Smt. Parvati Sharma vs State
2012 Latest Caselaw 4674 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Judgment delivered on: 07.08.2012

+      TEST.CAS. 18/2007

       SMT. PARVATI SHARMA                                 ..... Petitioner
                     Through :           Mr. Praveen Pahuja, Adv.

                    versus

       STATE                                               ..... Respondent
                             Through :   Mr. Arun Khosla, Adv.

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                             JUDGMENT

V.K.JAIN, J. (ORAL)

TEST.CAS. 18/2007 & IAs 3314/2007(u/S.151 CPC), 6541/2007(u/S.151 CPC), 8968/2007(u/S.192, 247 & 269 of Indian Succession Act), 2680/2010, CCP 98/2007

1. This is a petition for grant of letter of administration in respect of the Will

alleged to have been executed by late Shri Bishan Dass Sharma on 28.10.2002.

Late Shri Bishan Dass Sharma died on 19.02.2007. This petition was filed by his

widow - Smt. Parvati Sharma. Late Shri Bishan Dass Sharma was survived by his

wife, three daughters and two sons. Smt. Parvati Sharma died during pendency of

this petition on 19.10.2009. IA 2680/2010 has been filed by her son namely Shri

Ajay Sharma. The other son Sanjay Sharma is represented by Mr. Arun Khosla

whereas the daughters are represented by Mr. Vikas Mehta. All the counsels state

that no one is now the opposing grant of letter of administration. Mr. Khosla states

that the objections which his client Sanjay Sharma had filed may be treated as

withdrawn. All the parties are now admitting genuineness of the Will set up in the

petition.

2. The Will purports to have been executed in the presence of two attesting

witnesses namely Mr. S.P.Tandon and Mr. J.P.Jain. The affidavit of

Mr.S.P.Tandon has already been filed along with the petition. In his affidavit, Mr.

S.P.Tandon had stated that late Shri Bishan Dass Sharma had signed the Will in his

presence and the presence of other witness Mr. J.P.Jain, all of whom were present

at the same time.

3. The execution of an unprivileged Will is governed by Section 63 of Indian

Succession Act which, to the extent it is relevant, provides that the Will shall be

attested by two or more witnesses, each of whom has seen the Testator sign or affix

his mark to the Will or has seen some other person sign the Will, in the presence

and by the direction of the Testator, or has received from the Testator a personal

acknowledgment of his signature or mark, or of the signature of such other person;

and each of the witnesses shall sign the Will in the presence of the Testator, but it

shall not be necessary that more than one witness be present at the same time, and

no particular form of attestation shall be necessary. Section 68 of Evidence Act, to

the extent, it is relevant, provides that if a document is required by law to be

attested, it shall not be used as evidence until at least one attesting witness has been

called for the purpose of proving its execution if there be an attesting witness alive,

and subject to the process of the Court and capable of giving evidence. Since the

Will is a document required by law to be attested by at least two witnesses, the

petitioner could have proved it by producing one of the attesting witnesses of the

Will. The execution of the will has been duly proved by way of affidavit of the

attesting witness Mr S.P. Tandon. The execution of the Will thus stands duly

proved. There are no suspicious circumstances surrounding execution of Will in

question.

4. The execution of the Will, which is otherwise being admitted by all the legal

heirs of late Shri Bishan Dass Sharma, has been proved. The petitioner has died

during pendency of this petition. Section 218 of Indian Successions Act deals with

the persons to whom Letter of Administration may be granted, where deceased is a

Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person. To the extent it

is relevant, the aforesaid Section provides that administration of estate of a may be

granted to any person who, according to the rules for the distribution of the estate

applicable in the case of such deceased, would be entitled to the whole or any part

of such deceased' s estate. It further provides that when several such persons apply

for such administration, it shall be in the discretion of the Court to grant it to any

one or more of them. The learned counsel appearing for Mr Sanjay Sharma, other

son of the petitioner, insists that the Letter of Administration should be granted

jointly to all the legal heirs of the deceased petitioner and not to Shri Ajay Sharma,

applicant in IA No. 2680/2010 alone. I see no reason for not acceding to this

prayer made by Shri Khosla. There is no particular reason for granting Letter of

Administration only to one son, when all the children of late Smt. Parvati Sharma

are her Legal Representatives. It is, therefore, directed that Letter of

Administration, with copy of the Will executed by late Shri Bishan Dass Sharma

on 28.10.2002 annexed to it, be issued jointly to all the five children of late Shri

Bishan Dass Sharma and late Smt. Parvati Sharma, namely, Smt. Veena Dhiman,

Smt. Renu Saka, Smt. Anju Sharma, Sh. Ajay Sharma and Sh. Sanjay Sharma.

The petition as well as all pending IAs stand disposed of in terms of this

order.

V.K. JAIN, J

AUGUST 07, 2012 'sn'//