JUDGMENT
Hemant Gupta, J.
1. This is a petition for grant of probate under Section 276 of the Indian Succession Act of the Will dated 4.12.1990 executed by Dr. (Mrs.) Sharda Jagdish w/o Late Dr. Jagdish Chander Khandpur.
2. It has been pleaded that the petitioner is the only daughter of the testator and the executor appointed under the Will. Earlier, the deceased executed a registered Will dated 20.7.1988 in favour of her brother Shri Anand Uma Nath @ Anant U. Basrur but subsequently this Will was revoked vide registered deed of revocation dated 4.12.1990 and thereafter the deceased executed a registered Will in favour of the petitioner on 4.12.1990. It is also pleaded that there is no other heir, next of kin or relation likely to claim the property left by the deceased.
3. Notice to the General Public was issued in “The Tribune” (English Edition) and “Dainik Tribune” (Hindi Edition). The said petition was contested by Shri Anant U. Basrur. It was the case of the said respondent that a duly registered Will, dated 20.7,1988 was executed by the deceased in his favour who is real brother of the deceased. The said respondent denied that the said Will was revoked at any stage. It was asserted that the said respondent is the only heir to claim the property left by the deceased.
The following issues were framed on 17.1.1992:-
1. Whether the petitioner is entitled to the grant of probate on the basis of Will dated 4th December, 1990? OPP
2. Relief.
4. In support of proof of Will dated 4.12.1990 executed in favour of the petitioner, the petitioner examined PW1 Prof. D.N. Johar, Law Faculty, Punjab University, Chandigarh, one of the attesting witnesses of Will dated 4.12.1990, Exhibit P-1, as well as of Revocation deed dated 4.12.1990, Exhibit P-2, Apart from the said testimony, the petitioner herself appeared as PW5. In addition to the attesting witness, the petitioner has examined PW3 Pushpinder Singh, Tehsildar-cum-Sub Register, Union Territory, Chandigarh, who has deposed to the effect that Will dated 4.12.1990, Exhibit P-1, and Revocation deed dated 4.12.1990, Exhibit P-2, bears the signatures of the testator as well as the attesting witnesses. He has deposed that the testator and the attesting witnesses have signed in his presence and that he has gone to the PGI to register the documents Exhibits P-1 and P-2. PW2 is Baldev Krishan, Registration Clerk from the office of Sub Registrar, Union Territory, Chandigarh, who has brought the record from the office of Sub Registrar, Chandigarh, and deposed that the documents Exhibits P-1 and P-2 tally with the originals retained in the officials record. In addition thereto, the petitioner has examined PW4 Dr. Suresh Sharma, Registrar in Orthopedics Department, PGI, at the relevant time. He has proved the certificate Exhibit PW4/A to the effect that Mrs. Sharda Jagdish was in a fit condition to make statement.
5. To counter such evidence, the respondent has examined himself as RW1 and deposed that deceased Mrs. Sharda Jagdish was his elder sister and that he arranged the marriage of his sister with Dr. Jagdish Chandra. He financed Dr. Jagdish in his practice at Chandigarh and provided some money for constructing the house in Chandigarh. He also financed the education of his sisters. The respondent also examined RW2 Shri Suresh Sharma, who is tenant in the premises owned by Dr. Mrs. Sharda Jagdish, as well as RW3 Rajesh Kapur, another tenant inducted by Dr. Mrs. Sharda Jagdish in her premises in Sector 27.
6. A perusal of statement of PW1 Prof. D.N. Johar, attesting witness, and that of the statement of PW3 Pushpinder Singh, Sub Registrar, leaves no manner of doubt that Will dated 4.12.1990, Exhibit P-1, was executed by the deceased. Still further, before the execution of the said Will, deed of revocation Exhibit P2 was also executed by her. The testimony of PW4 Dr. Suresh Sharma alongwith certificate Exhibit PW4/A shows that the deceased was in fit state of mind so as to execute the Will which was registered in the hospital. A perusal of the statement of PW5 Smt. Jyotsna Prabha Kohli petitioner shows that the deceased met with an accident on 9.11.1990 and in the accident her left arm, right thigh and ribs were fractured. She remained admitted in PGI for 41 days. She was looking after her during her illness in the PGI as she is the only daughter of her parents. She has further deposed that the respondent was requested to take care of her mother but he expressed his inability. He even did not come to see his sister during her illness. He did not come even after information about the death of her mother. In cross-examination, she has deposed that after the operation of fracture, her mother was recovering. She used to go on the wheel chair from the ward outside in the sun.
7. PW3 Pushpinder Singh, Sub Registrar, has deposed that the testator and the attesting witnesses signed Exhibits P1 and P2 at four places. Even second set of two documents were retained in the official record. He went to the PGI at the request of the petitioner in writing. The testimony of PW Prof. D.N. Johar, the attesting witness, is that of a trustworthy witness. The credibility of PW1 Prof. D.N. Johar could not be shattered in any manner in the cross-examination. He has deposed that Will dated 4.12.1990 Exhibit P-1 as well as deed of revocation dated 4.12.1990 was signed by the deceased and another attesting witness Gurmit Singh. In cross-examination, he has deposed that he was known to the deceased through his in-laws. He has deposed that earlier he went to PGI to enquire about her health and she expressed her wish to execute a Will and wanted him to be a witness to the revocation deed and Will next day. He again went there next day to be an attesting witness. From the statements PW1 Prof. D.N. Johar as well as PW2 Pushpinder Singh, Sub Registrar, the execution of Will dated 4.12.1990, Exhibit P-1, is proved.
8. The suspicious circumstances surrounding the execution of Will dated 4.12.1990 are sought to be proved by the respondent by examined two witnesses who were tenants under the deceased. RW2 Suresh Sharma has deposed that he went to PGI to enquire about the health of Dr. Sharda Jagdish 3-4 times but later on stopped going there in view of discouragement given to him by her daughter. It means that the deceased was under the care of her daughter when Dr. Sharda Jagdish was admitted in PGI. The said witness has filed a suit on 29.12.1990 against the petitioner i.e. after 8 days of death of deceased Dr. Sharda Jagdish. Thus, animus of said witness to depose against the petitioner is apparent.
9. Similarly, RW3 Rajesh Kapur is a tenant in part of the premises of Dr. Sharda Jagdish in Sector 27 which he allegedly took on rent in July, 1988. According to the said witness, the deceased was living alone. He used to serve her with breakfast, lunch and dinner. The said witness has deposed that in November, 1989, deceased Dr. Sharda Jagdish shifted to her house where her daughter was living. She was taking her lunch and dinner in Novelty Restaurant in Sector 22. It was, thus, sought to be proved that her daughter was not taking care of her. In the cross-examination, he has admitted that the petitioner and her husband were living with the deceased from the date of accident. He has further deposed that he never went to the house of Dr. Sharda Jagdish but he has been meeting her in another premises in Sector 22 which was also owned by her. He has not paid rent to anybody after the death of Dr. Sharda Jagdish, He has stated that he went in January, 1990 to pay rent to the petitioner and she told him that she alongwith her husband would come in the evening to collect the rent. But since a notice appeared in the newspaper that the property belonged to the respondent, he refused to make payment of rent to the petitioner.”
10. The testimonies of both these witnesses are, in fact, self serving statements so as to avoid payment pf rent to the petitioner. The suspicious circumstances detailed by the said witnesses are unreliable and untrustworthy. RW1 Anant U Basrur, brother of the deceased, has admitted in cross-examination that he came to Chandigarh only once during the illness of his brother-in-law. Subsequently, he came to Chandigarh only at the time of last rites of his brother-in-law and not thereafter. His sister was looking after herself after the death of her husband, therefore, one cannot find any suspicious circumstance in execution of revocation deed Exhibit P-2 revoking the Will executed in favour of the respondent as well as execution of Will Exhibit P-1 in favour petitioner.
11. Learned Counsel for the respondent has argued that PW1 Prof. D.N. Johar, the attesting witness, has admitted in his cross-examination that he has not read the Will. The attesting witness is a witness of the factum of execution of Will and not the contents thereof. “To attest is to bear witness to a fact. He bears witness not to the statements but to the fact of making of those statements. In Strouds’s Judicial Dictionary of Words and Phrases, Fifth Edition, 1986, the word “Attest” has been defined to the following effect:-
“To attest” is to bear witness to a fact. Take a common example; a notary public attests a protest; he bears witness not to the statements in that protest, but to the fact of the making of those statements; so, I conceive the witnesses in a will bear witness to all that the statute requires attesting witnesses to attest, namely that the signature was made or acknowledged in their presence: (per Dr. Lushington, Hudson v. Parker, I Rod. Ecc.26: see further 1 Jarn, (8th ed.), 133). The signing of a will is a visible matter, so a blind person cannot witness a will (Re Gibson [1949] P. 434).”
12. Still further, it has been held by this Court in Regular Second Appeal No. 616 of 1982 titled Smt. Kamla Devi and Ors. v. Dharuv Singh and Ors., decided on 7.3.2003, that the attesting witness is not a witness of the contents of the document but the attesting witness of the signatures of the testator on the Will. It was held to the following effect:-
“Still further the attesting witness is not a witness of the contents of the document but is the attesting witness of the signatures of the testator on the Will. Section 63 of the Succession Act contemplates that an unprivileged Will is required to be signed or his mark affixed by the testator in the presence of attesting witness who has seen the executant signing in his presence. Thus, what is expected of the attesting witness is the signing of the Will in his presence. The knowledge of the contents of the Will cannot be attributed to him. Section 63 of the Succession Act 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 of mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended there by to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other persons sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement 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.”
It has been held in Rajamal alias Sundarammal and Ors. v. Sbapathi Pillai and Anr., A.I.R. (32) 1945 Privy Council 82 that mere attestation is not enough to involve the witnesses with knowledge of the contents of the deed, and this is equally true of the witnesses who identify the executant before the Registrar. Subsequently, in Smt. Chandrakantaben J. Modi and Narendra Modi v. Vadilal Bapalal Modi and Ors., A.I.R. 1989 Supreme Court 1269, the Hon’ble Supreme Court held that there is no presumption that an attesting witness of a document must be assumed to be aware of its contents.
13. Therefore, I do not find any substance in the argument raised by learned counsel for the respondent that since the attesting witness was not aware of the contents of the will and is not a reliable witness.
14. Learned counsel for the respondent has also argued that the fact that since the deceased has died within three weeks of execution of the Will, the execution of the Will is surrounded by grave suspicious circumstances. However, the said argument is not tenable in law. The deceased was admitted in the hospital on account of injuries received in the accident. The doctor who attended her has been examined who has deposed that she was in fit condition to execute the Will on 4.12.1990. The mere fact that she died after sometime by itself cannot be a suspicious circumstance to discard the Will executed by the deceased in favour of her daughter.
15. Lastly, learned counsel for the respondent has argued that Letter Patent Appeal No. 548 of 1997 is pending before a Division Bench of this Court arising out of Probate Case No. 4 of 1994 in which the said respondent has sought probate of Will dated 20.07.1988. However, the said argument is not tenable for the reason that the probate sought by the respondent of the said Will was declined for the reason that none of the attesting witness was examined by the respondent in the said case. In the present case, the petitioner has proved revocation of the said Will as well as execution of Will dated 04.12.1990 bequeathing entire estate to the petitioner.
16. Since Will Exhibit P-1 has been found to be duly executed and is not found to be surrounded by any suspicious circumstances, the present petition is allowed.
17. The letters of administration are ordered to be granted to the petitioner for administration of the estate of deceased with a copy of the will annexed thereto on her depositing with the Registry the amount required for the purchase of stamp paper of requisite value and denomination necessary for its issuance. Letters of administration so granted by this Court shall be operative throughout Indian Republic.