Delhi High Court
M.P. Aggarwal vs State on 8 December, 2009
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ Test Case No.1/2008
M.P. Aggarwal ....Petitioner
Through : Mr. Amit Anand Tewari, Adv.
Versus
State ....Respondent
Through : None
Reserved on : 9th November, 2009
Decided on: 8th December, 2009
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
MANMOHAN SINGH, J.
1. By the present petition under Section 276 of the Indian Succession
Act (hereafter called "the Act"), the petitioner seeks a probate in respect
of the Will dated 2nd March, 1987 (hereafter called "the Will") of late
Smt. Jamna Devi (hereafter called "the testator"). The testator died on
27th December, 1993.
2. The petitioner in the petition states that the testator left behind
certain properties details of which are mentioned in the Will. The
petitioner is the executor of the will. Along with the petition, the original
will executed by the testator and his death certificate was also filed.
3. The petitioner states that out of properties mentioned in the Will,
asset no. 1 to 4 were disposed of by the testator during her lifetime. The
moveable property consisting of gold, jewellery and cash mentioned as
asset no.6 in the will was equally divided between Mr. Rohit Aggarwal
and Ms. Deepika Aggarwal as stated in the Will at the time of the death
of the testator. It is stated asset no.5 belongs to the property bearing plot
no. 22, Block 'K', Green Park Main, New Delhi(hereinafter referred to
as the 'suit property') admeasuring 311 sq. yds. consisting of a single
storey and was bequeathed to Smt. Madhu Aggarwal W/o Sh. M.P.
Aggarwal with liability to repay the loan.
4. According to the petitioner, Smt. Madhu Aggarwal is in
possession of the said property since 1986 and has cleared all the loan
and liabilities with respect to it. The petitioner states that the testator left
behind the following surviving legal heirs :
a) Saroj Bala
b) Smt. Savitri Devi W/o B.S.Singhal
c) Smt. Vimal Aggarwal, W/o Jagdish Prasad Aggarwal
d) Smt. Madhu Aggarwal
e)Mr. Rohit Aggarwal
f) Ms. Deepika Aggarwal
5. It is stated by the petitioner that the testator executed her last Will
on 2nd March, 1987 which is duly witnessed in the presence of two
witnesses namely Smt. Saroj Bala, r/o A-3, Vivek Vihar, Phase II, New
Delhi and name (not legible), r/o D-64, Panchsheel Enclave, New Delhi
and registered with the Sub Registrar, Asaf Ali Road, New Delhi as
document registered no.923, Addl. Book No. 3, Volume No. 389 on
pages 140-141 on 2nd March, 1987.
6. The petitioner, therefore, prayed that probate be granted in favour
of the petitioner in respect of the Will dated 2nd March, 1987 left behind
by the testator in respect of the above said property.
7. Notice of the petition was issued to the respondents and the Chief
Revenue Controlling Authority on 15th January, 2008. The Chief
Revenue Controlling Authority filed the valuation report in respect of
the suit property. The publication inviting objections to the probate in
favour of the petitioner was also made in ' The Statesman' dated 9 th
February, 2008 and 6th June, 2008.
8. Based on the pleadings, the following issues were framed:-
1. Whether the 'Will' dated 2nd March, 1987 executed by late Smt.
Jamna Devi is the genuine 'Will' ? OPP.
2. Whether the petitioner is entitled to probate of the above 'Will' ?
OPP
3. Relief."
9. Relation No.1 to 6 namely Smt. Saroj Bala, Smt. Madhu
Aggarwal, Smt. Vimal Aggarwal, Ms. Deepika Aggarwal, Mr. Rohit
Aggarwal, Smt. Savitri Devi have filed the no objection by way of reply
to the grant of probate of Will in favour of the petitioner, Sh. M.P.
Aggarwal who is admitted to be the executor of the Will.
10. Smt. Saroj Bala who is one of the attesting witness to the Will in
her reply stated that the Will was executed by her mother out of her own
free will without any coercion, undue influence or force and in her full
senses.
11. On behalf of the petitioner, three witnesses were examined. Mr.
M.P. Aggarwal, the petitioner has examined himself as PW-1. His
affidavit is marked as Ex-Pw1/A confirming the contents of the petition.
12. A local commissioner was appointed by this Court on 15.7.2008
to record the evidence of Smt. Saroj Bala, PW-2 whose statement has
been recorded and exhibited as Ex.PW-1/2. Her examination in chief
was tendered by way of affidavit and marked as Ex.PW2/A. It is stated
by her in cross-examination that the will Ex.PW1/1 bears her signatures
and the same was signed by Smt. Jamna Devi, the testator in her
presence at Sub. Registrar Office, Asaf Ali Road, Delhi. The same was
also signed by Sh. Bhushan Uppal. It is further stated by her that at the
time when the will was signed/executed by Smt. Jamna Devi on
02.03.1987, she was in a sound state of health and the same was
executed by her voluntarily with her own free will.
13. Mr. Ravinder Kumar, LDC from the office of Sub-Registrar,
Asaf Ali Road, New Delhi, was examined as PW-3. It is deposed by
him that Will Ex.PW1/1 is correct and is registered with Sub Registrar,
Delhi as per document No.923, Book No.3, Volume No.389, page
No.140 and 141 dated 02.03.1987. Despite the opportunity being given
to the counsels for the respondents, no cross-examination of PW-3 has
been done
14. I have heard learned counsel for the petitioner. The petitioner and
the attesting witness of the Will, Smt. Saroj Bala have categorically
deposed about the execution of the Will by the testator. The original
Will is exhibited as Ex.PW-1/1 and registered on 2nd March, 1987.
Considering the facts and circumstances, it is inevitable inference that
the testator has executed the Will dated 2.3.1987 in sound disposing
mind without any coercion or undue influence.
15. The respondents No.1 to 6 have filed their no objection to the
grant of probate in favour of the petitioner. The death certificate of the
testator was also filed. The testimony of PW-1, PW-2 and PW-3 fully
supported the case of the petitioner. Consequently, the petitioner is
entitled for grant of probate in his favour in respect of the Will dated
2nd March, 1987 executed by the testator late Smt. Jamna Devi. The
valuation report filed by the Chief Revenue Controlling Authority in
respect of the suit property is accepted. The petition is disposed of.
DECEMBER 8, 2009 MANMOHAN SINGH, J.
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