Shri Jasbir Singh Khanna vs The State And Ors.
2002 Latest Caselaw 1936 Del

JUDGMENT

S. Mukerjee, J.

1. This petition has originally filed, was in respect of immoveable properties at Mohali and Dehradun and moveable properties in form of fixed deposit, units, shares, debentures and Bank accounts.

2. Subsequently the petitioner was able to secure mutation in his favor in relation to the immoveable properties, and in terms of order dated 10th July, 2002, it was recorded that the petitioner is pressing the relief in this probate petition, only in relation to moveable properties in view of the orders passed on IA No. 4089/02.

3. It is also to be noted that vide order dated 16.8.2001 passed in IA No. 2517/01, by Hon'ble Mr. A.K. Sikri, J, in relation to the Dehradun property, upon statement being made that the Group Housing Society has already transferred the said plot in the name of the petitioner, thereupon it had been directed that the probate petition shall now proceed only in respect of Mohali property.

4. Thereafter pursuant to the citation and notices published, the respondents No.2 and 3 had conveyed their "no objection", by means of affidavit and this aspect is also duly recorded both in the said order dated 16.8.01 as well as in the subsequent order dated 1.11.01.

5. Thereafter when the matter was in process for the report of the SDM regarding the valuation of the Mohali property, on 10.7.2002, the learned counsel for the petitioner submitted that the Punjab Urban Development Authority is already processing the matter at an advanced stage in relation to the Mohali property towards transfer of the same in favor of the petitioner, and therefore the probate petition, is not being pressed at all in respect of the said property also. As a result both the immoveable properties were thereupon taken out of the scope of the surviving relief in the probate petition.

6. As regard the moveable properties also, a stand has been taken by the petitioner to the effect that part of the said properties, have also been made over to the petitioner, and therefore he now seeks relief only in respect of the balance remaining portion of the moveable property only, and not even the entire moveable property as referred to in Annexure B to the probate petition.

7. Since the relations had conveyed their "no objection" by way of affidavit, it was therefore directed that the petitioner should adduce evidence by way of affidavit.

8. As per the unrebutted testimony of the petitioner it has come on record that Late Lt. Col. Joginder Singh Khanna died at Delhi on 17.1.1998, and the original death certificate has been duly placed on record as Exhibit P-1.

9. It has also been established by unrebutted evidence that the only relation/legal heirs are Smt. Mohinder Kaur Khanna (widow), Smt. Amrit Kaur Goowar (daughter) and the petitioner (son). Both the widow and the daughter have filed affidavit of no objection to the grant of probate in favor of the petitioner (son).

10. It has been also duly established, by unrebutted evidence, that the deceased made his last Will and testament dated 29.4.1994 which is Exhibit P-2

11. In addition to petitioner's affidavit by way of evidence, the affidavit of Brig. B.V. Ahuja who was an attesting witness, has also bee filed. He has categorically deposed that the Will had been executed by the deceased and attested by Brig. B.V. Ahuja as well as other attesting witnesses Shri S.V. Chelam and Shri Bal Kishore, in the presence of each other, all of them being present and signing the same simultaneously. It has been stated by both the witnesses that the deceased was in good and sound disposing mind and health at that time.

12. The said Will was thereafter also got registered in the office of the Sub-Registrar on 16.1.1995 against the registration particulars as endorsed on Ex. P-2.

13. In view of the above, the execution of the Will has been duly proved in the manner required by Section 63 of the Indian Succession Act and Section 68 of the Evidence Act.

14. The petitioner is the appointed sole executor of the said Will. Both the other two relations have granted their no objection by way of affidavit.

15. As already mentioned here-in-above, the petition has not been pressed in relation to the immoveable properties and that even out of the moveable assets, the relief claimed as only in respect of certain bank accounts, locker and shares of companies referred in Annexure B. The valuation has been provided in terms of the official price list of the Mumbai and Delhi Stock Exchange which are Exhibits P-4 and P-5 respectively. The amounts lying in the Bank accounts with the names of the banks and another details have also been set out to the Annexure B to the probate petition.

16. As regards locker No. 15 with the State Bank of India, R.K. Puram Branch, the valuation has been indicated as approximately Rs. 15,000/-. Considering that the said locker needs to be opened by the directions of this Court, it is ordered that the said locker will be opened by the Manager of the State Bank of India, R.K. Puram Branch, New Delhi, in the presence of the petitioner as well as respondents No.2 and 3 and the advocates representing them on a date to be fixed by Shri. S Chatterjee, Sr. Judicial Assistant of this Court who is appointed as the Local Commissioner for preparing the inventory of the articles which are contained in the locker upon the same being opened as per directions of this Court. His fee is fixed at Rs. 3,000/- to be paid by the petitioner.

17. After the locker is opened and the inventory is prepared, the articles will be either preserved by placing the same back in the locker which shall be closed and locked in the presence of the Local Commissioner appointed by this Court. However if the parties so desire and record there consent, the articles will be handed over to the petitioner in entirety or be apportioned between the petitioner and respondents No.2 and 3, as per the desire conveyed by the parties to the Local Commissioner, provided that with whomsoever the articles or any part thereof be kept, will be on the basis of a superdari bond to produce the same before this Court as and when so required/directed, which bond shall remain in force till the probate papers are issued in favor of the petitioner.

18. In view of the above, the petition for grant of probate in favor of the petitioner in relation to the registered Will dated 29.4.1994 of late Lt. Col. Joginder Singh Khanna (registered on 16.1.1995), is allowed and probate of the said Will, is hereby granted in favor of the petitioner.

19. It is however made clear that the probate will be actually issued only upon the petitioner making payment of the Court fee, on proper evaluation of the properties covered by this order.

20. In view of the deletion of certain moveable and immoveable properties at the instance of the petitioner, the probate as granted shall indicate specifically that it covers only the following properties:-

(i) List of moveable properties as set out in Schedule B.

(ii) Locker No. 15 SBI R.K. Puram, New Delhi.

21. Petition is disposed of as allowed in the above terms. No order as to costs.