Gopal Krishan S/O Dr. Ishwar Sahai vs State Of Delhi & Ors
2012 Latest Caselaw 2435 Del

$~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

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,

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

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.

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