Sh. Rahul Sharma vs State And Ors.
2012 Latest Caselaw 1702 Del

$~35
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      TEST.CAS. 38/2006

                                      Decided on: 13th March, 2012
       SH. RAHUL SHARMA                               ..... Petitioner
                    Through             :Mr. Sunil Malhotra and Ms.
                                        Vibha Sharma, Advs.

                    versus

       STATE AND ORS.                             ..... Respondents
                    Through             :Mr.    Devendra      Kumar
                                        Sharma, respondent nos. 2 to
                                        3 and LRs of respondent no.
                                        4
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J. (ORAL)

1. By this petition under Section 276 of the Indian Succession

Act, 1925, petitioner has prayed for grant of Probate or "Letters of

Administration" in respect of the Will dated 18th June, 1996 of Late

Smt. Kalawati (hereinafter referred to as "Testatrix").

2. It is alleged in the petition that the Testatrix was a permanent

resident of Delhi at the time of her death. She died on 4 th July,

2000. She was a Hindu. During her life time Testatrix executed

her last Will and testament on 18th June, 1996. Will was executed

by the Testatrix in the presence of two attesting witnesses, namely,

Smt. Santosh and Shri Laxman. First attesting witness is alive.

Second attesting witness has since expired. Will was duly notarized

by a Notary Public. Testatrix had left behind respondent nos.2 to 5

as her legal heirs.

3. Respondent no. 1 was represented through „Chief Revenue

Controlling Authority‟. Valuation report has been filed.

4. Citation was published in the newspaper "The Statesman"

dated 9th August, 2006. No one has filed any objection to the grant

of Probate in respect of the Will dated 18th June, 1996, pursuant to

the publication of citation.

5. As regards respondent nos. 2 to 4, they were duly served and

appeared in Court through their respective counsel. In view of the

death of respondent no. 4, an application was filed by the petitioner

to bring on record the legal heirs of respondent no. 4. Respondent

nos. 2 and 3 have filed "No Objection" stating therein that they

have no objection if Probate of Will dated 18th June, 1996 is granted

in favour of the petitioner. Legal heirs of respondent no. 4 have

also filed "No Objection" to the grant of Probate.

6. Respondent no. 5 has not filed any reply to the petition and/or

objections opposing grant of Probate in favour of petitioner. Vide

order dated 20th March, 2009, respondent no. 5 was granted last

opportunity to file objections, subject to payment of conditional

cost of `5,000/- (Rupees Five Thousand Only). In spite of this,

objections have not been filed by the respondent no. 5. Thus, it can

be inferred that respondent no. 5 has no objection to the grant of

Probate to petitioner.

7. Petitioner has led evidence. He has examined himself as

PW1. Attesting witness to the Will, namely, Smt. Santosh has been

examined as PW2. Both these witnesses have tendered their

respective affidavits in evidence. PW1 has deposed that Testatrix

had executed the Will dated 18th June, 1996, in respect of the

property mentioned therein, along with other documents for sale,

that is, Agreement to Sell, GPA, affidavit, receipt etc. Documents

have been proved by him as Ex. PW1/2 to Ex. PW1/5. He has

further deposed that Smt. Kalawati died on 4th July, 2000. Death

Certificate has been proved by him as Ex. PW1/6. He has

categorically deposed that the Will was executed by the Testatrix in

the presence of Smt. Santosh and Shri Laxman, who are attesting

witnesses to the said Will. Shri Laxman had expired even prior to

filing of this petition. PW1 has proved the Death Certificate of Shri

Laxman as Ex. PW1/7. It is alleged that the petitioner being

beneficiary under the Will, was entitled to the Probate.

8. PW2 Smt. Santosh has deposed that she is one of the witness

to the last Will and testament of the Testatrix Smt. Kalawati. She is

daughter-in-law of the Testatrix. Will bears the thumb impression

of the Testatrix. Will was witnessed by her and Shri Laxman. She

had put her signature on the Will as an attesting witness on 18 th

June, 1996. Testatrix was in sound disposing mind at the time of

appending her thumb impression on the Will. She was present at

the time when Testatrix had appended her thumb impression on the

Will. Her husband Shri Laxman was also present at that time and

had signed in her presence and in the presence of Testatrix.

9. Depositions of PW1 and PW2 have remained unchallenged

as these witnesses have not been cross-examined by the

respondents, inasmuch as, respondent nos. 2, 3 and LRs of

respondent no. 4 have given "No Objection" to the grant of Probate

to the petitioner. Respondent no. 5 has not filed any objections

opposing the grant of Probate to the petitioner, despite the

opportunities granted to him. From the evidence adduced by the

petitioner, it is proved that the Testatrix had executed the Will dated

18th June, 1996 (Ex. PW1/1) and at that time she was in sound and

disposing mind.

10. Section 222 of the Act envisages that Probate shall be granted

only to the „Executor‟ appointed by the will. Sub-Section 2 of

Section 222 of the Act further provides that the appointment may be

expressed or by necessary implication. In the present case, no

named Executor is there in the Will. It is also not the case of

petitioner that „Executor‟ had been appointed by the Testatrix. If

that is so, then Probate in respect of the Will Ex. PW1/1 cannot be

granted. However, Section 228 of the Act envisages for grant of

„Letters of Administration with a copy of Will annexed‟ in case

Will has been proved and deposited in a Court of competent

jurisdiction. Thus, in my view, „Letters of Administration with a

copy of Will annexed‟ can be granted to the propounder of the Will.

In this case, petitioner has propounded the Will and has proved the

same, thus, "Letters of Administration" has to be granted to him.

Accordingly, I do not find any impediment in granting "Letters of

Administration" to the petitioner in respect of the Will dated 18 th

June, 1996.

11. In view of the above discussions, "Letters of Administration"

with copy of Will annexed is granted in respect of Will dated 18th

June, 1996 of Late Smt. Kalawati, in favour of the petitioner,

subject to his paying requisite Court Fee and furnishing

Administrative Bond with one surety to the satisfaction of Registrar

General.

12. Petition is disposed of in the above terms.

A.K. PATHAK, J.

MARCH 13, 2012 rb