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HIGH COURT OF DELHI
JUDGMENT
SUSHOBAN LUTHRA & ANR. ..... Appellants
Through: Mr. Rajiv Bahl, Advocate with Mr. Pankaj Aggarwal, Adv.
Through: Mr. Sanjeev Anand, Advocate with Ms. Anubha Surana, Advocate
HON’BLE MR. JUSTICE SANJEEV SACHDEVA
SANJEEV SACHDEVA, J.
1. This is an appeal arising out of judgment dated 12.7.2011. By the impugned judgment, the objections filed by the appellants to the probate petition filed by the respondents in respect of the Will dated 25.10.2000 executed by late Smt. Shakuntala Kapur have been dismissed and the probate has been granted of the said Will. The appellants herein are the children of the pre-deceased daughter of late Smt. Shakuntala Kapur and the respondents (the probate petitioners) are the sons of late Smt. Shakuntala Kapur.
2. The learned counsel for the appellants has impugned the judgment on 2013:DHC:2079-DB the following grounds: “(i) The Will has been executed in suspicious circumstances which are evident from: (a)The signatures of the Sub-Registrar on the original Will and on the certified copy of the Will do not tally; (b)The signatures of the attesting witnesses are not in the same order in the original Will and in the certified copy of the Will;
(c) The evidence of PW-2 is unreliable as there are contradictions and both the Wills are not identical, as on the one of the Wills no date has been mentioned, whereas on the other date has been mentioned; and (d)That the certified copy should be the replica of the Original Will.
(ii) There was undue influence in the execution of the
Will in as much as the husband of late Smt. Shakuntala Kapur was present at the time of execution and registration of the Will and;
(iii) The Certified Copy of the Will produced by the
Respondents herein does not satisfy the requirements of Section 52 (1) (c) of the Registration Act, 1908 and Rule 29 of the Delhi Registration Rules.”
3. We had summoned the original suit record and have examined the evidence led and the documents proved on record of the case.
4. The respondents have produced three witnesses in support of their Petition for grant of probate. On the other hand, the appellants have not led any evidence in support of the objections filed by them and have neither filed their affidavits by way of evidence nor have they entered the witness box.
5. We find no merit in the submission of the learned counsel for the appellants with respect to the alleged suspicious circumstances in the execution of the Will. We have examined the original Will (Ex.PW2/DX) and the certified copy (EX.PW-1/2) produced on records of the case. The original Will (Ex. PW2/DX) bears the signatures of the Sub-Registrar at three places on the back of page 1 and at one place on the back of the last page of the Will. On the back of the last page of the certified copy of the Will (EX-PW1/2), the signatures that appear of the Sub-Registrar tallies with the signatures of the Sub-Registrar on the original Will. No doubt, the signatures on the back of the first page of the certified copy appear to be somewhat different but in our view nothing really turns on it because the original Will produced and duly exhibited in the records of the case bears the signatures of the Sub-Registrar and the last page of the certified copy of the Will also bears the same signatures. The appellants have led no evidence in support of this plea raised by them. Further when the officer of the Subin his cross-examination. This submission of the learned counsel for the appellant being unsustainable is hereby rejected.
6. We also find no merit in the submission of the learned counsel for the appellants that the Will has been executed in suspicious circumstances as the signatures of the attesting witnesses are not in the same order in the original Will and in the certified copy. There is no doubt that order of signing of the witnesses in the original Will and in the certified copy of the Will is not same, the explanation rendered by the counsel for the respondents is that where the Will is prepared in duplicate and both the Wills are given simultaneously to the witnesses to sign and then exchanged between the attesting witnesses for their signatures, the order of signatures of the attesting witnesses may interchange. We find that the explanation is cogent, plausible and corroborated by the evidence of the witnesses of the respondents (the probate petitioners). This submission of the learned counsel for the appellant, being unsustainable, is rejected.
7. In the Impugned Judgment, the learned Single Judge has returned findings as under:
8. The submission of the learned counsel for the appellants that the presence of the husband of late Smt. Shakuntala Kapur at the time of execution and registration of the Will amounted to undue influence in the execution of the Will, has no merit and is liable to be rejected. The Husband of late Smt. Shakuntala Kapur is a Class-I legal heir and in the absence of a Will would have inherited 1/4th share in the estate of late Smt. Shakuntala Kapur. By the Will dated 25.10.2000, Smt. Shakuntala Kapur had given only a life interest to her husband in one of the properties. The fact that the beneficiary receives a share under a Will less than what he would have inherited in the absence of the Will dispels the plea of undue influence. The submission of the learned counsel for the appellants that the presence of husband of late Smt. Shakuntala Kapur at the time of execution and registration of Will amounts to undue influence merits outright rejection. In the Indian Society, it is quite normal for a wife to execute a Will in consultation and in presence of her husband and vice-versa. The mere fact that the husband was present at the time of execution and registration of the Will would not per se establish that undue influence was used in the execution of the Will. To substantiate the plea of undue influence, the objector would have to lead cogent evidence; in the present case, there is no such evidence on record on behalf of the Objectors.
9. The submission of the learned counsel for the appellants that the Certified Copy of the Will produced by the Respondents herein does not satisfy the requirements of Section 52 (1) (c) of the Registration Act, 1908 (for short „the said Act‟) and Rule 29 of the Delhi Registration Rules (for short, „the said Rules‟) also merits outright rejection.
10. Section 52(1) (c) of the said Act, as amended for the State of Delhi, lays down as under: “Section 52 Duties of registering officers when document presented. ……………… ……………….
(c) Subject to the provisions contained in section
62, a copy of every document admitted to registration shall, without unnecessary delay, be pasted in the book appropriated therefor according to the order of admission of the document.”
11. Rule 29 of the said Rules lays down as under:
12. On examination of the original Will (Ex.PW2/DX) and the certified copy of the Will (EX.PW-1/2) it is seen that the contents of both the Wills are identical. The submission of the learned counsel that in the office of the Sub-Registrar, a photocopy of the duly executed original Will has to be pasted in the records of the Sub-Registrar merits rejection inasmuch as neither Section 52(1) (c) of the said Act nor Rule 29 of the said Rules stipulate pasting of a photocopy of the duly executed original Will. What Section 52 (1) (c) of the said Act and Rule 29 of the said Rules stipulate is that a copy of the Original has to be pasted in the Book maintained in the office of the Sub-Registrar. If a Will is prepared in duplicate either by using a carbon or by printing the same twice from a computer and signed in duplicate and then the carbon copy duly signed in original or the computer printout duly signed in original is pasted in the records of the Sub-Registrar, it would satisfy the requirements of both Section 52(1)(c) of the said Act, 1908 and Rule 29 of the said Rules.
13. In the present case, since the certified copy of the Will is identical to the original Will, the requirements of both Section 52(1)(c) of the said Act and Rule 29 of the said Rules have been duly complied with. We may further note that the appellants have neither led any evidence on this issue nor have they chosen to cross-examine PW[3], the officer from the office of the Sub-Registrar on this issue. Further, a Will is not compulsorily registerable under the said Act and, thus, a mere irregularity in the certified copy would not render the original Will invalid more so in view of the fact that the Original Will has been duly produced and proved on the records of the case.
14. In view of the above, we find no infirmity in the impugned order and find no merit in the submissions of the learned counsel for the appellant. The appeal is, therefore, dismissed leaving the parties to bear their own costs.
SANJEEV SACHDEVA, J. APRIL 25, 2013 SANJAY KISHAN KAUL, J. sv