Delhi High Court
Rajinder Kumar vs State & Ors. on 31 May, 2012
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ Probate Case No.35/2006
% Order decided on : 31.05.2012
Rajinder Kumar ..... Petitioner
Through: Mr. Mayank Goel, Adv. with
versus
State & Ors. ..... Respondents
Through: Mr. Dhanesh Relan, Adv. with
Ms. Sweta, Adv. for R- 1 and
Mr.Praveen Chauhan, Adv. for R-3
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.(Oral)
1. This petition has been filed by the petitioner under
Sections 276 and of the Indian Succession Act, 1925 seeking grant of
probate of the entire estate of Late Shri Chander Pal (hereinafter
referred to as the deceased).
2. As per the averments made in the petition, the deceased
died on 13.01.2006 at his fixed place of abode at House No.G-13,
Arjun Nagar, Delhi-110051. A copy of the identity card issued by the
Election Commission of India on 28.02.1995 whereby the said
address of the deceased is mentioned. Copy of the death certificate of
the deceased,. During his lifetime the deceased had made a Will dated
28.04.2005 of his moveable and immoveable assets, which was his
last Will and testament, and the same was registered in accordance
with law.
Probate Case No.35/2006 Page 1 of 4
3. Further, it is stated in the petition that by way of the said
Will dated 28.04.2005 the deceased bequeathed all his moveable and
immoveable assets in favour of the petitioner herein including the
property being House No.G-13, Arjun Nagar, Delhi-110051 which
was the self acquired property of the deceased. The deceased upon his
death, left behind the following legal heirs:
(i) Smt. Vimla Devi-wife of the deceased (respondent No.2),
(ii) Shri rajinder Kumar-son (petitioner),
(iii) Shri Rakesh Kumar-son ( respondent No.3) and
(iv) Smt. Anjana Jain-daughter (respondent No.4).
4. It is further averred in the petition that the respondent No.2
to 4 were not given any right in the estate of the deceased as he was
harassed by the respondent Nos.2 to 4 herein. The deceased had made
several formal complaints to the concerned authorities in this regard.
He even issued a Notice dated 02.07.2004 in a National daily i.e.
Rashtriya Sahara whereby the general public was put to notice that the
deceased has severed all his relations with respondent Nos.2 to 4
herein.
5. The respondent Nos.2 to 4 filed their objections to the
present petition stating that the Will dated 28.04.2005 is a forged and
fabricated document, however, it appears from the order sheets that
they failed to lead any evidence in support of their defense. Vide
order dated 02.04.2008 this Court passed a status -quo order in
respect of the property being House No.G-13, Arjun Nagar, Delhi.
But, the respondent Nos.2 to 4 created third party interest in the said
property. Thus the petitioner filed CS (OS) No.515 of 2010 seeking
cancellation of the said transaction. Further, contempt proceedings
Probate Case No.35/2006 Page 2 of 4
were also initiated against the respondent Nos.2 to 4, which are also
pending this Court and the respondent Nos.2 to 4 have been served
through publication.
6. In the present case, the petitioner lead his evidence by way
of affidavit Ex. PW 1/A wherein he proved the following documents:
(i) Exhibit P-1/1- Copy of the identity card issued by the
Election Commission of India on 28.02.1995.
(ii) Exhibit P-1- Copy of the death certificate of the deceased.
(iii) Exhibit P-1/2- Copy of the said Will dated 28.04.2005.
(iv) Exhibit P-1/3- Copy of the receipt dated 16.10.1980 for a
sum of Rs.20,000/-.
(v) Exhibit P-1/4(Colly) & Exhibit P-1/5- Copies of the formal
complaints of the deceased against the respondents Nos.2 to
4 and the Public Notice dated 02.07.2004 respectively.
(vi) Exhibit P-1/6- Copy of the paper book of the suit for
declaration filed by respondent No.3 before the Court of the
Civil Judge, Karkardooma Courts, Delhi.
(vii) Exhibit P-1/7- & Exhibit P-1/8- Copies of the reply to the
Notice dated 23.12.2005 and the anticipatory bail order
dated 21.04.2005 respectively.
(viii) Exhibit P-1/9 (Colly)- Copies of the electricity bills in
respect of the property in question.
7. The Will dated 28.04.2005 is attested by the witness
namely Shri Garib Ram and Shri Ramesh Chand. Shri Garib Ram, who
is also PW-2 in this case, proved during his examination in chief that
the deceased appended his signatures in the office of the Sub-Registrar
Probate Case No.35/2006 Page 3 of 4
in his presence, out of his own free will. The testimony of the said
witness has not been converted by the respondents.
8. Citation of these proceedings have been effected in "The
Statesman" dated 30.09.2011. Valuation report in respect of property
being House No.G-13, Arjun Nagar, Delhi has also been received by
the Sub-Divisional Magistrate of the area.
9. I have heard the counsel for the parties, perused the
pleadings and the documents placed on record. From the order dated
15.10.2009, it is clear that despite various opportunities give by the
Court to cross-examine PW-1, Mr. Rajinder Kumar, the respondents
failed to do so and their right to cross-examine PW-1 was closed.
Therefore, the testimony of said PW-1 is taken as correct deposition.
10. In view of the above, the petition is allowed and probate is
granted to the petitioner in respect of the Will dated 28.04.2005 of the
deceased subject to the petitioner filing a surety bond and necessary
court fees.
11. The petition stands disposed of.
MANMOHAN SINGH, J.
MAY 31, 2012
