Rahul Tyagi And Anr. vs State
2014 Latest Caselaw 1888 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 365/2012

%                                                    15th April, 2014

RAHUL TYAGI AND ANR.                                ......Appellants
                 Through:                Mr. Kapil Dua, Advocate


                          VERSUS

STATE                                          ...... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This first appeal under Section 299 of the Indian Succession Act,

1925 is filed against the judgment of the probate court below dated 1.6.2012

by which the petition filed by the appellants herein for letters of

administration in respect of the properties of their mother was dismissed.

The subject properties are bearing nos.E-287, (Ground Floor & Basement),

East of Kailash, New Delhi and 10-C, 2nd Floor, B-Block, SFS Flats, East of

Kailash, New Delhi.

2. Appellants/petitioners states that Smt. Bela Tyagi, their mother, died

on 9.12.2009 leaving behind two petitioners/appellants who are her son and

daughter. It was further the case of the appellants/petitioners that besides the

two of them, there were no other legal heirs of the deceased Smt. Bela Tyagi

alive on the date of death of Smt. Bela Tyagi. The appellants/petitioners had

a sister Ms. Leena Tyagi who had pre-deceased Smt. Bela Tyagi and who

had expired on 23.5.2005. Ms. Leena Tyagi was unmarried when she died,

and therefore, left no legal heir besides the appellants/petitioners.

3. The court below dismissed the probate petition seeking letters of

administration on the ground that the properties with respect to which letters

of administration were sought originally belonged to the daughter Ms. Leena

Tyagi and who had bequeathed the properties in favour of mother Smt. Bela

Tyagi by a Will dated 30.4.2005, but, that Will dated 30.4.2005 of Ms.

Leena Tyagi was not proved by the appellants/petitioners in accordance with

law. The probate court below accordingly held that since the Will dated

30.4.2005 of Ms. Leena Tyagi was not proved, hence the mother Smt. Bela

Tyagi could not be said to be the owner of the properties, and hence

appellants/petitioners were not entitled to the letter of administration.

4(i) In my opinion, the probate court has really gone on and off tangent for

dismissing the petition seeking letters of administration. Firstly, the

properties already stood in the name of the mother Smt. Bela Tyagi and

consequently the Will of Ms. Leena Tyagi dated 30.4.2005 had already been

acted upon and as a result the mother Smt. Bela Tyagi would be the

undoubted owner of the suit properties, and consequently the petition

seeking letters of administration could not be dismissed on the ground that

the mother Smt. Bela Tyagi was not the owner of the properties.

(ii) Further, it is also relevant to note that a probate court does not go into

the title of the properties, and therefore, the probate court below has again

committed an error in refusing to grant letters of administration on the

ground that mother Smt. Bela Tyagi was not the owner of the properties.

(iii) Finally and most importantly it is to be noted that both the petitioners

are only the legal heirs of the pre-deceased daughter Ms. Leena Tyagi and

even if we take that Ms. Leena Tyagi was the owner of the properties, the

petitioners being the brother and sister of Ms. Leena Tyagi, would be the

only surviving legal heirs of Ms. Leena Tyagi and hence were in any case

entitled to the probate petition.

5. In view of the above, impugned judgment of the probate court below

is therefore set aside. Appellants/petitioners will be granted letters of

administration subject to compliance of the usual formalities before the

probate court below. Parties are left to bear their own costs.

APRIL 15, 2014                                    VALMIKI J. MEHTA, J
godara