High Court of Delhi

Chander Kanta Pathak vs. State Of NCT Of Delhi and Ors.

MANU/DE/4989/2023

04.08.2023

Family

'Will' is required to be proved by at least one of the two attesting witnesses

The present petition under Section 276 of the Indian Succession Act, 1925 seeks a grant of probate of 'will' dated 09.05.2017 of late Sh. Hans Raj Pathak (“the testator”).It is the petitioner's case that the 'will' was executed by the testator in the presence of two attesting witnesses namely Kulbushan Malhotra and Satish Kumar Ailawadi.

The attesting witness, Kulbhushan Malhotra was examined as PW-2 and he not only identified the signatures of the testator on the 'will' but also categorically stated that he had put his signatures on the 'will' in the presence of the testator and witnessed the testator put his signatures on the 'will'. He further stated that the other attesting witness namely Shri Satish Kumar Ailawadi had also put his signatures on the 'will' in the presence of the testator. The attesting witness to the 'will' namely Satish Kumar Ailawadi, who was examined as PW-3 also testified on the same lines as PW-2.

As per Section 68 of the Indian Evidence Act, 1872 a 'will' is required to be proved by at least one of the two attesting witnesses. In the present case, both the attesting witnesses have deposed that the testator had signed the subject 'will' in their presence. They have also stated that the subject 'will' was executed voluntarily by the testator who was in a sound disposing mind at the time of execution of the 'will'. No objections whatsoever to the petition have been received either from the respondents or from any other member of the general public.

In the light of unchallenged and unrebutted testimony of the petitioner which is supported by the testimony of the two attesting witnesses, present Court is of opinion that, the Petitioner has been able to prove the 'will' dated 9th May, 2017 executed by the testator and being the Executor, she is entitled to be granted probate of the same in her favour. Subject to the Petitioner filing the requisite Court fees, probate of the 'will' dated 09.05.2017 be issued in her favour. Petition allowed.

Tags : Will Probate Grant

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