Mr. Varinder Sharma & Anr. vs State & Ors.

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          TEST. CAS. No.27/2007
%                                                          29th April, 2016

MR. VARINDER SHARMA & ANR.                       ..... Petitioners
                 Through: Mr. Yajur Bhalla and Mr. Shubham Bhalla,
                           Advocates.

                           versus

STATE & ORS.                                                   ..... Respondents
                           Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.            This testamentary case is filed by the two petitioners namely Sh.

Varinder Sharma and Sh. Nitin Sharma, seeking probate/letters of administration in

their favour of the Will dated 5.12.2006 of their deceased grandfather Sh. Tirath

Ram, a male Hindu who died at Chandigarh on 6.4.2007. Probate petition is filed

at Delhi as deceased died leaving behind a property at Tri Nagar, Delhi.


2.            As per the amended petition filed on 21.1.2008, there are a total of six

respondents but the respondent no.2 is in fact more than one respondent because

there are three respondents no.2A to 2C. Only these respondents no.2A to 2C had

filed their objections. These respondents no.2A to 2C however have thereafter

withdrawn their objections on account of settlement between them and the

petitioners on account of respondents no.2A to 2C receiving certain properties at
Test. Cas. No.27/2007                                                    Page 1 of 4
 Chandigarh. An Order of a learned Single Judge of this Court dated 28.5.2015

accordingly records that respondent nos.2A to 2C are not pursuing their

objections/written statement. In fact, these respondent nos.2A to 2C have also not

led any evidence. So far as the other respondents are concerned, they did not

appear after service and accordingly they were proceeded ex parte on 5.9.2008 and

thereafter issues were framed.


3.            On 5.9.2008 the following issues were framed:-

                   "(i)     Whether the petitioner proves the valid execution and
                   attestation of the Will dated 5th December, 2006 by the deceased
                   testator Sh. Tirath Ram? OPP
                   (ii)     Whether the contesting respondents prove that the
                   testator did not have the capacity to execute the Will due to his
                   illness, and as a consequence the petition should not be granted?
                   OPR
                   (iii)   Relief, if any."

4.            Issue no.(ii) will stand decided against the respondent nos.2A to 2C

because not only they have not led any evidence, but they have in fact withdrawn

their objections to the grant of probate/letters of administration to the petitioners.


5.            At this stage, I may note that since there is no executor appointed

under the Will, no probate can be granted of the subject Will in view of Section

222 of the Indian Succession Act, 1925 and therefore, letters of administration will

have to be granted with the Will annexed once this testamentary case is allowed.


6.            Petitioners have led the evidence of the attesting witness PW-3 Smt.

Kamlesh Sareen who has filed her evidence by way of affidavit dated 26.4.2016. In
Test. Cas. No.27/2007                                                      Page 2 of 4
 this affidavit by way of evidence the attesting witness Smt. Kamlesh Sareen has

deposed with respect to the deceased executant Sh. Tirath Ram Sharma signing the

Will in the presence of the two attesting witnesses and the two attesting witnesses

signing in the presence of the testator/executant/Sh. Tirath Ram. The Will has

been proved and exhibited as Ex.PW4/1. I may note that the earlier affidavits filed

on behalf of the attesting witnesses did not completely depose with respect to the

due execution and attestation of the Will, and therefore, the attesting witness Smt.

Kamlesh Sareen had filed her fresh affidavit on 26.4.2016 regarding the due

execution and attestation of the Will. The Will in fact has been registered before

the Sub-Registrar, Chandigarh on 5.12.2006. In the affidavit dated 26.4.2016, the

attesting witness Smt. Kamlesh Sareen has deposed with respect to Sh. Tirath Ram

executing the Will in sound disposing mind and without coercion or pressure.


7.            Sh. Prem Kishan Dass, Advocate the second attesting witness, has

filed his second affidavit by way of evidence dated 26.4.2016, wherein he has

deposed with respect to he having scribed the Will as also signing as an attesting

witness to the Will. In this affidavit this attesting witness has deposed with respect

to the due execution and attestation of the Will by the testator signing in front of

the attesting witnesses and the attesting witnesses signing in front of the testator.


8.            The death certificate of Sh. Tirath Ram has been proved and exhibited

as Ex.PW1/1. PW-1 is the petitioner no.1 Sh. Varinder Sharma.




Test. Cas. No.27/2007                                                     Page 3 of 4
 9.            In view of the evidence led on behalf of the petitioners, I hold that the

Will of Sh. Tirath Ram Ex.PW4/1 is duly proved. Petitioners are therefore granted

letters of administration of the Will annexed being the Will dated 5.12.2006

executed by Sh. Tirath Ram which is duly registered before the Sub-Registrar,

Chandigarh.


10.           Since the petitioners are the beneficiaries under the Will, letters of

administration will be granted to the petitioners without any administration bond or

surety bond. Petitioners however will pay the court fees as required by law.


11.           Petition is accordingly allowed and disposed of in terms of the

aforesaid observations.




APRIL 29, 2016                                         VALMIKI J. MEHTA, J.

ib Test. Cas. No.27/2007 Page 4 of 4