of Shri Ram Kumar Gupta, he stated that both the signatures at Mark „X? were his signatures. In further cross- examination, he stated that one of the two thumb impressions on the original will (Ex.RW-3/1) at page 4 at Point „M? was the thumb impression of late Shri Bhikhu Ram Gupta and he could not say who had affixed the other thumb impression at Point „N?.

56. Apart from examining Shri Jagannath Aggarwal (RW-6) as the attesting witness of the will dated 21.09.1998, Shri Ram Kumar Gupta examined himself as RW-1. In his affidavit by way of evidence, he stated:

"That during his lifetime of Shri Bhiku Ram

Gupta executed a will dated 06.03.1992.

However, during his last days Shri Bhiku Ram Gupta executed another will dated 21.09.1998, thereby revoking the earlier will dated

06.03.1992 in the subsequent will dated

21.09.1998 itself."

57. In cross-examination, however, RW-1 Shri Ram Kumar Gupta took a somersault and stated:-

TEST CASE.44/1999 and TEST CASE51/2004 Page 42 of 66 "In will dated 06.03.1992, I do not know what was my share in that will. I had no knowledge of any will dated 06.03.1992 during the lifetime of my father."

58. In his affidavit by way of evidence, RW-1 stated that late Shri Bhikhu Ram Gupta in his will dated 21.09.1998 had not provided any right/interest in his estate to any of his sons and daughters and had made him the sole beneficiary because:-

"...................in the last days of Shri Bhiku Ram Gupta, none else except the deponent

looked after and cared Shri Bhiku Ram Gupta, as at that time he was completely confined to his room and bed permanently and required

personal care and comfort every moment

including his smallest desire of good

food........"

59. In his cross-examination, however, he stated that:- "the condition of my father was good before

his death. Due to old age, he was weak. The

relations during the lifetime of my father with other sons were normal."

60. In further cross-examination, Shri Ram Kumar Gupta stated that the registration of the will had been got effected after the demise of his father on 11.01.1999 on account of the fact that due to ill health/old age, his father was not in a position to go to the Sub- Registrar for registration. He admitted that the will was not executed TEST CASE.44/1999 and TEST CASE51/2004 Page 43 of 66 in his presence and he could not say who had drafted the will. He categorically denied the suggestion that his father had lost his memory during his last days and the further suggestion that the will had been got executed by him by exerting undue influence and by fraud.

61. Apart from examining himself as the propounder of the will, Shri Ram Kumar Gupta produced in the witness box RW-2 Bhajan Lal Gupta, the Manager of - The Delhi Swastik Cooperative Urban Thrift and Credit Society Ltd., who proved on record the membership of the testator in the said society vide membership No.913 as reflected in document dated 29.10.1977 (Ex.RW-2/1) and who deposed that Shri Ram Kumar Gupta was the nominee of the said membership account of Shri Bhikhu Ram Gupta. The witness proved on record the application for change of membership dated 18.03.1991 as Ex.RW-2/2, copy of the resolution of the Managing Committee dated 20th March, 1991 as Ex.RW-2/3, the loan application of Shri Bhikhu Ram Gupta as Ex.RW-2/4, the loan bond as Ex.RW-2/5, another loan application as Ex.RW-2/6 and loan bond as Ex.RW-2/7. He also proved on record a certificate to the effect that the remaining TEST CASE.44/1999 and TEST CASE51/2004 Page 44 of 66 loan amount of ` 20,110/- was paid by Shri Ram Kumar Gupta as Ex.RW-2/8, out of which ` 10,806/- was paid by Shri Ram Kumar Gupta and the balance of ` 10,304/- was adjusted from the membership fund of late Shri Bhikhu Ram Gupta.

62. Shri Ram Kumar Gupta next produced in the witness box RW-3 Arjun Singh, Record Keeper, Municipal Corporation of Delhi, who proved on record letter Ex.RW-3/2, whereby the property of late Shri Bhikhu Ram Gupta stood mutated in the name of Shri Ram Kumar Gupta. In cross-examination, however, the witness admitted that as per the records of the MCD, objection to the mutation had been received on behalf of Shri Krishan Dass Gupta on 15.09.1999, on which no action had been taken by the MCD.

63. RW-4 Shri Jai Narain from the office of the Sub-Registrar, Kashmere Gate, Delhi was next summoned in the witness box to prove on record Ex.RW-3/1, that is, the will dated 21.09.1998 registered on 11.01.1999. In the course of his cross-examination, however, it was admitted by the witness that there were no signature of the attesting witnesses on the original will dated 21.09.1998, but TEST CASE.44/1999 and TEST CASE51/2004 Page 45 of 66 there were signatures of the attesting witnesses on the record file. In further cross-examination, RW-4 admitted that:- "The page No.4 of the Will Ex.RW-3/1 does not tally with the office record. As per office record available with me on page No.4 bears both

additional two signatures of each witness and one thumb impression."

64. RW-5 Baldev Raj Batra, a clerk from the Canara Bank was also summoned to prove on record the Account Opening Form of Saving Account No.16772 stated to be a joint account of Shri Bhikhu Ram Gupta and Shri Ram Kumar Gupta as Ex.RW-5/A. He proved on record the statement of account for the period from 01.01.2006 to 17.04.2006 as Ex.RW-5/B and in cross-examination stated that the bank had not been informed about the death of the account holder Shri Bhikhu Ram Gupta (who died on 04.10.1998).

65. Relying upon the testimonies of the aforesaid witnesses, the learned counsel for Shri Ram Kumar Gupta strenuously urged that the execution of the will dated 21.09.1998 stood conclusively proved whereunder Shri Ram Kumar Gupta had been made the sole beneficiary to the estate of his father, who, all along had favoured his younger son, as was clear from the fact that he had given him a TEST CASE.44/1999 and TEST CASE51/2004 Page 46 of 66 General Power of Attorney in his favour on the basis of which the eviction order (Ex.PW-1/5) was obtained, evicting the tenant. The father had also chosen to open a joint bank account with him and to nominate him for the membership of the Cooperative Society of which he was the member. He further urged that a false case was sought to be set up by Shri Krishan Dass Gupta that the deceased was not in a sound disposing mind at the time of the execution of the will of 1998 though the existence of the said will was not denied by the other legal representatives of the deceased.

66. Rebutting the aforesaid contentions raised on behalf of Shri Ram Kumar Gupta, Mr. Prakash Gautam, Advocate on behalf of Shri Krishan Dass Gupta submitted that the entire story of execution of the will dated 21.09.1998 was shrouded in suspicious circumstances. The alleged will had been executed just prior to the death of late Shri Bhikhu Ram Gupta, that is, only 13 days prior to his death, when the deceased was not in a position to use his mental and physical faculties, and as such, could not be said to have executed the will in sound state of mind and/or of his own free will. The will had been set up with the alleged thumb impression of the testator though the TEST CASE.44/1999 and TEST CASE51/2004 Page 47 of 66 testator used to sign important papers and not just affix his thumb impression, as was clear from the fact that the Family Settlement and the will dated 6th March, 1992 were signed by the testator on each and every page of the same. This singular circumstance was sufficient to prove that the will in question was a "bogus" one. It was for the respondent No.3 to establish that the will set up by him had been executed by the testator in a sound state of mind and of his own free will and not under any undue influence and/or coercion. This the respondent No.3 had miserably failed to establish. From a bare perusal of the will dated 21.09.1998, it was clear that the signature of the witnesses as well as the thumb impression of the testator had been obtained fraudulently and/or on a blank sheet of paper either under duress, coercion and/or while the testator was not in a sound state of mind. The possibility of procuring the thumb impression of the testator immediately at the time of his death also could not be ruled out as the testator never in his lifetime signed any document by putting his thumb impression and was always signing each and every document either in Hindi and/or in Urdu, with which he was well conversant. Even in the alleged will set up by the respondent No.3, TEST CASE.44/1999 and TEST CASE51/2004 Page 48 of 66 the testator has stated: "I have signed this will after having the same being read over and explained to me in Hindi" though the will does not bear the signature of the testator, and instead his thumb impression purports to be affixed.

67. Mr. Jagjit Singh, the learned counsel for the respondent Nos.2, 4 and 7 in support of the aforesaid contentions of the learned counsel for the petitioner urged that in the light of the evidence on record that the testator used to affix his signatures on each and every document, it was incumbent upon the propounder of the will dated 21.09.1998 to have examined an expert witness to prove the thumb impression of the deceased testator on the will. This was rendered all the more imperative on account of the fact that the said will was executed 13 days before the death of the testator, when he had admittedly lost all his faculties and even according to the objector Shri Ram Kumar Gupta was confined to bed on a permanent basis, was wetting his bed, had shaking hands and limbs, and according to the testimonies of PWs 1 to 6 had lost his memory and was unable to identify even the family members.

TEST CASE.44/1999 and TEST CASE51/2004 Page 49 of 66

68. Mr. Singh also highlighted the fact that not only was the will executed 13 days before the death of the testator, it was registered not during the lifetime of the testator but three months after his death, and all this further renders the execution thereof suspicious. Even otherwise, it was highly improbable that late Shri Bhikhu Ram Gupta who throughout his lifetime had acted upon the Family Settlement dated 02.10.1992 and had executed the will dated 6th March, 1992 to ensure its implementation would have changed his will just 13 days prior to his death, and that too in the absence of any family member. Mr. Singh highlighted that while will dated 06.03.1992 had been executed by the testator and got signed by him from each and every member of his family, that is, all his seven children, the will dated 21.09.1998 sought to be propounded by the objector was not signed by any sibling of the objector. Further, the objector in his testimony had admitted that no family member was present at the time of the execution of the will. Only the two attesting witnesses Shri Jagannath Aggarwal and Shri Vijay Kumar Gupta, according to the objector, were present at the time of the signing of the will. Further, though the attesting witness to the will, Shri Jagannath Aggarwal is the husband TEST CASE.44/1999 and TEST CASE51/2004 Page 50 of 66 of one of the daughters of late Shri Bhikhu Ram Gupta, namely, Smt. Sheela Devi, the latter has neither chosen to object to the grant of Letters of Administration in respect of the will dated 06.03.1992, nor has appeared in the witness box to support the will dated 21.09.1998, but has remained a stoically silent s
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
Hello,
 H. Venkatachala Iyengar v. B.N. Thimmajamma 1959
Supp (1) SCR 426,

SANTOSH DUTTA Vs SURENDER KRISHAN BALI & ANR   Delhi High Court

ANITA KHOSLA v. STATE 2010 173 DLT 290      Delhi HC

. Under Section 68 of the Indian Evidence Act, 1872 (‘IE Act’) at
least one attesting witness has to be called for the purposes of proving the execution of the document, if such attesting witness is alive

Hope this helps.
S J Mathew
Advocate, Mumbai
1954 Answers
65 Consultations
5.0 on 5.0
Hi,
 there are many Supreme court ruling  where court observed that registration of WILL is not necessary to decide the genuineness of the WILL. Some of the rulings are . Copy paste these links and down load/print the ruling. 

1. Mahesh Kumar (D) By Lrs vs Vinod Kumar & Ors on 13 March, 2012

 2. Uma Devi Nambiar v. T. C. Sidhan (2004) 2 SCC 321,

 3. .Sridevi v. Jayaraja Shetty (2005) 2 SCC 784, 

4.Pentakota Satyanarayana v. Pentakota Seetharatnam (2005) 8 SCC 67.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
1. Tehsilder's point of view is wrong,

2. Unregistered will is very much acceptable and its registration is not mandatory,

3. What you shall have to do is to get your said will probated from the Court,

3.  Without probate, an will, be it registered or unregistered, is nothing but a scrap paper,

4. With one witness, you can get probate,

5. After you file an application for probate, notice will be sent to all he legal heirs of the property and any such person can claim that the will has been executed under influence or coersion or the signature is fake,

6. After you get the probate, apply for the mutation with a copy of the probate,

7. If the will is not accepted, te sons of the owner of the property will share the property equally.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
I think you got the citation and judgement related to your case
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0

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