CMA 311/96 – Surendra Kumar & Ors. Vs. Magh Devi & Ors. Judgment dt.9.7.09 1/7 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Surendra Kumar & Ors.Vs. Magh Devi & Otrs. S.B. CIVIL MISC. APPEAL NO.311/1996 Date of order : 9th July, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. J.K. Bhaiya for the appellants. Mr. R.K. Singhal for the respondents. ------- BY THE COURT:- 1. This appeal is directed against the judgment and order of learned ADJ, Nohar rejecting the application of the applicant Rishi Kumar whose legal representatives are now on record before this Court seeking a probate and letter of administration with respect to Will executed by one Smt. Bogidevi on 18.11.1974 who is said to have expired on 12.4.1977. 2. The learned court below has rejected the said application for probate and letter of administration on the ground that the said Will appears to have been executed under the influence of narcotic substance Amal by the testator Smt. Bogidevi, who was about 70 years of age at the time of execution of the Will. 3. Being aggrieved of the said order the applicant has CMA 311/96 – Surendra Kumar & Ors. Vs. Magh Devi & Ors. Judgment dt.9.7.09 2/7 approached this Court by way of present appeal. Mr. J.K. Bhaiya, learned counsel appearing for the appellant submitted that the Will was executed duly in accordance with the provisions of Section 63 of the Indian Succession Act and all the requirement of valid execution of Will are satisfied and the Will was also duly registered with the Sub-Registrar Nohar, District Sri Ganganagar. He submitted that no witness on the defendant side has stated that the said testator Smt. Bogidevi was under influence of such narcotic substance like Amal at the time of execution of the said Will on 18.11.1974. Irrespective of her habit of taking such Amal and for casting a suspicion on the execution of Will, the defendants or objectors had to prove that at the time of execution of the said Will in question the testator was unable to have control over her senses on account of such narcotic substance and was, therefore, unable to execute the said Will out of her own free will. He submitted that one of attesting witnesses Brij Lal had appeared before the Court and had proved the execution of the Will and it is sufficient compliance of law, even if one of attesting witness proved the execution of such Will. He, therefore, submitted that learned trial court was unnecessarily swayed by the fact that testator used to take such narcotic substance during her last period of age and, therefore, the Will cannot be believed to have been executed by her in favour of applicant, who though not related by blood to the testator was living nearby and used to serve her, as she was alone during her old age. CMA 311/96 – Surendra Kumar & Ors. Vs. Magh Devi & Ors. Judgment dt.9.7.09 3/7 4. On the side opposite, Mr. R.K. Singhal, learned counsel appearing for the respondents submitted that only witness, who appeared to prove the said Will before the Court below is Brij Lal, one of the attesting witness was a chance witness and was also interested witness because he was working as a teacher with the applicant Rishi Kumar and, therefore, his testimony is not worth believing. He just happened to be in the Tehsildar's office and is said to have stated before the Court that at the instance of the testator Smt. Bogidevi, he signed the Will as an attesting witness. He, therefore, submitted that all the defence witnesses have categorically stated before the Court that the said testator Smt. Bogidevi used to take narcotic substance like Amal and Naswar and, therefore, she cannot be said to have control over her mental balance and the applicant, who was not related by blood to the said testator misled her into executing such Will which is under a serious cloud of suspicion. 4. He further submitted that the learned court below was justified in rejecting the said application by relying upon the evidence produced by the defendants and the applicant had failed to establish that the Will was executed in accordance with law. He referred to the statements of some of the defence witnesses including the attesting witnesses like Brij Lal. 5. I have heard learned counsels at length and perused the record and impugned order dated 7.2.1996. 6. The requirement of Section 63 of Indian Succession Act, CMA 311/96 – Surendra Kumar & Ors. Vs. Magh Devi & Ors. Judgment dt.9.7.09 4/7 1925 about execution of unprivileged Will reads as under:- “63. Execution of unprivileged Wills.-- Every testator, not being a soldier employed in an expedition or engaged in actual warfare [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has been the testator sign or affix his mark to the will or has been some other person sign the Will, in the presence and by the direction of thee testator, or has received from the testator a personal acknowledgment of his signature or mark or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” 7. The Will is not required to be registered and the only CMA 311/96 – Surendra Kumar & Ors. Vs. Magh Devi & Ors. Judgment dt.9.7.09 5/7 requirement of execution of valid Will is that it should be duly signed or affixed by the mark of testator, who executed the said Will and duly attested by two witnesses, who must have signed the said Will with the knowledge that the testator is signing such Will in their presence. However, no form of attestation is prescribed nor it is necessary that more than one witness be present at the same time. In the present case, the Will in question is not only duly signed by affixture of thumb impression of the testator Smt. Bogidevi, but is duly signed by two witnesses, one of whom appeared before the Court and proved such execution of said Will before the Court. The Will in question is also registered by the Sub-Registrar, Nohar. It appears to have been executed and attested in the Court premises itself as admitted on behalf of the respondents where the said attesting witnesses Brij Lal happened to be there and signed as attesting witness there itself. Thus, in Court premises, a public place where the Will is executed and duly signed by the attesting witnesses and is also registered, the genuineness of the same cannot be normally disbelieved. The mere fact as has appeared from the evidence of the objector-defendants that the testator Smt. Bogidevi used to take some narcotic substance like “Amal” or “Naswar” etc. that does not per se or ipso facto render than the execution of the Will doubtful. Unless by cogent evidence, it is established before the Court that at the time of execution of the Will the testator had no mental balance or control over the mind so as to understand the document executed by him or CMA 311/96 – Surendra Kumar & Ors. Vs. Magh Devi & Ors. Judgment dt.9.7.09 6/7 her, the requirement of Section 63 of the Act cannot be said to have not been satisfied in the matter. Admittedly on a bare perusal of the Will in question appears to be prima facie genuine and duly executed and attested by two witnesses, one of whom deposed before the Court that he has attested the said Will at the instance of the testator Smt. Bogidevi. The request for probate or letter of administration could not be lightly brushed aside merely on the apprehension that the testator might have been under the influence of such narcotic substance even at the time of execution of the said Will in absence of any such evidence led before the Court by the objectors. From the perusal of the impugned order, it appears to this Court that the learned trial court has proceeded more on the baseless suspicion and not on well founded reasons, in this regard. 8. The contention of the learned counsel for the respondents that the witness Brij Lal was a chance witness or interested witness also has no legs to stand upon. Merely because a person or a witness is known to the applicant or beneficiaries under Will, he is not dis- entitled in law to either attest the said Will or to give such evidence before the Court. It was for the defendants or objectors to demolish his evidence by proper cross-examination, which they have failed to do so in the present appeal. The requirement of law is satisfied even if one of the two attesting witnesses proved the execution of the Will by deposing before the Court which has been done in the present case. CMA 311/96 – Surendra Kumar & Ors. Vs. Magh Devi & Ors. Judgment dt.9.7.09 7/7 9. Therefore, this Court is of the opinion that the learned courts below have erred in rejecting the application under Section 276 of the Act and not granting the probate or letter of administration to the applicants. The applicant Rishi Kumar appears to have died during such proceeding before the learned court below and, therefore, the legal representatives of said applicant have pursued this litigation including the present appeal before this court. The legal representatives of the diseased applicant are entitled to do so. 10. Accordingly, this appeal is allowed and the impugned order of the learned court below dated 7.2.1996 is set aside and the application under Section 276 of the Act filed by the applicant- appellants is allowed and the court below is directed to grant probate or letter of administration in respect of Will dated 18.11.1974 in favour of the present appellants. No order as to costs. [ DR. VINEET KOTHARI ], J. item No.12 babulal/