Ashok Dhar vs The State And Ors
2014 Latest Caselaw 701 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      TEST.CAS. 45/2013
                                    Decided on 5th February, 2014

       ASHOK DHAR                                ..... Petitioner

                         Through     Mr. Yash Mishra, Adv.

                         versus

       THE STATE AND ORS                         ..... Respondents

                         Through     :Mr. Gursharan Singh, Adv.
                                     for respondent no. 1
                                     Ms. Sonam Sharma, Adv. for
                                     respondent no. 2
                                     Ms. Chandni Goyal, Adv. for
                                     respondent nos. 3 to 8
                                      Respondent no. 10 in person

       CORAM:
       HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J. (ORAL)

1. Petitioner has filed this petition under Section 276 of the

Indian Succession Act, 1925 for grant of probate of the Will dated

14th August, 2001 of Late Shri Manmohan Dhar. Respondent no. 3

is sister and respondent nos. 4 to 8 are brothers of Late Shri

Manmohan Dhar.

2. It is alleged in the petition that deceased was a Hindu,

governed by the Hindu Succession Act, 1956. He was permanent

resident of C-56, Kailash Apartments, Lala Lajpat Rai Marg, New

Delhi. He died on 21st January, 2009 at Lilavati Hospital in

Mumbai. Deceased made and published his last Will and testament

while he was in command of his full senses and was possessed of

perfect disposing mind. Deceased appointed petitioner as one of the

„Executor‟ to perform all the formalities as contemplated in the

Will. The Will dated 14th August, 2001 was signed by the Testator

in presence of two witnesses, namely, Shri C.M. Nehru and Shri

S.K. Raina. Respondent no. 2 Shri Deepak Dhar was another

named Executor and was a permanent resident of Pune, thus, the

petition was being filed by the petitioner. Deceased did not have

any liability against any individual, association or company at the

time of his death. Respondent nos. 3 to 7 had relinquished their

rights, title and interest in the property bearing no. C-56, Kailash

Apartments, Lala Lajpat Rai Marg, New Delhi in favour of

respondent no. 8, as was contemplated in the Will. They had issued

„no objection certificate‟ to this effect. No other petition was filed

in any Court of law seeking probate of the Will dated 14 th August,

2001. Petitioner has prayed that probate of Will dated 14 th August,

2001 be granted in his favour.

3. Respondent nos. 3 to 8 appeared through their counsel and

made a statement that they had filed affidavits stating therein that

they had no objection for grant of probate to the petitioner. Citation

was also published on 3rd August, 2013 in the newspapers "The

Times of India" and "Navbharat Times". No public person filed

any objection against the grant of probate, pursuant to the

publication of the citation in the newspapers.

4. Petitioner has led evidence by affidavits. In his affidavit Ex.

PW1/A he has reiterated the averments made in the petition. He has

deposed that Late Shri Manmohan Dhar was a Hindu; he passed

away on 21st January, 2009 in Lilavati Hospital at Mumbai. Death

Certificate has been exhibited by him as Ex. PW1/1. He has further

deposed that deceased was permanent resident of C-56, Kailash

Apartments, Lala Lajpat Rai Marg, New Delhi. Respondent no. 3 is

sister and respondent nos. 4 to 8 are brothers of deceased. Late Shri

Manmohan Dhar executed a Will dated 14th August, 2001 while he

was in command of full senses and possessed perfect disposing

mind. This was last Will of the deceased. Will was executed by the

deceased in presence of two witnesses, namely, Shri C.M. Nehru,

resident of C-58, Kailash Apartments, Lala Lajpat Rai Marg, New

Delhi and Shri S.K. Raina, resident of 15/89, Vikram Vihar, Lajpat

Nagar 4, New Delhi. Original Will has been proved by him as Ex.

PW1/2. He has further deposed that he was named Executor in the

Will. Second Executor named in the Will was permanent resident

of Pune, therefore, he alone was carrying out the duties of execution

of the Will.

5. Respondent nos. 2 to 8 have filed their affidavits stating

therein that they have no objection for grant of probate of the Will.

Respondent no. 2, another executor of the Will, has also filed his

affidavit stating therein that he has no objection to the petition and

grant of probate.

6. Two attesting witnesses to the Will, namely, Shri C.M. Nehru

and Shri S.K. Raina have also filed their affidavits. They have fully

supported the version of PW1. They have deposed that deceased

was permanent resident of C-56, Kailash Apartments, Lala Lajpat

Rai Marg, New Delhi and before passing away, had made the Will

dated 14th August, 2001 Ex. PW1/2, while he was in command of

his full senses and possessed perfect disposing mind. Deceased

signed the Will dated 14th August, 2001 in their presence. Their

statements have remained unchallenged as they have not been

cross-examined, inasmuch as none of the legal heirs of Late Shri

Manmohan Dhar has objected to the grant of probate of the Will,

inasmuch as have filed their affidavits stating therein that they have

no objection if probate is granted to the petitioner.

7. From the evidence adduced by the petitioner, more

particularly, witnesses to the Will, in my view, petitioner has

succeeded in proving that Late Shri Manmohan Dhar had executed

his last Will dated 14th August, 2001, while he was in full disposing

mind.

8. Valuation report has been submitted by the Sub

Divisional Magistrate, Hauz Khas, which is on record. As

per this report, value of the property is Rs.1,36,00,560/-

(Rupees One Crore Thirty Six Lacs Five Hundred Sixty

Only).

9. In view of the statements of the witnesses and the documents

placed on record, I am satisfied that petitioner has succeeded in

proving that Testator had executed the Will dated 14th August, 2001

which is his last Will and testament. That apart, none of the

respondents have come forward to challenge the Will, inasmuch as,

they have given their no objection to the grant of probate. Above

all, Will has to be properly proved by producing, at least one of the

attesting witnesses, which petitioner has done. PW-1 has

categorically deposed that the Testator has executed and signed the

Will dated 14th August, 2001 in presence of the attesting witnesses.

Accordingly, I do not find any impediment in granting the probate

to petitioner in respect of the Will of testator.

10. For the aforesaid reasons, probate of the Will dated 14 th

August, 2001 executed by Late Shri Manmohan Dhar is granted to

the petitioner, subject to his paying requisite court fee and

furnishing administrative bond with one surety, to the satisfaction

of Registrar General of this Court.

11. Petition is disposed of in the above terms.

A.K. PATHAK, J.

FEBRUARY 5, 2014 rb