Signature Not Verified v. STATE OF NCT OF DELHI

GNCTD. Mr.Amar Kumar, Advocate. HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV JUDGEMENT PURUSHAINDRA KUMAR KAURAV, J. (ORAL) The instant petition under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as “Act of 1925”) read with Section 300 of the Act of 1925 has been filed seeking probate of the Will dated 23.04.1982 executed by late Shri Satya Niranjan Pashine (hereinafter referred to as the „testator‟).

2. The facts of the case would indicate that the testator was the father of Signature Not Verified Signed By:PRIYA Signing Date:29.04.2025 16:11:04 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV petitioners. Respondent nos.2 and 3 are the son and wife of the testator, respectively. Respondent no.3/wife was named as the primary executor under the Will and petitioner nos.1 and 2 were other executors, in case the primary executor fails in her duty.

3. The aforesaid Will was registered on 29.10.1984 before the officer of Sub-Registrar, New Delhi. There were various movable and immovable properties, which were the subject matter of the Will, however, in the instant case, the dispute is confined to the immovable property bearing House No.K-10, South Extension-I, Part-1, New Delhi.

4. As per the case set up by the petitioners under the said Will, a life interest was created in favour of respondent no.3, while an absolute bequest was made in favour of the petitioners and respondent no.2 (youngest son of the testator).

5. During the year 2016-17, disputes arose inter se the petitioners and respondent no.2 and 3. Therefore, in order to obtain probate on the basis of the Will, the petitioners have filed the instant petition.

6. During the pendency of the instant proceedings, on 28.06.2018, petitioner no.1 has filed an affidavit stating therein that no attesting witness of the Will is alive. The aforesaid affidavit remains uncontroverted. The citations in the newspapers “The Statesman” and “Navbharat Times” were also published on 28.08.2018.

7. On 10.10.2018, respondent no.3 filed an affidavit of Admission/ Denial, explicitly admitting the Will dated 23.04.1982. Even respondent Signature Not Verified Signed By:PRIYA Signing Date:29.04.2025 16:11:04 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV no.2 vide his reply dated 27.09.2018 has admitted the execution of the Will.

8. It is the case of the petitioners that respondent no.2 had also admitted the Will in previous proceedings between the parties before the Court of Ld. Civil Judge, South-East, Saket Courts, New Delhi.

9. After completion of pleadings, the Court vide order dated 23.04.2019 has framed the following issues:- “1. Whether the document dated 23rd April, 1982 is the validly executed last Will of late Sh.Satya Niranja Pashine? OPP

2. Relief.”

10. Mr.Amar Kumar, learned counsel for the respondents submits that the present petition is premature and not maintainable. It is contended that during the lifetime of the principal executor, the petitioners have no locus standi to institute the present proceedings. In support of this submission, reliance is placed upon the judgment of the High Court of Judicature at Patna in Radha Piyari Devi v. Suman Singh1, wherein it was held that a beneficiary would have no locus standi to seek Probate or Letters of Administration during the lifetime of the executor.

11. Per contra, Mr. F.K. Jha learned counsel for the petitioners submits that the Will stands admitted by the respondents and, therefore, no further objection regarding the maintainability of the proceedings can be sustained. It is contended that the argument of prematurity or lack of locus standi raised on behalf of the respondents is misconceived and untenable. Learned counsel further submits that the petitioners are not merely beneficiaries but Signature Not Verified Signed By:PRIYA Signing Date:29.04.2025 16:11:04 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV also alternate executors under the Will, and hence, they possess the necessary locus to institute the present proceedings. It is argued that if the principal executor, i.e., respondent no. 3, for any reason, fails or chooses not to initiate proceedings for obtaining Probate, the alternate executors are entitled in law to seek such Probate.

12. Learned counsel for the petitioners further submits that the signatures of the Registering Officer and the identifying witnesses affixed to the registration endorsement are sufficient attestation within the meaning of the Act of 1925. Reliance is placed on the decision of the Supreme Court in Pentakota Satyanarayana and others v. Pentakota Seetharatnam and others2.

13. Additionally, learned counsel places reliance upon the judgment of the High Court of Madras in Marathal (Died) and Another v. Kanniammal (Died) and others3, to contend that the presumption under Section 90 of the Indian Evidence Act, 1872 would apply to the execution and attestation of the Will, given the passage of time since its execution.

14. It is further submitted that the right of the petitioners to approach the Court for recognition of their testamentary rights constitutes a continuing cause of action. Such a right survives so long as the object of the trust remains or any part thereof created by the Will is yet to be executed. In 1 2017 SCC OnLine Pat 1160 2 (2005) 8 SCC 67. 3 2024 SCC OnLine Mad 5153. Signature Not Verified Signed By:PRIYA Signing Date:29.04.2025 16:11:04 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV support of this proposition, reliance is placed on the decision of the Supreme Court in Kunvarjeet Singh Khandpur vs. Kirandeep Kaur and others4.

15. I have heard the submissions made by learned counsel for both parties and also perused the record.

16. At the outset, it is noted that while granting a Probate, the Court is not deciding the disputes relating to the title. Reference can be made to the decision of the Supreme Court in the case of Elizabeth Antony vs. Michel Charles John Chown Lengera5.

17. The Supreme Court in the case of Delhi Development Authority vs. Vijaya C. Gurshaney (Mrs) and Another6 has also held that a testamentary Court, whilst granting Probate or Letter of Administration, does not even consider, particularly in uncontested matters, the motive behind the execution of a testamentary instrument. A testamentary Court is only concerned with finding out whether or not the testator executed the testamentary instrument out of his free will. It is settled law that the grant of probate or letters of administration does not confer title to property. They merely enable the administration of the estate of the deceased. The relevant extracts of the said decision read as under:- “8. ... It is settled law that a testamentary court, whilst granting probate or letters of administration does not even consider particularly in uncontested matters, the motive behind execution of a testamentary instrument. A testamentary court is only concerned testamentary instrument of his free will. It is settled law that the grant of a probate or letters of administration does not confer title to finding out whether or not testator executed