{"id":206659,"date":"2011-02-17T00:00:00","date_gmt":"2011-02-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pushpawati-joshi-thr-lrs-vs-beena-sharma-ors-on-17-february-2011"},"modified":"2017-12-05T04:15:37","modified_gmt":"2017-12-04T22:45:37","slug":"pushpawati-joshi-thr-lrs-vs-beena-sharma-ors-on-17-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pushpawati-joshi-thr-lrs-vs-beena-sharma-ors-on-17-february-2011","title":{"rendered":"Pushpawati Joshi (Thr. Lrs … vs Beena Sharma & Ors on 17 February, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Pushpawati Joshi (Thr. Lrs … vs Beena Sharma & Ors on 17 February, 2011<\/div>\n
Author: Mool Chand Garg<\/div>\n
*       IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n\n+       FAO 248\/1996\n\n%                                            Reserved on: 10.02.2011\n                                             Decided on :17.02.2011\n\n\n        PUSHPAWATI JOSHI (THR. LRS CHANDRAKALA\n        JOSHI & ORS)                                  ..... Appellants\n                      Through    Mrs. C.K. Joshi, Mr. Prem Swaroop\n                                 Joshi, Appellants in person.\n\n\n                           VERSUS\n\n\n        BEENA SHARMA & ORS                               .... Respondents<\/pre>\n
                     Through           Mr. L.D. Adlakha, Ms. Ripu\n                                       Adlakha, Advs. for R-1 & 5.\n                                       Mr. Dharamvir Singh Gupta, Mr.\n                                       Kshitij Sharda, Advs. for R-2.\n\n        CORAM:\n        HON'BLE MR. JUSTICE MOOL CHAND GARG\n\n     1. Whether the Reporters of local papers may be allowed\n        to see the judgment?                                          Yes\n     2. To be referred to Reporter or not?                            Yes\n     3. Whether the judgment should be reported in the Digest?        Yes\n\n\nMOOL CHAND GARG,J\n\n<\/pre>\n
1.      This appeal has been filed by the appellant against the order
\ngranting probate of the Will dated 03.01.1980 executed by late Shri
\nHarbans Lal Joshi who expired on 05.03.1981 leaving behind 4 sons,
\ntwo daughters and 1 widow. The grant of probate was opposed by all
\nthe 4 sons and his widow vide objection dated 11.12.1984. As per the
\nWill in respect of accommodation available in H.No. C-66, Soami Nagar,
\nNew Delhi -17 front portion in its entirety is given to the daughter Mrs.
\nBeena Joshi Sharma except one bed room opposite to kitchen of the
\nsaid portion. Rear portion consisting of two rooms was given to two
\nsons, namely, Prem Swaroop Joshi & Basant Kumar Joshi, who took
\none bedroom each along with common corridor & kitchen.\n<\/p>\n
FAO 248\/1996                                                   Page 1 of 21<\/span><\/p>\n
 2.    Similary, bequeath of some portion of the first floor has been
\nmade in favour of Shri Sahab Swaroop and Gur Swaroop Joshi in the
\nfollowing words:-\n<\/p>\n
          “(a)Space over front portion – may be built by my son
\n          Sahab Swaroop when convenient to him, so as to have
\n          decent accommodation when he settles down in Delhi
\n          permanently after his retirement from Govt. Service in
\n          M.P., or earlier according to his choice.\n<\/p><\/blockquote>\n
          (b) Space over rear portion 1st floor – Gur Swaroop
\n          Joshi my son is permitted to build one room in
\n          continuation of the space above the kitchen of the rear
\n          portion. He will have to pay the cost of land (roof
\n          portion) (a) 1\/3 portion of the market rate of land on
\n          the date of construction by him. He is also permitted
\n          to construct lavatory bath and kitchen by paying the
\n          cost of land as stated i.e. 1\/3 of the market rate of
\n          land on date. The cost of land paid by Gur Swaroop
\n          Joshi will be shared by Prem Swaroop Joshi & Basant
\n          Kumar Joshi equally.”\n<\/p><\/blockquote>\n
3.    Smt. Shanti Sharma was also permitted to build over the second
\nfloor according to the need on date. She has neither filed any objection
\nnor she is a contesting party. Besides that there were some bequeath of
\nmovable properties in the following words:\n<\/p>\n
      “It is my frank & open confession that the house as it stands
\n      at date has come to being with the funds loaned out by
\n      Dayal Bagh Radha Soami Finance Co., J.P. Sahajpal and
\n      loans share of money provided by Beena Joshi Sharma out
\n      of her salary earned as teacher both before and after her
\n      marriage with Shri Nand Kishore Sharma. I wish & hope
\n      that my loan obligation on date will be paid by Mrs. Beena
\n      Joshi Sharma so as to permit my unfettered departure to
\n      better world which has matured.”\n<\/p><\/blockquote>\n
4.    According to the respondent whatever liabilities were left to be
\ndischarged and which were required to have been discharged by the
\nrespondent Smt. Beena Sharma stands discharged.\n<\/p>\n
5.    As far as the objectors are concerned, they had opposed the grant
\nof probate by making following averments:\n<\/p>\n
          “Shri Harbans Lal Joshi had been keeping very bad
\n          health, several years before his death. During the first
\n          week of December, 1979 Shri Harbans lal Joshi
\n          became seriously ill and was completely bed-ridden.
\n          He was suffering from a disease which brought about
\n          the symptoms of inattentiveness and confusion. He
\n          was incapable of balanced sensory perception and was
\nFAO 248\/1996                                                  Page 2 of 21<\/span>
\n           in a state of stuper. In view of the serious illness of
\n          Shri Harbans Lal Joshi, he was incapable of making a
\n          Will on 03.01.1980. It is denied that Shri Harbans Lal
\n          Joshi executed any Will in question on 03.01.1980, a
\n          photo copy of which has been produced in this Hon\u201fble
\n          Court. In the alternative it is submitted that the
\n          petitioner was staying of and on with Shri Harbans Lal
\n          Joshi during the period of his illness. The petitioner
\n          was attending upon him. Shri Harbans Lal Joshi was
\n          greatly under the influence of the petitioner. The Will
\n          in question alleged to have been executed by him, was
\n          under the undue influence of and under pressure
\n          exercised by the petitioner upon her father, Shri
\n          Harbans Lal Joshi. It is also denied that Dr. N.N.
\n          Tandon and Shri Karam Narain Khanna signed the
\n          Will as attesting witnesses.”\n<\/p><\/blockquote>\n
6.    In addition to that it was also submitted that no provision was
\nmade for the widow of Shri Harbans Lal in spite of the fact that Smt.
\nPushpawati Joshi widow of Harbans lal Joshi was the allottee of the
\nland in question.    It is also alleged that the property was not self-
\nacquired property of late Shri Harbans Lal Joshi, the payment of the
\nconstruction of the plot was assured by Sahab Swaroop Joshi and
\nSushila Joshi wife of Sahab Swaroop Joshi. Late Shri Harbans lal Joshi
\nwas not able to make payments and notice were received by Sahab
\nSwaroop Joshi and his wife Smt. Sushila Joshi from where installments
\nwere remitted. It was stated that in these circumstances Shri Harbans
\nLal Joshi had no right to make any Will regarding the property in
\nquestion.\n<\/p>\n
7.    It is informed by learned counsel for the respondent that the
\nobjections were withdrawn by Shri Gur Swaroop Joshi by moving an
\napplication dated 19.07.1994 which was supported by his affidavit and
\nthe statement of the said objector was also recorded by the Court. An
\norder in this regard accepting withdrawal of the objection was passed
\non 03.08.1994. The said order including the statement made by the
\nsaid objector Shri Gur Swaroop Joshi reads as under:\n<\/p>\n
          \"Present:       Shri P.D. Adlakha Adv. for the\n          petitioner.\n<\/pre>\n
          Shri M.L. Bhargava Adv. for Shri Gur Swaroop Joshi
\n          respondent no.2, with respondent No.2 in person.\n<\/p>\n
                 None for others.\n<\/p>\n
                 Objector No.2 wants to make statement,
\n          withdrawing his objections. Let his statement be
\nFAO 248\/1996                                                 Page 3 of 21<\/span>
\n           recorded.\n<\/p>\n
                                                         ADJ.\n<\/p>\n
          Statement of Shri Gur Swaroop Joshi s\/o Shri
\n          Harbans Lal Joshi aged 58 years, respondent No.2 on
\n          SA<\/p>\n
                I have filed joint objections on 11.12.84 along
\n          with the other relations. I do not want to pursue my
\n          objections.   My objections may be dismissed as
\n          withdrawn.\n<\/p>\n
                                                          ADJ.\n<\/p>\n
          RO&AC<\/p>\n
          3.8.94
\n                In view of the statement made by Shri Gur
\n          Swaroop Joshi, his objections dated 11.12.84 in so far
\n          as they pertain to him, are dismissed as withdrawn.\n<\/p>\n
                Case taken up today as 2.8.94 was declared a
\n          holiday.\n<\/p>\n
                Case now to come up for arguments on other
\n          pending applications on 5.9.94
\n                                                             ADJ
\n                                                          3.8.94″\n<\/p>\n
8.    Learned counsel appearing for the second respondent submits
\nthat this statement was procured by misleading him. His counsel was
\nnot present at the time when the aforesaid statement has been
\nrecorded. However, it is a matter of record that he has not filed any
\nappeal against the grant of probate in favour of the respondent.\n<\/p>\n
9.    Shri prem Swaroop Joshi moved an application supported with
\nhis affidavit on 31.01.1991. He was also represented by an Advocate
\nShri M.K. Bhargava. The statement of that objector was also recorded
\non 20.02.1991 which order reads as under:\n<\/p>\n
          “Present:     Shri L.D. Adalakha, adv. for the pet.
\n          Shri Gur Swaroop, respondent no.2 in person along
\n          with Shri Kanwal Narain, Adv.\n<\/p><\/blockquote>\n
          Shri M.K. Bhargava, Adv. for respondent no.3<\/p>\n
          This is an application by respondent No.3 for
\n          withdrawal of his objections. The objector is hereby
\n          permitted to withdraw the objections. Hence, the
\n          objections are hereby dismissed as withdrawn.\n<\/p><\/blockquote>\n
          Shri Adlakha, Adv. prays for an adjournment on the
\n          ground that he has to think over the matter in view of
\n          the withdrawal of the objections by respondent No.3,
\n          whether he has to press his application for additional
\n          evidence or not. In view of the above, adjourn and put
\nFAO 248\/1996                                                 Page 4 of 21<\/span>
\n              up on 20.05.91 for disposal of the said application.\n<\/p><\/blockquote>\n
                                                      DJ\/20.02.91.”\n<\/p><\/blockquote>\n
10.   In view of the aforesaid, the objections remained for being
\nadjudicated only on behalf of Smt. Pushpawati Joshi, Dr. Sahab
\nSwaroop Joshi and LRs of Shri Basant Kumar Joshi. On the pleadings
\nof the parties, the Addl. District Judge framed the following issues:\n<\/p>\n
      “(i)     Whether Shri Harbans Lal Joshi (deceased) validly
\n               executed Will dt. 3.1.1980 propounded by the
\n               petitioner and he was of sound disposing mind at the
\n               time of execution of the Will?\n<\/p><\/blockquote>\n
      (ii)     Relief.”<\/p>\n
11.   It may be observed here that Shri Basant Kumar Joshi died
\nduring the pendency of proceedings before the Addl. District judge. His
\nlegal heirs were taken on record during those proceedings. They have
\nnot appeared as witnesses.\n<\/p>\n
12.   The respondent who propounded the Will examined three
\nwitnesses, namely Shri Karam Narain PW1, Dr. N.N. Tandon PW2 the
\nattesting witness of the Will and Smt. Beena Sharma the propounder of
\nthe Will, daughter of the deceased.\n<\/p>\n
13.   On the other hand Smt. Pushpawati Joshi and Dr. S.S. Sharma
\nappeared as witnesses on behalf of the objectors besides brother of Smt.
\nPushpawati Joshi an Advocate.\n<\/p>\n
14.   The Addl. District Judge had come to the conclusion that the Will
\nin question was executed by late Shri Harbans Lal Joshi. Its execution
\nwas duly proved by the two attesting witnesses.         The Addl. District
\njudge has not found any infirmity or any suspicious circumstances as
\npleaded on behalf of the appellants to be reasons for refusing the grant
\nof letters of administration.\n<\/p>\n
15.   After the grant of probate by the Addl. District judge the
\nappellants filed an appeal before this Court. During the pendency of
\nthe appeal, Smt.Pushpawati Joshi also expired. Since the legal heirs of
\nSmt. Pushpawati Joshi are already on record, no other person was
\nbrought on record.\n<\/p>\n
16.   It is of importance to note that Shri Sahab Swaroop Joshi during
\nthe pendency of the appeal also filed an application dated 09.11.2001
\nwhereby he accepted the Will and stated that he was not pressing the
\nFAO 248\/1996                                                    Page 5 of 21<\/span>
\n Will on merits.     This Court has recorded the statement of Dr. Sahab
\nSwaroop Joshi in the order dated 06.02.2003. The said order reads as
\nunder:\n<\/p>\n
          “C.M.1108\/2001<\/p>\n
          Heard.\n<\/p><\/blockquote>\n
          This application has been moved by legal
\n          representative of deceased\/executor of the Will who is
\n          appellant No.4 as he does not want to join
\n          proceedings. The objection raised by learned counsel
\n          for respondent No.2 cannot be sustained for a party
\n          who does not wish to contest any further cannot be
\n          forced to join the proceedings with other appellants
\n          who are pursuing the matter does not appeal in the
\n          facts and circumstances of the matter.       In such
\n          circumstance, appellant No.4 is transposed as
\n          respondent No.5.     Accordingly, this application is
\n          allowed.\n<\/p><\/blockquote>\n
             Mr. Vinod K. Srivastava stands discharged so far as
\n          his Vakalatnama for appellant No.4 is concerned.\n<\/p><\/blockquote>\n
              Amended memo of parties be filed. Application is
\n          filed.”\n<\/p><\/blockquote>\n
17.   The application dated 09.11.2001 is also reproduced hereunder
\nfor the sake of reference:\n<\/p>\n
               “IN THE HIGH COURT OF DELHI AT NEW DELHI
\n                             C.M.1108\/2001
\n                                   In
\n                              FAO 248\/1996<\/p>\n<\/blockquote>\n
          1.   Smt. Chandra Kala Joshi\n<\/p><\/blockquote>\n
          2.   Ms. Gunjan Joshi\n<\/p><\/blockquote>\n
          3.   Master Sidharth Joshi\n<\/p><\/blockquote>\n
          4.   Dr. Sahib Sarup Joshi             …..Appellants.\n<\/p><\/blockquote>\n
          Versus<\/p>\n
          Smt. Beena Sharma & Ors.\n<\/p><\/blockquote>\n
            ……Respondents<\/p>\n
                   APPLICATION UNDER SECTION 151 CPC<\/p>\n
          SHOWETH<\/p>\n
FAO 248\/1996                                                 Page 6 of 21<\/span>\n<\/p><\/blockquote>\n
           1. That the aforesaid appeal against the order dated
\n          28.2.96 granting Letters of Administration to
\n          respondent No.1 in respect of the Will of Late Shri
\n          Harbans Lal Joshi dated 3.1.80 is pending before this
\n          Hon\u201fble Court and is fixed for final disposal for
\n          13.02.2002.\n<\/p><\/blockquote>\n
          2. That appellant No.4 Dr. Sahib Sarup Joshi does not
\n          wish to continue with the appeal and wishes to
\n          withdraw the same. The appeal was initially filed by
\n          the appellant No.4, applicant\u201fs mother Smt.
\n          Pushpawati Joshi and the present appellants. On the
\n          death of Smt. Pushpawati Joshi during the pendency
\n          of the appeal her name was struck off.\n<\/p><\/blockquote>\n
          3. The in view of the fact that the appellant
\n          No.4\/applicant does not wish to prosecute and pursue
\n          the appeal and admits the judgment of the Trial Court
\n          his name needs to be removed from the array of
\n          appellants and he be transposed as Respondent No.5.\n<\/p><\/blockquote>\n
          4. That   in   the    aforesaid circumstances  the
\n          Vakalatnama executed by the applicant\/appellant
\n          No.4 Sahib Sarup Joshi in favour of Shri Vinod K.
\n          Srivastava Advocate is liable to be withdrawn and
\n          cancelled since he will continue to represent the
\n          remaining appellants.\n<\/p><\/blockquote>\n
          5. It is therefore prayed that it may kindly be recorded
\n          that appellant No.4\/applicant Sahib Sarup Joshi does
\n          not wish to pursue and prosecute the appeal as an
\n          appellant and his name may be deleted from the array
\n          of appellants and be transposed as respondent No.5.\n<\/p><\/blockquote>\n
          Prayed accordingly.”\n<\/p><\/blockquote>\n
18.   In terms of the aforesaid order Shri Sabah Swaroop Joshi was
\ntransposed as respondent No.5.\n<\/p>\n
19.   During the pendency of this appeal an interim order was passed
\nby this Court on 13.03.2003 whereby certain rights\/ permissions were
\ngranted by this Court for completing the construction in the following
\nwords:\n<\/p>\n
          “Present:      Mr. Vinod K. Srivastava, Advocate for
\n          the
\nFAO 248\/1996                                                  Page 7 of 21<\/span>
\n                   appellant.\n<\/p><\/blockquote>\n
               Mr. L.D. Adalakha, adv. for respondent No.1
\n          Mr. Dharamvir Singh Gupta, adv. for respondent No.2<\/p>\n
          The respondent No.5 (appellant No.4) Dr. S.S.Joshi
\n          shall file an undertaking by Monday to the effect that
\n          he will complete the construction within a period of six
\n          months and in case the construction is not made in
\n          terms of the will by him then the brother who is
\n          entitled to raise the construction over his portion shall
\n          be entitled to raise his construction at his cost, plus `
\n          25\/- to ` 100\/- cost for supervision per square feet for
\n          the time which he would be required to spend
\n          unnecessarily.\n<\/p><\/blockquote>\n
          List the matter on 20.03.2003.\n<\/p><\/blockquote>\n
                                                   S.N.Kapoor, J.”\n<\/p><\/blockquote>\n
20.   After taking benefit of the aforesaid order Dr. Sahab Swaroop
\nJoshi moved an application before the MCD for the sanction of plan
\netc., an SLP was filed by Shri Gur Swaroop Joshi before the Hon\u201fble
\nSupreme Court against the order granting permission to construct some
\nportion of the property. In that petition while dismissing the SLP some
\nobservation has been made by the Hon\u201fble Supreme Court:\n<\/p>\n
          “12.      The contents of the said Will are alleged to be
\n          vague.    Whether the terms stipulated therein are
\n          capable of being implemented, would be a matter of
\n          construction of the Will at the hands of the High
\n          Court. The High Court, therefore, was first required to
\n          determine the validity or otherwise of the said Will.
\n          Section 81 & 89 of the Indian Succession Act reads
\n          thus:\n<\/p><\/blockquote>\n
          81.       Extrinsic evidence inadmissible in case of
\n          patent ambiguity or deficiency- Where there is an
\n          ambiguity or deficiency on the face of a Will, no
\n          extrinsic evidence as to the intentions of the testator
\n          shall be admitted.\n<\/p><\/blockquote>\n
          89.       Will or bequest void for uncertainty- A will or
\n          bequest not expressive of any definite intention is void
\n          for uncertainty.”\n<\/p><\/blockquote>\n
          13.      Thus, if the contents of the Will are found to
\n          be vague despite the genuineness thereof, the grant of
\n          probate in favour of the 1st respondent may,
\n          ultimately, be declined. It is in that view of the matter,
\n          the High Court must be held to be not justified in
\n          passing interim orders in mandatory form in terms of
\n          which not only the appeal preferred by the respondent
\n          Nos. 2, 3, 5 & 6 herein would become infructuous, the
\n          parties would also be forced to give effect to the
\nFAO 248\/1996                                                    Page 8 of 21<\/span>
\n           provisions of the said Will although, they may have
\n          reservations in relation there. Grant of mandatory
\n          injunction on the aforementioned premise, in our
\n          opinion, therefore, suffers from manifest error. (see
\n          Union of India & Ors. Vs. Modiluft Ltd. (2003) 6 SCC
\n          65, Para 11 and Shrikrishna & Ors. Vs. Anirudha
\n          Singh & Ors. (2005) 12 SCC 389).”\n<\/p><\/blockquote>\n
21.   The counsel appearing for respondent No.2 who, as stated above,
\nhas withdrawn his objections but has gone to the Hon\u201fble Supreme
\nCourt submits that in view of the aforesaid order the order granting
\nprobate must be set aside.\n<\/p>\n
22.   However, the learned counsel for the respondent submits that
\nthis order in no way affect the order granting the probate.        Some
\nobservations which have been made only with regard to the interim
\norder having been passed by this Court and passing reference regarding
\nthe contents of the Will does not make the order of grant of the Will a
\nnullity. He submits that there are good grounds that the order granting
\nprobate must be upheld. He also says that the Will is very specific and
\ndeals with shares of different parties to whom bequeath had been made,
\nand therefore, it cannot even be said that this Will has any vagueness.
\nMoreover, he submits that there are no pleadings regarding the
\nvagueness of the Will in question by the objectors before the Addl.
\nDistrict Judge. They have also not led any evidence in this regard. No
\nissue was framed on that and therefore they cannot draw any benefit
\nout of the order of the Supreme Court inasmuch as even arguments
\nwere not raised before the Addl. District Judge.\n<\/p>\n
23.   Learned counsel for respondent No.2 has also adopted the written
\narguments filed on behalf of the appellant. In those arguments, the
\nbasic submission made by the appellant are twofold; firstly, the will was
\nvague as even observed by the Hon\u201fble Supreme Court as stated above.
\nIt was thus submitted that on account of vagueness and uncertainty
\nthe will has become void and could not have been the basis for granting
\nprobate in favour of the respondent.\n<\/p>\n
24.   To highlight the vagueness the appellant has referred to
\nparagraphs 1 and 2 of the Will which reads as under:-\n<\/p>\n
          “Front portion of its entirety is given to my daughter
\n          Mrs. Beena Joshi Sharma except one bed room
\n          12″X12” opposite to the kitchen of the said portion.\n<\/p><\/blockquote>\n
FAO 248\/1996                                                 Page 9 of 21<\/span><\/p>\n
             This bed room is given to my son Sahib Saroop Joshi.
\n            After some structural change and position of doors it
\n            may form part of rear portion so as to have easy access
\n            to the roof and use of bath rooms and lavatory etc. of
\n            the rear portion.\n<\/p><\/blockquote>\n
            Rear Portion consisting of 2 bedrooms are given to my
\n            sons Prem Sarup Joshi and Basant Kumar Joshi who
\n            will take one bed room each and use corridor and
\n            kitchen in common.”\n<\/p><\/blockquote>\n
25.      It has been submitted that a conjoint reading of paras 1 and 2 of
\nthe Will would further prove its vagueness, uncertainty and unclear
\nintention.     The Will does not detail the entire accommodation in the
\nproperty including the open areas and common areas.            It does not
\nspecify as to what exactly is given to Beena Sharma and what is
\nbequeathed to Prem Sarup Joshi and Basant Kumar Joshi. The entire
\nbequest, on reading paras 1 and 2 is confusing, vague and uncertain.\n<\/p>\n
26.      It is also submitted that the perusal of the above clause (a) and\n<\/p>\n
(b) in para 3 of the Will would show again the vagueness, uncertainty in
\nthe Will and the confusion therein.      In clause (a) the Will says that
\nspace over the front portion may be built by Sahibe Saroop Joshi when
\nconvenient to him.      It does not say over which front portion of the
\nproperty can Sahib Saroop built.       Again it says he may build when
\nconvenient to him.      It may never be convenient to him.     The alleged
\nbequest is absolutely vague and uncertain. Similarly, clause (b) says
\nspace over rear portion 1st Floor-Gur Saroop Joshi is permitted to build
\none room in continuation of the space upon the kitchen of the rear
\nportion. It is again not clear as to on what portion Gur Saroop Joshi can
\nbuild.     The present property admittedly is a single storey structure.
\nThen clause (b) says that Gur Saroop will have to pay the cost of land
\n(roof portion) which may be 1\/3 portion of the market rate of land on
\nthe date of construction by them. Today the cost of the land in the area
\nis not less than Rs. 1 lakh per sq. yard. Gur Saroop according to this
\nbequest will have to pay 1\/3 portion of the market rate of land on the
\ndate of construction by him. He is permitted to construct the lavatory
\nbathroom etc. How much portion will be constructed and what will be
\nthe amount payable by him is absolutely unclear. He may not be able
\nto pay anything at all. Taking into consideration the present market
\nFAO 248\/1996                                                   Page 10 of 21<\/span>
\n value of the land, the cost of the land so payable by Gur Saroop is to be
\nshared by Prem Saroop Joshi and Basant Kumar Joshi (LRs of deceased
\nBasant Kumar Joshi) equally. Gur Saroop Josh may never build and
\nPrem Saroop Joshi and LRs of Basant Kumar Joshi will never get
\nanything. Shanti Sharma is permitted to build over the second floor
\naccording to her need on date. There is no construction on the first
\nfloor. The persons permitted to build on the first floor may never so
\nbuild and thus Shanti Sharma will never be able to make any
\nconstruction on the second floor.\n<\/p>\n
27.   It is, therefore, submitted that the Will is not executable nor can
\nthe intentions of the testator be given effect to. The will or bequest is
\nabsolutely uncertain and not expressive of any definite intention on the
\npart of the testator. The Will is wholly ambiguous and deficient on the
\nface of it. It cannot take effect to the full extent. No extrinsic evidence
\ncan be led to show the intention of the testator under Section 81 of the
\nIndian Succession Act.     The will makes to mention of the wife      Smt.
\nPushpawati Joshi. Section 89 of the Indian Succession Act says that
\nthe Will or bequest which is not expressive of any definite intention is
\nvoid for uncertainty.   It is, therefore, submitted that the Will Ex.P-1
\nbeing uncertain, vague and incapable of putting into execution is void.
\nNo probate could be granted.\n<\/p>\n
28.   Insofar as the plea taken by the appellant and respondent No.1
\nregarding vagueness of the Will, it is apparent from a reading of the Will
\nas discussed above that the Will bequeaths the entire front portion of
\nthe House No.C-66, Soami Nagar, New Delhi-17 his daughter Mrs.
\nBeena Joshi Sharma except one bedroom opposite to kitchen of the said
\nportion.   The Will also bequeaths the rear portion consisting of two
\nbedrooms to two sons of the deceased namely, Prem Swaroop Joshi and
\nBasant Kumar Joshi along with common corridor & Kitchen.\n<\/p>\n
29.   Now, coming to the first floor, the Will makes the following
\nprovisions:\n<\/p>\n
           (a) Space over front portion – may be built by my son
\n           Sahab Swaroop when convenient to him, so as to have
\n           decent accommodation when he settles down in Delhi
\n           permanently after his retirement from Govt. Service in
\n           M.P., or earlier according to his choice.\n<\/p><\/blockquote>\n
FAO 248\/1996                                                   Page 11 of 21<\/span><\/p>\n
            (b) Space over rear portion 1st floor – Gur Swaroop
\n           Joshi my son is permitted to build one room in
\n           continuation of the space above the kitchen of the rear
\n           portion. He will have to pay the cost of land (roof
\n           portion) (a) 1\/3 portion of the market rate of land on
\n           the date of construction by him. He is also permitted
\n           to construct lavatory bath and kitchen by paying the
\n           cost of land as stated i.e. 1\/3 of the market rate of
\n           land on date. The cost of land paid by Gur Swaroop
\n           Joshi will be shared by Prem Swaroop Joshi & Basant
\n           Kumar Joshi equally.\n<\/p><\/blockquote>\n
30.   This division of the shares of the property at the first floor divides
\nspace over the first floor in two parts. The space over front portion has
\nbeen given to Sahab Swaroop Joshi who has been authorized to build
\nup a house in that portion after he settles down in Delhi permanently
\nafter his retirement from Government service in M.P.          There is no
\nvagueness in the aforesaid bequeath.       As far as the rear portion is
\nconcerned, the said space has been given to Gur Swaroop Joshi where
\nhe has been authorized to build one room in continuation of the space
\nabove Kitchen of the rear portion subject to certain obligation that he
\nwill pay the cost of land on the proposed date of construction by him.
\nThus, if he wants to enjoy the property he would be entitled to do so
\nsubject to payment of the market rate of land to be shared by Prem
\nSwaroop Joshi & Basant Kumar Joshi equally. This clearly demarks
\nthe portion which has been given to Gur Swaroop Joshi, respondent
\nNo.2 with a stipulation of payment of market rate of land on the date he
\ndecides to carry out the construction.     There is no vagueness in the
\naforesaid bequeath.\n<\/p>\n
31.   Now coming to the second floor. Smt. Shanti Sharma has been
\npermitted to build over the second floor according to the need.
\nObviously, this right is subject to availability of the second floor.      In
\ncase the construction is not raised on the first floor then this right may
\nnot be available to Smt. Shanti Sharma. It is a matter of record that
\nSmt. Shanti Sharma has not come to the Court to object to the grant of
\nprobate.    Thus, if she has no objection to such bequeath and is not
\ninterested in carrying out construction over the second floor, it cannot
\nbe said that there is any vagueness in the Will.\n<\/p>\n
32.   At this stage, it may be observed here that Sh. Gur Swaroop<\/p>\n
FAO 248\/1996                                                    Page 12 of 21<\/span>
\n Joshi, respondent No.2 who is trying to carry the flag regarding
\nobjections filed by the appellants and himself had withdrawn objections
\nraised by him specifically on 03.08.1994. In facts, after withdrawal of
\nthe objections, it will have to be considered that he has no objection to
\nthe grant of probate.      Merely, because observations were made by
\nHon\u201fble Supreme Court in relation to an interim order passed by this
\nCourt permitting raising of construction by some of the legal heirs or
\nthe beneficiaries does not open the question for grant of probate in toto.
\nIn any event for the reasons stated above, I find that the will is not
\nvague and is capable of execution.\n<\/p>\n
33.   The appellant had also challenged the veracity of the deposition
\nmade by the witnesses led on behalf of the respondent whereas
\nreference has been made to the witnesses examined by them in
\nparticular, prescription R-1 prepared by RW-1 Brig. D.D.Joshi to show
\nincapacity of the deceased to execute the will.\n<\/p>\n
34.   Reliance has also been placed on the statement of Dr.S.S.Joshi to
\nshow regarding ill health of the deceased testator.\n<\/p>\n
35.   It is also submitted that the evidence led by the appellants
\nrevealed that Shri Harbans Lal was suffering from Enlarged Prostate
\nwith retention of urine upto the upper part of abdomen and he was
\ntaken to Army Hospital, Delhi Cantonment on 3.1.1980 by RW-1 Brig.
\nD.D.Joshi.\n<\/p>\n
36.   Criticizing the Will in which no provision has been made for wife
\nof the deceased, it has been submitted that it is unnatural for any
\nperson executed the Will not to make some provision firstly, for his wife
\nand then for his children.\n<\/p>\n
37.   It has also been submitted that the will was disclosed much later,
\nwhich also caused aspersions on the intentions of the respondent.\n<\/p>\n
38.   It may be observed here that according to the respondents the
\nWill was disclosed to all concerned on the 13th day of the death of the
\ndeceased.      After that the widow of the deceased took certain actions
\nwhich brought cloud on the right of the respondent in the property
\nbequeathed to him, and therefore, he filed a probate petition on
\n01.05.1984 which was within 3 years of the date of filing of the suit for
\neviction by Smt. Pushpawati Joshi. In 1983 it was her case that she<\/p>\n
FAO 248\/1996                                                  Page 13 of 21<\/span>
\n was the owner of the property.\n<\/p>\n
39.     In nutshell it appears that thrust of objections taken by the
\nobjectors are threefold; firstly, testamentary in capacity of the deceased
\non account of bad health as alleged by them; secondly, his incapacity
\ndue to the averments made in the written statements that he was not
\nthe owner of the property; and thirdly, the Will was not executed by the
\ndeceased testator which ground appears to have not been pressed by
\nthem rather Smt. Pushpawati Joshi in her cross-examination admits
\nthe Will had been disclosed on the 13th day of the death of the deceased.\n<\/p>\n
40.     There is no handwriting expert examined by the parties to prove\/
\ndisapprove the signatures of the testator or the witnesses on the Will in
\nquestion. The Will is in the hand-writing of the testator as alleged by
\nthe respondent in the examination-in-chief.\n<\/p>\n
41.     In view of the aforesaid, only two objections needs to be
\nconsidered in addition to the vagueness of Will which I have already
\ndiscussed above; one is attestation of the Will by two witnesses who
\nhave come in the witness box. Even though it has been stated by the
\nappellant that the two attesting witnesses, namely, Sh. Karam Narain
\nKhanna and Dr. N.N. Tandon have not attested the said Will, however,
\nboth these witnesses have come in the witness box and have deposed
\nregarding attestation of the Will and its execution by the deceased
\ntestator.      The learned ADJ, in this regard has taken note of the
\ntestimony of these two witnesses inasmuch as it has been observed
\nthat:\n<\/p>\n
            “Before I advert to the testimony of RW1 Brig. D.D.
\n            Joshi regarding deposing state of mind of the testator
\n            at the time of making the Will, I consider it necessary
\n            to deal with the evidence produced by the petitioner on
\n            this aspect of the matter. The petitioner has examined
\n            both the attesting witnesses of the will besides herself
\n            in her evidence.     They all have deposed in their
\n            statement on oath that the testator was in a sound
\n            disposing state of mind on 3.1.1980 when he made his
\n            will Ex.P.1. There is nothing in the cross-examination
\n            of any of the PWs which may create a doubt on the
\n            disposing state of mind of the testator at the relevant
\n            time when he executed his will Ex. P.1.”\n<\/p><\/blockquote>\n
42.     Going through the statement of these two witnesses, I find that
\nnothing material has been taken out from their cross-examination
\nFAO 248\/1996                                                    Page 14 of 21<\/span>
\n which may discard their testimony. No contrary evidence which may
\nestablish that either two witnesses had not signed the Will Ex.P-1 or
\nthat their signatures were forged has been led on behalf of the appealnt
\nor even by respondent No.2.\n<\/p>\n
43.   Now, therefore, the only other point which needs to be dealt with
\nis the medical testimony regarding illness of the deceased testator and
\nthe effect of such illness on the testamentary capacity of the deceased.
\nIn this regard, the only evidence which has been led on behalf of the
\nobjectors is the deposition of RW-1, Brig. D.D. Joshi, who in his
\nstatement-in-chief has deposed that he was employed as a Chief
\nconsultant Urology and was posted in the Army Hospital, Delhi Cantt.
\nat the relevant time and that he had received a telephonic call on
\n3.1.1980 at about noon time informing him that his cousin        brother
\nSh.H.L.Joshi was seriously ill. He deposed that he had examined the
\ntestator and found him suffering from enlarge prostate with retention of
\nurine upto the upper part of the abdomen and he took him in his car to
\nthe Army Hospital, Delhi Cantt and with the help of his assistant
\ninserted indwelling catheter and thereupon he passed urine in the bag
\nattached therewith.   He further deposed that the condition of the
\ntestator was stabilized after about 3 hours and he thereafter brought
\nhim back to his house in his car and remained with him till about 7 PM
\nthat evening. He also stated that he had written the prescription Ex.
\nR-1 upto the portion encircled \u201eX\u201f on 3.1.1980 and he again went to the
\nhouse of the testator in the evening of 4.1.1980, at about 4 PM and
\nfound him in the same condition. This witness further stated that the
\ntestator was suffering from the aforesaid disease for about one year
\nprior to 3.1.1980 but he did not know about his sickness before that
\nday, as he was treated by some other doctor. He stated that he had
\nreferred the testator to Urology department in AIIMS to his friend Dr.
\nSurender Man Singh, head of the Urology Department, where he was
\noperated upon for enlarge prostrate after about one year of Jan. 1980.
\nAccording to RW1 Dr.Joshi, the testator was not in a position to move
\nabout and go to Bhogal on 3.1.1980. In Cross-examination RW1 stated
\nthat he was not maintaining any diary as he was in Govt. service. He
\nfurther deposed in his cross-examination that he had deposed about his<\/p>\n
FAO 248\/1996                                                 Page 15 of 21<\/span>
\n having examined the testator on 3.1.1980 only after seeing his
\nprescription Ex. R-1.       He could not tell specifically who had
\naccompanied him with the testator on the day he took him in his car for
\ntreatment to Army Hospital, Delhi cantt. and stated that no entry was
\nmade in the record of the Army Hospital regarding treatment having
\nbeen given to the testator. He denied the suggestion of the petitioner\u201fs
\ncounsel that he was called to the house of the testator for his alleged
\nsickness on 31.1.1980 and not on 3.1.1980.\n<\/p>\n
44.   The learned ADJ further observed that:\n<\/p>\n
          “The objectors have tried to create doubt on the
\n          genuineness of the will in question by showing that the
\n          testator was suffering from such a sickness on
\n          3.1.1980 that it was not possible for him to execute a
\n          Will on that date. The case of the petitioner is that the
\n          testator was being treated for urinary problem by RW1
\n          Dr. Joshi on 31.1.1980 whereas the case of the
\n          objector is that he was so treated on 3.1.1980 and not
\n          on 31.1.1980. In this context the date of treatment of
\n          the testator for his urinary problem assumes
\n          significance.    When RW1 was asked in his cross
\n          examination whether 3.1.1980 the date which he gave
\n          alleged treatment to the testator was a holiday or
\n          working day he simply replied that he did not
\n          remember. The petitioner who appeared as her own
\n          witness is quite emphatic on this aspect. She stated
\n          in her cross-examination that her father was taken to
\n          the Army Hospital, Delhid Cantt. On 31.1.1980 and
\n          she stated that she remember the said date as it was a
\n          gazette holiday and was at her home when she
\n          received telephonic call from her brother regarding
\n          illness of her father.     It has come in the cross-
\n          examination of RW1 that he has deposed about the
\n          date of 3.1.1980 on the basis of his prescription R-1.
\n          It will be pertinent to note here that when objections
\n          were filed by the objectors, they have not stated
\n          anything about the alleged treatment given by RW1 Dr.
\n          Joshi to the testator on 3.1.1980 and also regarding
\n          the prescription Ex.R-1. PW3 who is the petitioner
\n          himself was cross-examined on 19.02.1986 and it was
\n          suggested in her cross-examination on that day that
\n          her father remained admitted for one night in Army
\n          Hospital, Delhi Cantt. On 3.1.1980, RW1 Dr. Joshi
\n          stated in his statement that the testator was brought
\n          back to his house after he was kept in observation
\n          there in the Army Hospital for 3 hours and this
\n          contradictory stand taken from the objectors side tend
\n          to show that the objectors were probably in the
\n          process of manipulating the prescription Ex.R-1.\n<\/p><\/blockquote>\n
FAO 248\/1996                                                   Page 16 of 21<\/span><\/p>\n
           Prescription Ex.R-1 was not filed by the objectors
\n          alongwith their objections and they filed the photo
\n          copy fo the said prescription for the first time on
\n          11.4.1985. The manner and style of writing the date
\n          3.1.1980 and 4.1.1980 on Ex.R-1 prima facie creates a
\n          doubt about the date of treatment of the testator. It
\n          appears to me that the date of 31.1.1980 has been
\n          changed on Ex.R-1 by converting the digit \u201e1\u201f of date
\n          \u201e31\u201f into a long stroke after the digit \u201e3\u201f of the said date
\n          so as to give an impression as if the testator was
\n          treated on 3.1.1980 and not on 31.1.80 which is the
\n          case of the petitioner. No authentic medical record
\n          has been produced from the objectors side either from
\n          the Army Hospital or from any other Hospital to show
\n          that the testator was actually treated for his alleged
\n          ailment on 3.1.1980 and not on 31.1.1980.”\n<\/p><\/blockquote>\n
45.    The aforesaid discussion points out that firstly, the witness who
\nwas examined by objectors to prove the illness of the deceased testator,
\nonly refers to his treatment with regard to his Enlarged Prostate on a
\nparticular day about which also he is not sure as to whether it is
\n3.1.1980 or 31.1.1980 while according to the respondent it is 31.1.1980
\nand as observed by the learned ADJ the documents Ex.R-1 contains
\nsome overwriting\/manipulation. This shows that the evidence led on
\nbehalf of the appellants was not trustworthy.\n<\/p>\n
46.    Even if it is presumed for the sake of arguments that the
\ndeceased testator was suffering from enlargement of prostate gland,
\nthere is no evidence that such ailment was such which would disentitle
\nor would incapacitate the deceased testator to execute the Will.
\nTherefore, the objections with regard to illness of the deceased testator
\nas a ground that he was incapable of executing the probate is also of no
\nconsequence and the same has been rightly rejected by the learned
\nADJ.\n<\/p>\n
47.    Before dealing with the next point it taken by the appellant i.e.
\nmaking no provision for the widow of the deceased, I may observed that
\ninsofar as the execution of the Will in question is concerned, it has been
\nproved by the propounder of the Will i.e. respondent No.1 and the two
\nwitnesses who have deposed on oath that the deceased testator had
\nexecuted the Will Ex.P-1 in his own handwriting in their presence on
\n03.01.1980 and he has signed at point \u201eA\u201f after reading it and they had
\nalso signed on the said Will at points \u201eB\u201f and \u201eC\u201f in presence of each
\nFAO 248\/1996                                                      Page 17 of 21<\/span>
\n other. In the cross-examinations of these two witnesses nothing could
\nbe taken out so as to controvert their deposition. No suggestion was
\ngiven to any of the attesting witness that the handwriting and
\nsignatures on the Will Ex.P-1 was not that of the deceased testator.
\nDespite taking a plea that Ex.P-1 was not in the handwriting of the
\ndeceased testator as stated by RW-2, no evidence to prove such a fact
\nhas been led. There is also contradiction in the statement of RW-2 and
\nRW-3 who stated that the Will was disclosed at the time of tehravi of the
\ndeceased testator and have only tried to avoid answering regarding
\nhandwriting of the deceased testator when she had specifically asked
\nabout it. More over in the case of Shashi Kumar Banerjee Vs. Subodh
\nKumar Banerjee, AIR 1964 SC 529, it was held as under:\n<\/p>\n
          “The mode of proving a will does not ordinarily differ
\n          from that of proving any other document except as to
\n          the special requirement of attestation prescribed in the
\n          case of a will by Section 63 of the Indian Succession
\n          Act. The onus of proving the will is on the propounder
\n          and in the absence of suspicious circumstances
\n          surrounding the execution of the will, proof of
\n          testamentary capacity and the signature of the testator
\n          as required by law is sufficient to discharge the onus.
\n          Where however there are suspicious circumstances,
\n          the onus is on the propounder to explain them to the
\n          satisfaction of the court before the court accepts the
\n          will as genuine.”\n<\/p><\/blockquote>\n
48.   In view of the aforesaid, the learned ADJ was right in holding that
\nrespondent No.1 had proved the execution and attestation of the Will in
\nquestion.\n<\/p>\n
49.   Now coming to the last point i.e. suspicion on the Will in view of
\nthe widow of the deceased having not given any share in the property, I
\nmay observed that the issue has been discussed by the learned ADJ in
\npara-12 of impugned judgment:\n<\/p>\n
          “12.     It was argued by the learned counsel for the
\n          objectors that the very fact that the testator has not
\n          given anything to his wife in his Will Ex.P1 itself
\n          creates a strong suspicion on its genuineness.
\n          Learned counsel for the objectors has relied upon two
\n          judgments of the Hon\u201fble Supreme Court of India, 1) In
\n          Ram Piari Vs. Bhagwanti & Ors. AIR 1990 SC 1742
\n          and the other in Kalyan Singh Vs. Smt. Chotti, AIR
\n          1990 SC 396, in support of his above arguments. I
\nFAO 248\/1996                                                  Page 18 of 21<\/span>
\n           have carefully gone through both these judgments but
\n          they are not applicable in the facts and circumstances
\n          of the present case. In the case of Ram Piari Vs.
\n          Bhagwanti (Supra) the Will by which the testator had
\n          disinherited his daughter was held to be unnatural by
\n          the Hon\u201fble Supreme Court for several other
\n          suspicious circumstances existing in that case and
\n          prominent amongst them being that the testator in
\n          that case had thumb marked on his Will whereas it
\n          was proved on record that he was fully capable of
\n          signing and the other strong suspicious circumstance
\n          existing in that case was that the scribe who executed
\n          the will had found the testator covered with quilt in
\n          the afternoon of August at the time of his visit to his
\n          house. No such suspicious circumstances exist in the
\n          present case. Similarly, in the case of Kalyan Singh
\n          Vs. Smt. Chhotti (Supra) there were several other
\n          suspicious circumstances apart from the fact that the
\n          testator had disinherited his own wife while making
\n          his Will. Therefore, the objectors cannot take any
\n          dividend out of any of the aforesaid two judgments of
\n          the Hon\u201fble Supreme Court.          In Rabinder Nath
\n          Mukherjee Vs. Panchanan Banerjee (Dead) by L.Rs. &
\n          Ors. AIR 1995 SC 1684, it was held as under:\n<\/p><\/blockquote>\n
          “Deprivation of natural heirs should not raise any
\n          suspicion because the whole idea behind execution of
\n          will is to interfere with the normal line of succession.
\n          So natural heirs would be debarred in every case of
\n          will; of course, it may be that in some cases they are
\n          fully debarred and in others only partially.\n<\/p><\/blockquote>\n
          13.       Applying the ratio of the law laid down by the
\n          Hon\u201fble Supreme Court of India in the aforementioned
\n          cases, I do not find Will Ex.P1 to be suspicious merely
\n          on account of the fact that the testator had
\n          disinherited his own wife from succeeding to his
\n          estates after his death. I have gone through the
\n          contents of the Will Ex.P1 very carefully. The testator
\n          by his Will (Ex.P1.) in question has given some or the
\n          other share to each of his children except his widow.
\n          The Will was made by the testator on 3.01.1980 and
\n          the widow of the testator is living peacefully with her
\n          sons till now. The testator is stated to have died on
\n          5.3.1991 and there is nothing on record to suggest
\n          that the widow of the testator has faced any problem
\n          with her children either regarding her residence or for
\n          her maintenance. As such, I hold that the Will of the
\n          testator cannot be said to be suspicious since he had
\n          disinherited his wife from succeeding to his estate.”\n<\/p><\/blockquote>\n
50.   In this regard, Supreme Court in the case of Savithri & Ors. Vs.<\/p>\n
FAO 248\/1996                                                  Page 19 of 21<\/span>
\n Karthyayani Amma & Ors. (2007) 11 SCC 621 has also observed as
\nunder:\n<\/p>\n
          “22.      Deprivation of a due share by the natural
\n          heirs itself is not a factor which would lead to the
\n          conclusion that there exist suspicious circumstances.
\n          For the said purpose, as noticed hereinbefore, the
\n          background facts should also be taken into
\n          consideration. The son was not meeting his father. He
\n          had not been attending to him. He was not even
\n          meeting the expenses for his treatment from 1959,
\n          when he lost his job till his death in 1978. The testator
\n          was living with his sister and her children. If in that
\n          situation, if he executed a Will in their favour, no
\n          exception thereto can be taken. Even then, something
\n          was left for the appellant.”\n<\/p><\/blockquote>\n
51.   Issue with regard to delay in filing the probate petition was also
\nraised by the appellant and respondent No.2 inasmuch as the probate
\nwas filed after 4 years of the death of the deceased. However, in this
\nregard it may be observed here that a plausible explanation has been
\ngiven for the time in filing of the probate petition by answering the
\nquestion put to her in this regard.     The question put to her and the
\nanswer given by her is quoted hereunder for reference:\n<\/p>\n
          “Q.       Please tell the court as to why you kept quiet
\n          with the will for more than 3 years before filing the
\n          petition in court?\n<\/p><\/blockquote>\n
          A. For about 2 years or so, after the death of my father
\n          my elder brothers had been trying to persuade me not
\n          to take advantage of the Will and any fight in the
\n          property. They even offered me some consideration. A
\n          part of the house is with tenant and I did not want to
\n          assert my right and claim the rent from the tenant
\n          who is in occupation of the portion bequeathed in my
\n          favour, during the life time of my mother but since at
\n          the instance of my brothers my mother filed suit
\n          against the tenant, claiming title in the property, I had
\n          to file this petition.\n<\/p><\/blockquote>\n
                 I had disclosed to my brother Dr. S.S. Joshi that
\n          my father had executed the Will in my favour, I had
\n          disclosed him that this fact when he came to meet me
\n          after 5-7 months of the death of my father and my said
\n          brother had told this fact to my mother and other
\n          brother and thereafter my brothers had been
\n          persuading me not to claim any right in the property.\n<\/p><\/blockquote>\n
FAO 248\/1996                                                   Page 20 of 21<\/span><\/p>\n
           The persuation was by my two elder brothers Dr. S.S.
\n          Joshi and Sh. G.S. Joshi.”\n<\/p><\/blockquote>\n
52.   There is another aspect which also supports filing of the probate
\npetition little later and also reflects as to when the cause of action had
\narisen for filing of the probate petition. This is relevant in view of the
\nlaw as applicable in Delhi which does not require a probate to be filed in
\nrespect of a Will is that :\n<\/p>\n
          “RW3 is the widow of the testator has admitted in her
\n          cross-examination that she had filed a suit for eviction
\n          against the tenant on the ground floor of the property
\n          in August, 1983. The present proceedings were filed
\n          by the petitioner on 1st May, 1984.”\n<\/p><\/blockquote>\n
53.   It has been argued on behalf of the respondent that Smt.
\nPushpawati Joshi, the widow of the testator in the eviction petition filed
\nby her described herself as the full owner of the property which had
\ngiven rise to the cause of action in favour of the respondent to seek
\ndeclaration that it was she who was the owner of the property.\n<\/p>\n
54.   There is no dispute that the deceased was the owner of the
\nproperty. Merely because some loans were taken by his daughter and
\nwhich are yet to be paid would not deprive the respondent to file the
\nprobate petition.\n<\/p>\n
55.   In view of the aforesaid, I find no infirmity in the order granting
\nprobate of the Will Ex.P-1 dated 03.01.1980 in favour of respondent
\nNo.1. The appeal filed by the appellant is accordingly, dismissed with
\nno order as to costs. Trial court record be sent back forthwith along
\nwith a copy of this order.\n<\/p>\n
CM Nos. 4512\/1999, 1226\/2000 & 20938\/2010<\/p>\n
      Dismissed as infructuous.\n<\/p>\n
                                            MOOL CHAND GARG,J
\nFEBRUARY 17, 2011
\n‘ga\/anb’<\/p>\n
FAO 248\/1996                                                  Page 21 of 21<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Pushpawati Joshi (Thr. Lrs … vs Beena Sharma & Ors on 17 February, 2011 Author: Mool Chand Garg * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO 248\/1996 % Reserved on: 10.02.2011 Decided on :17.02.2011 PUSHPAWATI JOSHI (THR. LRS CHANDRAKALA JOSHI & ORS) ….. Appellants Through Mrs. C.K. Joshi, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-206659","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nPushpawati Joshi (Thr. 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