Delhi High Court
Manu Raj Bhalla vs Smt. Renu Dhawan & Ors. on 31 January, 2013
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 31st January, 2013
+ TEST.CAS.73/2008
MANU RAJ BHALLA ..... Petitioner
Through: Mr. Arvind Kumar Singh, Adv.
Versus
SMT. RENU DHAWAN & ORS. ..... Respondents
Through: None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. This petition, under Section 276 of the Indian Succession Act, 1925
seeks probate of the Will dated 06.09.2006 of Shri Narinder Mohan, son of
Late Shri Yadeo Nath Parti, resident of 6C, Dimple Court, 26 Shakespeare
Sarani, Kolkata-110 017.
2. The petition states, that the deceased was a unmarried Hindu and died
at Delhi on 04.10.2006; that the deceased was residing at Kolkata with the
father of the petitioner and used to visit Delhi from time to time where he
used to reside with the petitioner in Sainik Farms, New Delhi; that the
petitioner is the nephew of the deceased and the only beneficiary of the Will
aforesaid executed by the deceased at Kolkata; that the deceased had also
appointed the petitioner as his nominee in some of his bank accounts. The
Estate of the deceased, as per Schedules to the petition, compromises of a
plot situated at village Anangpur, Tehsil Ballabhgarh, District Faridabad,
Haryana and monies in the accounts of the deceased with the banks at Delhi
and Kolkata and units in Mutual Funds subscribed by the deceased.
3. The petitioner in the list of close relatives of the deceased to whom
notice of petition is required to be sent, gave the name only of his sister Smt.
Renu Dhawan.
4. Notice of the petition was ordered to be issued to the close relatives
and citation ordered to be published in the newspapers. Notice was also
issued to the Chief Controlling Revenue Authority to submit the valuation of
the immovable property of the deceased.
5. The sister of the petitioner has filed her 'No Objection'.
6. The DRO-cum-Collector, Faridabad filed an affidavit dated
24.08.2009 to the effect that there was no property / plot in the name of the
deceased in the revenue records of village Anangpur, Tehsil Faridabad. On
further report being sought, Collector Faridabad, vide communication dated
26.05.2011 informed that land ad-measuring 16 Biswas 10 Biswansi in
village Anangpur is in the name of the petitioner Manu Raj Bhalla (and not
in the name of the deceased).
7. Vide order dated 16.09.2011, the petitioner was directed to examine at
least one of the two witnesses to the Will. The petitioner however instead of
examining or summoning the said witnesses, filed I.A. No.19323/2011
stating that he had made efforts to contact the witnesses by sending letters to
them but both the letters were returned back unserved and that since no
attesting witness could be found, seeking permission to prove the Will by
calling an independent witness from Standard Chartered Bank or the Bank of
Tokyo-Mitsubishi UJF Ltd., being the bankers of the deceased along with
specimen signature of the deceased executor as per Section 69 of The Indian
Evidence Act, 1872. The said application was allowed. Mr. Prabhas
Kumar, Operational Officer, Standard Chartered Bank, Express Tower, New
Delhi has been examined as PW2 and has produced the original Specimen
Signature Card bearing the signature of deceased Mr. Narinder Mohan and
on attested copy whereof Ex.PW2/2 has been put.
8. The counsel for the petitioner on 16.05.2012 made a statement closing
the evidence of the petitioner. When the matter came up for consideration
on 09.07.2012, it was found that the petitioner had not placed on record the
original Will. Permission was also granted to the petitioner to lead
secondary evidence to prove the Will. The petitioner however again did not
take any steps and the counsel on 11.12.2012 made a statement that the
petitioner is not to examine anybody in terms of directions dated 09.07.2012.
However, in a sealed envelope, original Will has been filed and which has
been perused.
9. The aforesaid narrative would show that the petitioner has not made
any efforts whatsoever to prove the Will, so much so that the petitioner has
not examined himself also. The petitioner himself even has not bothered to
state on oath that the original Will is signed by the deceased. Merely
proving the specimen signature of the deceased given to the bank does not
amount to proof of the Will. Section 69 of The Indian Evidence Act, to
which reference was made in the application aforesaid also requires proving
that the attestation of one attesting witness at least is in his handwriting and
that the signature of the person executing the document is in the handwriting
of that person, where no attesting witness can be found. It was for the
petitioner to appear himself as his witness and to prove the efforts made by
him for locating the attesting witnesses. Mere statement to the said effect in
an application is not sufficient. The petitioner has thus totally failed to
prove the Will.
10. Not only so, it is worth mentioning that the purpose of requiring a
petitioner to submit a list of close relatives of the deceased is to enable such
close relatives to, if so desire, contest the probate sought of the Will. The
close relatives whose disclosure is thus to be made, ought to be such who in
the absence of the Will would inherit the Estate. Even if the submission of
the petitioner in the petition that the deceased was unmarried is to be
believed, his natural heirs as per the Hindu Succession Act, 1956 would be
his brothers and sisters. The petitioner has not stated whether there were any
living brothers and sisters of the deceased and has not given their particulars.
Similarly, even if the deceased were to have no living brothers and sisters,
particulars of their children ought to have been given. This Court is
constrained to observe that the petition has been conducted in a most
lackadaisical manner and there is thus no option but to dismiss the same.
The petition is accordingly dismissed.
11. Though considerable time of the Court has been consumed but I
refrain from imposing any costs on the petitioner.
RAJIV SAHAI ENDLAW, J
JANUARY 31, 2013
'gsr'..
