$~23
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TEST.CAS. 98/2008
Decided on 16th April, 2012
GOPAL KRISHAN S/O DR. ISHWAR
SAHAI ..... Petitioner
Through: Mr. Vivek. Gupta, Adv.
versus
STATE OF DELHI & ORS ..... Respondents
Through: Mr. Saket Agarwal, Adv. for
R-2 to R-4.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J. (ORAL)
1. Petitioner has filed this petition under Section 276 of the Indian Succession Act,1925 (hereinafter called "the Act"). Petitioner has prayed that probate of Will dated 23 rd January, 1989 of Late Shri Nirankar Narain Saxena (hereinafter called "Testator") may be granted to him.
2. Section 222 of the Act provides that probate can only be granted to an executor appointed by the will. During the course of hearing it has been admitted by the counsel for the petitioner that no executor has been appointed in the Will by the Testator. Accordingly, probate cannot be granted. However, Section 232 of the Act provides that when deceased has made a will, but has not TEST CASE NO. 98/2008 Page 1 of 5 appointed an executor, or deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the will, or executor dies after having proved the will, but before he has administered all the estate of the deceased, an universal or a residuary legatee can be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate. It is Section 278 of the Act which deals with the applications for Letters of Administration. Petitioner is the beneficiary under the Will. Accordingly, present petition is treated under Section 278 of the Act.
3. It is alleged in the petition that Testator was maternal uncle of the petitioner and respondent nos. 2 to 7. Testator was unmarried. He had two sisters namely Smt. Urmila Raizada and Smt. Kamala Saxena. Both of them have since expired. Petitioner is son of Late Smt. Kamla Saxena. Respondent nos. 2 to 4 are his brothers. Respondent nos. 5 to 7 are children of Late Smt. Urmila Raizada. Testator had executed a registered Will dated 23rd January, 1989 which was his last Will and testament. This Will was executed by the Testator, in presence of two witnesses whose names appear at the foot of the Will. Vide this Will, Testator had bequeathed all his movable and immovable properties including Flat No. 12/D, 3rd Floor, Guru Teg Bahadur Enclave, Delhi - 11993 to petitioner, TEST CASE NO. 98/2008 Page 2 of 5 subject to a condition that in case petitioner sells the said flat he shall retain 50% of the sale amount and remaining 50% shall be distributed equally amongst the petitioner and his younger brother, that is, defendant no. 2. Testator was maintaining two bank accounts as detailed in para 7 of the petition and was also having National Saving Certificate as detailed in para 8 of the petition. Testator expired on 28th February, 2006. In these facts, petitioner seeks Letters of Administration with the Will annexed in respect of the whole estate of Testator.
4. Respondent nos. 5 to 7 were served by way of publication of notice in the newspapers "Amar Ujala". Despite service no one appeared in Court on behalf of defendant nos. 5 to 7. Thus, they were proceeded against ex-parte vide order dated 5th October, 2010. As regards respondent nos. 2 to 4 are concerned, they have appeared through their counsel and have filed affidavit of „no objection‟ to the grant of probate to the petitioner.
5. Citation was also published in the newspaper "Amar Ujala" (Bareilly and Allahabad edition) inviting objections from the general public against the grant of Probate/Letters of Administration. However, no one has filed any objection, pursuant to the said publication.
6. Respondent no. 1 has been duly served. No reply has been TEST CASE NO. 98/2008 Page 3 of 5 filed by the respondent no. 1, however, valuation report has been filed by the Office of Sub Division Magistrate, Seemapuri, Nand Nagri, Delhi and the same is on record.
7. There is no opposition to the grant of Letters of Administration to the petitioner. Petitioner has led evidence by way of affidavits. Petitioner has filed his own affidavit in which he has corroborated the averments made in the petition which have been reproduced hereinabove. Petitioner (PW1) has proved the death certificate of Testator as Ex. PW1/1. Registered Will dated 23rd January, 1989 of the Testator has been proved as Ex. PW1/2. One of the attesting witnesses of the Will, namely, Dhirendra Khanna has been examined as PW2. In his affidavit, he has deposed that he was attesting witness to the Will dated 23rd January, 1989 executed by Shri Nirankar Narain Saxena. Will dated 23rd January, 1989 is the last Will and testament of Late Shri Nirankar Narain Saxena. Testator had signed and executed the Will in his presence as well as in the presence of D.S. Kanare. All of them had signed at the same time in presence of each other. Will was registered with the Office of Sub Registrar, Muradabad. He has further deposed that Will dated 23rd January, 1989 is the same Will which was executed by the Testator in his presence and in the presence of other attesting witness Shri D.S.Kanare.
TEST CASE NO. 98/2008 Page 4 of 5
8. In view of the testimony of PW1 and PW2 and the documents placed on record, I am satisfied that petitioner has succeeded in proving that Testator had executed the Will dated 23rd January, 1989 which is his last Will and testament. That apart, none of the relatives of respondents have come forward to challenge the Will, inasmuch as, they have given no objection certificates. Above all, Will has to be properly proved by producing, at least one of the attesting witnesses, which petitioner has done. PW-2 has categorically deposed that the Testator has executed and signed the Will in his presence and in the presence of other attesting witness inasmuch as same was duly registered with the Sub Registrar Muradabad. Accordingly, I do not find any impediment in granting Letters of Administration to the petitioner in respect of the Will of testator.
9. For the aforesaid reasons, Letters of Administration is granted to the petitioner with the Will dated 23rd January, 1989, subject to petitioner paying requisite Court Fee and furnishing Administrative Bond with one surety, to the satisfaction of Registrar General of this Court.
10. Petition is disposed of in the above terms.
A.K. PATHAK, J.
APRIL 16, 2012/ga TEST CASE NO. 98/2008 Page 5 of 5