Pushpa Rani & Ors vs State & Ors
2012 Latest Caselaw 1749 Del

$~21
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      TEST.CAS. 3/2010

                                        Decided on: 14th March, 2012
       PUSHPA RANI & ORS                             ..... Petitioners
                     Through:            Ms. Purnima Maheshwari,
                                         Adv.
                    versus

       STATE & ORS                                    ..... Respondents
                             Through:    None.

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 (hereinafter referred to as the "Act"), petitioners have

prayed for grant of probate of Will dated 15th March, 2007 executed

by Late Shri Dev Raj Sokhal (hereinafter referred to as "Testator").

2. Earlier, petitioner no. 1 had preferred a petition under Section

270 and 276 of the Act before the District Judge, Delhi being

Probate Petition No. 35/2008. Since one of the properties was

situated outside Delhi, the said probate petition was disposed of as

withdrawn vide order dated 7th October, 2009 passed by the

Additional District Judge with liberty to the petitioner to file a fresh

petition on the same cause of action within one month in the court

of competent jurisdiction. Hence the present petition.

3. Petitioner no. 1 is widow and petitioner no. 2 is son of

Testator. Respondent nos. 2 and 4 are sons; whereas respondent no.

3 is daughter of Testator. It is alleged in the petition that the

Testator died on 25th April, 2007 at Delhi after a brief illness.

Before his death, Testator executed a Will dated 15th March, 2007,

whereby he bequeathed all his immovable and movable

properties/assets in favour of petitioner no. 1 during her lifetime.

After her death the immovable property was to devolve on all the

legal heirs i.e. petitioner no. 2 and respondent nos. 2 to 4, in the

ratio as detailed in the Will. Details of the properties have been

mentioned in Annexure D.

4. Respondents have been duly served. Respondent nos. 2 to 4

have filed affidavits stating therein that they have no objection in

case probate of the Will is granted to the petitioners.

5. Citation has been published in two newspapers i.e. "The

Times of India" (English edition) and "Navbharat Times" (Hindi

edition) both dated 3rd February, 2010. However, no one has filed

any objection opposing the grant of probate to the petitioners

pursuant to the said publication.

6. Valuation report in respect of Gurgaon property has been

received from SDM, Gurgaon. However, valuation report in

respect of Delhi property has yet not been received from the

concerned authorities.

7. Petitioners have led evidence. Petitioner no. 2 has examined

himself as PW1. He has filed his affidavit in evidence wherein he

has corroborated the averments made in the petition. He has

deposed that he is well conversant with the facts of the case. He is

son of Late Shri Dev Raj Sokhal. Testator was residing at S-325,

Ground Floor, G.K. II, New Delhi - 110048 before his death.

Testator died on 25th April, 2007 after a brief illness at Delhi.

Death certificate of the Testator has been proved by him as PW1/1.

He has further deposed that he is one of the beneficiaries under the

Will executed by the Testator. The Will Ex.PW1/2 was executed at

Delhi and was the last Will of the Testator. Vide the Will dated 15th

March, 2007 Testator had bequeathed all his immovable and

movable properties/assets in favour of the petitioner no. 1 during

her lifetime and after her death the immovable property is to be

divided in the ratio as described in the Will amongst all the legal

heirs, that is, petitioner no.2 and respondent nos. 2 to 4. He being

one of the beneficiaries was competent to file the present petition.

Testator had left behind five legal heirs being the petitioners and

respondent nos. 2 to 4 and there was no other Class-I heir of the

testator. Schedule of the properties, in respect whereof probate has

been sought, has been marked as PW1/4 in his affidavit. He has

further deposed that there was no impediment for grant of

probate/letter of administration of Will dated 15th March, 2007 in

favour of the petitioners.

8. One of the attesting witness to the Will namely, Mr. Bharat

Prasad Singh, has been examined as PW2. He has deposed in his

affidavit that Testator was known to him for the last twenty five

years. He was his neighbour. Late Shri Dev Raj Sokhal executed

the Will dated 15th March, 2007 in his presence and in presence of

Mr. Arun Kumar Singh. All of them were present at the time of

execution of the Will and they had signed the Will in presence of

each other. Late Shri Dev Raj Sokhal was physically and mentally

fit at the time of execution of the Will.

9. From the statements of the witnesses more particularly, PW2,

in my view, petitioners have succeeded in proving that Late Shri

Dev Raj Sokhal had executed the Will dated 15th March, 2007

(Ex.PW1/2) in sound disposing mind and same is the last Will and

Testament of the Testator.

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

petitioners that „Executor‟ had been appointed by the testator. If

that is so, then probate in respect of the Will Ex. PW1/2 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, petitioners have propounded the Will and have proved

the same, thus, „Letters of Administration‟ has to be granted to

them.

11. For the foregoing reasons, Letters of Administration with a

copy of Will annexed is granted to the petitioners in respect of Will

dated 15th March, 2007 of Late Shri Dev Raj Sokhal, subject to their

paying requisite Court Fee, valuation of Delhi properties and

furnishing the 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 14, 2012 ga