Sh. Bharat Bhushan Sisodia vs State & Ors
2008 Latest Caselaw 2099 Del

*	IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI

						

 	TEST CAS No. 53/2007



							Date of Decision :27.11.2008.





	SH. BHARAT BHUSHAN SISODIA			 ..... Petitioner



				Through Ms. Purnima Maheshwari, Adv.



			Versus



	STATE & ORS.						..... Respondents

Through None

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

1. Whether Reporters of Local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

HIMA KOHLI, J (Oral)

1. The petitioner has filed this petition under Section 276 of the Indian Succession Act, 1925 seeking Letter of Administration in respect of a registered Will dated 04.12.1998, executed by his father, late Sh. Ranvir Singh Sisodia, who expired on 10.7.2004 in Delhi. On the date of his death, the father of the petitioner was survived by his widow, Smt. Chandra Kanta Sisodia (respondent No.2), one daughter(respondent No.3) and one son (respondent No.4) excluding the petitioner. The names of all the relations of the deceased testator are indicated at page 16 of the petition.

2. The present petition for grant of Letter of Administration was filed on 13.9.2007. Summons were issued in the present petition on 18.9.2007, returnable on 06.11.2007. A citation of the present petition was got published in the newspapers 'Statesman' (Delhi Edition) dated 18.10.2007. It is pertinent to note that as one of the properties, subject matter of the Will left by the deceased testator is situated in Noida (UP), a citation was also got published on 18.10.2007, in the Hindi newspaper, 'Dainik Jagran', having its circulation in UP.

3. The service made upon the respondents no. 1 to 3 was recorded in the order dated 06.11.2007. However, none appeared on their behalf, nor was any reply filed to the petition. Summons issued to respondent no. 4 were stated to have been received back with the report that he had expired. It may be noted that respondent no. 4, namely, Sh. Ashok Kumar Sisodia, the son of the deceased testator had expired in the year 2007 itself. Pursuant thereto, an application being I.A. No. 13435/2007 was filed by the petitioner for bringing on record the legal heirs of the deceased respondent no. 4. Notice was issued on the aforesaid application to the respondents no. 2 and 3 as well, as they were the legal heirs of the deceased respondents no. 4, apart from the petitioner. Despite notice being served on the aforesaid parties, as recorded in the order dated 13.2.2008, none appeared on behalf of the said respondents. As a result, the application for bringing on record the legal heirs of the deceased respondent no. 4 was allowed, vide order dated 09.5.2008. Simultaneously, in view of the fact that none appeared on behalf of the remaining respondents no. 2 and 3 in their personal capacity as also as the legal heirs of the deceased respondent no. 4, it was directed that they be proceeded against ex-parte.

4. The Will (Ex. PW2/1) of which Letter of Administration is sought by the petitioner, is a duly registered Will. It was got registered with the office of the Sub-Registrar, vide registration No. 72876 in Addl. Book No. 3, Volume No. 4413, on pages 38 to 41 on 04.12.1998. The said Will is shown to have been attested by two witnesses, namely, Sh. M.C. Soam and Sh. J.B. Malik, Advocate. Sh. J.B. Malik, who is one of the attesting witnesses of the Will in question has filed his affidavit (Ex. PW2/A) by way of evidence, on 24.7.2008 and has deposed that the deceased testator, Sh. Ranvir Singh Sisodia executed his Will dated 04.12.1998 in his presence and also in the presence of another attesting witness, namely Sh. M.C. Soam. Sh. J.B. Malik further deposed that the deceased read the Will in his presence and in the presence of Sh. M.C. Soam, and after being satisfied as to the contents of the same, he signed the Will in the presence of the deponent and also in the presence of the other attesting witness, who in turn signed the Will in the presence of the deceased testator. The witness identified the signatures of late Sh. Ranvir Singh Sisodia and Mr. M.C. Soam, on the Will (Ex. PW2/1) and stated that he deposited the Will before the Registrar to get the same registered. Thereafter, the deceased testator, Sh. M.C. Soam and the deponent appeared before the Sub-Registrar and signed the register. The thumb impression of late Sh. Ranvir Singh Sisodia is taken on the Will and after completing all necessary formalities, the original Will was returned to the testator.

5. The petitioner has also filed his own affidavit dated 24.7.2008 by way of evidence(Ex.PW-1/A). The petitioner has reiterated in his deposition as PW-1 that the averments made in the petition are correct. He has proved the death certificate of the deceased testator (Ex. PW-1/1). The petitioner has further stated in para 2 of his affidavit that the original Will dated 04.12.1998 of the deceased is in the custody of his mother/respondent no. 2 (wife of deceased testator) and that, at the time of executing the Will, the deceased was in sound health.

6. The petitioner has also produced a witness from the office of the Sub-Registrar, Janak Puri, in whose office the Will was registered. Sh. Neeraj Sharma/LDC (PW-3) from the office of the Sub-Registrar, Janak Puri appeared on being summoned along with the relevant records pertaining to the Will dated 04.12.1998. He deposed in Court on 17.11.2008 that he had brought the records pertaining to the aforesaid Will and stated that the same was registered in the office of the Sub-Registrar, Janak Puri, vide registration No. 72876 in Addl. Book No. 3, Volume No. 4413, pages 38 to 41 on 04.12.1998. He also confirmed that the certified copy of the said Will as placed on the record by the petitioner along with the petition was already exhibited as Ex. PW-2/1.

7. Counsel for the petitioner submits that nothing much will turn on the absence of the original Will from the records, as the petitioner has placed on record a certified copy thereof. She relies on the judgement in the case of Rajrani Sehgal vs. Parshottam Lal & Ors., reported at AIR 1992, Delhi 134 to state that the failure to file the original Will with the petition does not affect the maintainability of the petition.

8. The evidence produced by the petitioner to prove the genuineness of the Will dated 04.12.1998 has remained unrebutted and hence there is no reason to disbelieve the petitioner. From the unrebutted testimony on the record, it stands proved that the Will of which Letter of Administration is sought by the petitioner was the last and genuine Will of the deceased, Late Sh.Ranvir Singh Sisodia, which was validly executed by the deceased testator in his full senses. The beneficiaries under the Will are the petitioner, respondent no. 2 and the minor children of respondent no. 3. Although the respondent No.2 is party to the present proceedings and has been served on two different occasions, she has not entered appearance. Further, as per the petitioner, the original Will remains in the power and possession of respondent No.2, who has failed to appear in the present proceedings. Though the provisions of Section 276 are silent as to whether the original Will is required to be annexed to the petition, in the present case, the Will being a registered document, the petitioner has proved the genuineness and validity thereof, by summoning the records from the office of the Registrar of Assurances. Counsel for the petitioner is justified in relying on the following observations in the case of Rajrani Sehgal (supra), wherein the Court observed that as the copy of the Will which is filed before the Sub-Registrar is prepared at the same time, and bears the signatures of the testator and the attesting witnesses, a certified copy of the said document is as good as the original. A reference to paras 50 to 52 is relevant:

"50. Before concluding, I would like to deal with a technical objection raised by learned Counsel for the appellant as to the original will having not been filed with the petition under Sections 276/278 of the Act. It is in evidence that the original will was not in possession of the petitioner nor he had any access to it and even no knowledge of the fact as to in whose possession it was. He did his next best, and applied for a certified copy to the Sub-Registrar's office and after obtaining the same applied for probate, annexing the said copy with the petition. The objection raised by Mr. Lonial seems to be misconceived, based on a misreading of provisions of law because all that Section 276 of the Act requires is that the application for probate or letters of administration shall be made with the will annexed. This will could be the original will or the certified copy from the Sub-Registrar's office, which has to be treated on an equal footing with the original because of the provisions of Section 62 of the Indian Evidence Act.

51. It is a matter for judicial notice that the copy, which is filed before the Sub-Registrar is the one prepared at the same time as the original, and bears signatures of the testator, and the attesting witnesses, and when a certified copy is given of such a document, it is to be treated as good as original. As noted by Sarkar in Law of Evidence, 13th edition, Volume I, page 631 that in cases where copies of original documents are made under public authority, these rank as primary evidence. He has given illustration of the probate of a will. Certified copy of the will is also prepared under official authority, and prepared from the will filed in original containing signatures of the testator and the attesting witnesses, and can certainly be treated as primary evidence. Moreover, the irregularity if any, had been cured at the initial stage of the proceedings because the learned District Judge got the certified copy produced from the office of the Sub-Registrar and have it placed on record after the clerk from that office stated that he had brought the record maintained in the office of the Sub-Registrar, Kashmere Gate and that register contained a copy of the will signed by the testator and the attesting witnesses and that it was equivalent to the original. From the very wordings of Section 276 of the Act, it cannot be said that the failure to annex the original will would be fatal. The defect, if any, had been cured and condoned by the District Judge when he received the certified copy from the Sub-Registrar's office, after satisfying that a duly signed and attested copy of the will existed in the records of the Sub-Registrar and was as good as primary evidence of the original. Even the law contemplates grant of probate in certain cases as contained in Sections 237 to 239 of the Act, in the absence of original will. The failure, therefore, to annex the will in original with the probate petition would not vitiate the proceedings, nor invalidate grant of letters of administration.

52. The intention appears to be that the original will should be on record so that the signatures of the testator and the attesting witnesses are open for examination of the objector, if any. That situation has been taken care of because the certified copy that was produced also contained signatures and had been proved as Ex. P.1 and in any case the original will had also subsequently come on record and there is not even a whisper of a suggestion from the side of the appellant that the signatures on the will purporting to be that of deceased Shri Godar Mal are not his genuine signatures." (emphasis added)

9. Even in the present case, the petitioner has stated that the original Will is not in his possession and he does not have access to the same. In the absence thereof, the petitioner has filed a certified copy of the Will and also summoned the original records from the office of the Registrar of Assurances, containing a copy of the Will signed by the testator and the attesting witnesses. Hence the same can be treated as a primary evidence of the original Will.

10. In view of the above and having regard to the facts and circumstances of the case, it is ordered that Letter of Administration in respect of the Will (Ex. PW-2/1) be granted in favour of the petitioner on his depositing the requisite court fees and on his furnishing the administration bond, for due administration of the estate of the deceased, in accordance with the wishes of the deceased.

11. The Will (Ex. PW-2/1) shall be kept in safe custody. The petition stands disposed of.

HIMA KOHLI,J

NOVEMBER 27, 2008

KA