Delhi High Court
Simrit Singh vs State Of Delhi & Ors on 24 May, 2012
Author: A. K. Pathak
$~19
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TEST.CAS. 56/2010
Decided on 24th May, 2012
SIMRIT SINGH ..... Petitioner
Through :Mr. Mukul Dhawan, Adv. `
with petitioner in person
Versus
STATE OF DELHI & ORS ..... Respondents
Through :Ms. Priyam Mehta, Adv.
with respondent no. 3 in
person.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J. (ORAL)
1. Petitioner has filed this petition under Section 276 read with
Section 222 of the Indian Succession Act, 1925 (for short
hereinafter referred to as the "Act") for grant of probate of Will
dated 10th May, 2006 of Late Shri Gautam Singh (for short
hereinafter referred to as "Testator").
2. As per the petition, Late Shri Gautam Singh died on 19 th
June, 2010. At the time of his death testator was a permanent
resident of Delhi. He has left behind petitioner, Mr. H.B. Singh and
Ms. Jasvinder Kaur, as his legal heirs. Petitioner is mother of the
testator; whereas respondent No.2 Mr. H.B. Singh and respondent
No.3, Ms. Jasvinder Kaur are father and widow of testator. State
has been impleaded as respondent no. 1. Testator had solemnized
court marriage with the respondent no.3 on 11th February, 2003 at
New Delhi, in presence of the witnesses. At the time of her
marriage, respondent no.3 was a divorcee with six years old child.
After sometime, relations between the testator and his wife, that is,
respondent no.3, became sour and she walked out of the
matrimonial home sometime in the month of August, 2003.
Testator owned and possessed a Fixed Deposit Receipt (FDR) of
`43,00,000/- (Rupees Forty Three Lacs Only) issued by HDFC
Bank, South Extension, Part II Branch, New Delhi. Testator was
also maintaining a Saving Bank Account with the same bank,
wherein a sum of `1,08,308/- (Rupees One Lac Eight Thousand
Three Hundred and Eight Only) was lying deposited at the time of
death of testator. Details of the FDR and Saving Bank account have
been given in para 6 of the petition. It is alleged that Testator had
made a Will dated 10th May, 2006 declaring to be his last Will and
testament. Will dated 10th May, 2006 was made by the testator in
the presence of two attesting witnesses, namely, Brigadier (Retd.)
D.S. Khurana and Dr. Priti Sarin Dhawan. By virtue of this Will,
testator has bequeathed all his moveable assets to his mother, that
is, the petitioner.
3. After service of notice, respondent nos. 2 and 3 have
appeared in Court. Respondent no. 2 has not opposed the grant of
probate of Will dated 10th May, 2006 to petitioner. He has filed his
"No Objections". As regards respondent no. 3, initially she filed
„objections‟ on 13th January, 2011.
4. Issues were framed on 26th July, 2011. However,
subsequently matter was referred to the Delhi High Court Mediation
and Conciliation Centre, where petitioner and respondent no. 3 have
arrived at an amicable settlement which has been recorded in the
Settlement Agreement dated 28th April, 2012. In view of the
settlement, respondent no. 3 sought permission to withdraw her
„objections‟ by filing an application being IA No. 8761/2012 under
Section 151 Code of Civil procedure, 1908 (for short "CPC"). This
application has been allowed vide order dated 11th May, 2012 and
respondent no. 3 has been permitted to withdraw „objections‟,
inasmuch as, issues have been recalled.
5. Since only movable assets are involved in this case, no
"Valuation Certificate" is required from respondent no. 1.
6. Respondent no. 3 is present in Court today and she has re-
iterated that she has no objection, in case probate of the Will is
granted to the petitioner. It may also be noted that citation was also
published in the newspapers "The Statesman" English edition and
"Dainik Jagran" Hindi edition to inform the general public about
the Will and also inviting objections, if any, from them. No one has
filed any objection, to the grant of probate.
7. Petitioner has stepped in the witness box as PW1 and has
tendered her affidavit in evidence, which has been marked as mark
"C-1". She has corroborated the averments made in the petition,
which have been narrated, in brief, in the preceding paras
hereinabove. Death Certificate of the testator has been proved as
Ex. PW1/1. Medical records of the testator have been proved as Ex.
PW1/2 to Ex. PW1/5. Marriage Certificate of the testator and
respondent no. 3 has been proved as Ex. PW1/6. Will dated 10 th
May, 2006 has been proved as Ex. PW1/7. Copy of the original
FDR has been proved as Ex. PW1/8; the letter issued by HDFC
Bank stating therein that `1,08,308/- (Rupees One Lac Eight
Thousand Three Hundred Eight Only) is lying in the Saving Bank
account of the testator has been proved as Ex. PW1/9.
8. One of the attesting witnesses to the Will, namely, Brigadier
(Retd.) D.S. Khurana has also stepped in the witness box as PW2
and has tendered his affidavit which has been marked as mark "C-
2". He has categorically deposed that testator was a permanent
resident of house No. G-8, 1st Floor, South Extension Part - II, New
Delhi - 110049. Testator has executed a Will dated 10th May, 2006
voluntarily, without any influence or under any pressure from any
source or person, in a sound health and disposing mind, in his
presence and in the presence of the witness. This was the last Will
and testament of the testator. The Will dated 10th May, 2006 was
duly signed by the testator as well as the attesting witnesses, that is,
himself and Dr. Priti Sarin Dhawan in presence of each other.
Statements of both these witnesses have remained unchallenged,
inasmuch as, there is no opposition to the grant of probate.
9. No executor has been named in the Will by the testator.
Accordingly, in my view, probate of the Will cannot be granted.
Section 222 of the Act provides that probate can only be granted to
an executor appointed by the Will. However, Section 232 of the
Act provides that when deceased has executed 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 can be granted to him in respect 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.
10. From the evidence adduced by the petitioner, in my view, she
has succeeded in proving that the testator had executed the Will
Ex.PW1/7 and the same is his last Will and testament, accordingly,
I do not find any impediment in granting "Letters of
Administration" with the Will dated 10th May, 2006 annexed, to the
petition.
11. For the aforesaid reasons, "Letters of Administration" with
the Will dated 10th May, 2006 annexed is granted to the petitioner,
subject to however, her paying requisite Court Fee and furnishing
Administrative Bond with one surety, to the satisfaction of
Registrar General of this Court.
12. Petition is disposed of in the above terms.
A.K. PATHAK, J.
MAY 24, 2012
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