Delhi High Court
R.Venkatanarayanan vs Govt. Of N.C.T. on 2 December, 2015
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TEST.CAS. 48/2002, IA Nos. 16836/2010 & 23777/2015
Judgment decided on 2nd December, 2015
R.VENKATANARAYANAN ..... Petitioner
Through : Mr. Rajiv Bahl, Adv.
versus
GOVT. OF N.C.T. ..... Respondent
Through :Mr. Subash K. Pathak and Mr. Rohit
Agarwal, Advs. for respondent no. 2
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J.(ORAL)
1. One Shri R. Venkatanarayanan had filed this petition under Section
276 of the Indian Succession Act, 1925, for grant of probate of the Will
dated 31st January, 2002 of Late Dr. Pran Nath Behl (testator). Shri R.
Venkatanarayanan is the named executor in the Will. Subsequently, he filed
an application seeking permission to renounce the executorship of the Will.
Respondent no. 2 Shri Sushil Behl (son of testator) also filed an application
for his transposition as a petitioner. Both these applications were allowed
vide order dated 18th March, 2005. Shri R. Venkatanarayanan was permitted
TESTCAS-48-2002 Page 1 of 7
to renounce the executorship of the Will in question and Shri Sushil Behl
was transposed as petitioner with liberty to continue to proceed with the
petition.
2. Daughter of testator, namely, Smt. Vanita Sarin is the respondent no.
2; whereas respondent no. 1 is Government of N.C.T. of Delhi. Respondent
no. 2 Smt. Vanita Sarin has filed an application bearing IA No. 23777/2015
praying therein that petition be allowed and probate of last Will and
testament dated 31st January, 2002 executed by Late Dr. Pran Nath Behl
(testator) be granted. Respondent no. 2 has admitted the Will. She has also
identified the signatures of the testator. She has admitted the validity of the
Will, in view of the settlement arrived at between her and the petitioner vide
Memorandum of Understanding dated 21st October, 2015. However, the
fact remains that there is no opposition, to the grant of probate of the Will of
the testator in favour of the petitioner, by the respondent no. 2.
3. Citation was published in the newspapers "The Statesman" 3rd March,
2003 (Delhi edition) and "Aaj" (U.P. edition). Despite publication of
citations, no public person has come forward to file objections thereby
opposing the grant of probate of the Will.
TESTCAS-48-2002 Page 2 of 7
4. Valuation report dated 4th June, 2004 has been submitted by the Sub
Divisional Magistrate, Connaught Place, New Delhi, and is on record. As
per this report, value of the property is `82,71,000/- (Rupees Eighty Two
Lacs Seventy One Thousand Only).
5. Petitioner has stepped in the witness box as PW2 and has tendered his
affidavit Ex. PW2/A in his examination-in-chief. He has not been cross-
examined by the respondents though opportunity was granted to them to
cross- examine him. He has proved death certificate of Late Dr. Pran Nath
Behl as Ex. PW2/7. He has categorically deposed that he was adopted by
the testator after seeking permission from the learned District Judge, Delhi.
Certified copy of the order dated 16th May, 1979 of the learned District
Judge, Delhi has been proved as Ex. PW2/1. Copy of the Adoption Deed
dated 4th June, 1979 has been proved as Ex. PW2/2. Copy of the application
under Section 9(4) of the Hindu Adoption and Maintenance Act, 1956 dated
12th January, 1979 has been proved as Ex. PW2/3. Copy of the statement of
Mrs. Marjorie Behl (mother of the petitioner) has been exhibited as Ex.
PW2/4. Copy of the public notice dated 2nd April, 2002 has been exhibited
as Ex. PW2/5. Copy of the newspaper cutting of Indian Express has been
exhibited as Ex. PW2/6. PW2 has deposed that he is conversant with the
TESTCAS-48-2002 Page 3 of 7
writing and signatures of the testator. He has identified the signatures of
testator on the Will dated 31st January, 2002. He has also identified the
photograph of the testator as affixed on the Will.
6. Above all, one of the attesting witness to the Will Shri Gulshan
Nagpal has been examined as PW1. He has tendered his affidavit in his
examination-in-chief. His testimony has also remained unchallenged. He
has categorically deposed that Will dated 31st January, 2002 was executed
by Dr. Pran Nath Behl. He has identified the signatures of the testator at
points 'A', 'A1', 'B', 'C', 'D', 'E' and 'F'. He has also identified the
photograph of testator. He has categorically stated that Dr. Pran Nath Behl
has signed the Will in his presence and in the presence of Dr. Subhro
Bhattacharjee (other witness to the will). He has also identified his
signatures as well as that of Dr. Subhro Bhattacharjee at points 'G' and 'H'.
Will has been exhibited as Ex. PW1/1.
7. Section 63(c) of the Indian Succession Act, 1925 envisages that the
Will shall be attested by two or more witnesses, each of whom has seen the
testator sign or affix his mark to the Will or has seen some other person sign
the Will, in the presence and by the direction of the testator, or has received
from the testator a personal acknowledgement of his signature or mark, or
TESTCAS-48-2002 Page 4 of 7
the signature of such other person; and each of the witnesses shall sign the
Will in the presence of the testator, but it shall not be necessary that more
than one witness be present at the same time, and no particular form of
attestation shall be necessary.
8. Section 68 of the Indian Evidence Act, 1872 provides that if a
document is required by law to be attested, it shall not be used as evidence
until one attesting witness at least has been called for the purpose of proving
its execution, if there be an attesting witness alive, and subject to the process
of the Court and capable of giving evidence. Proviso to Section 68 further
provides that it shall not be necessary to call an attesting witness in proof of
the execution of any document, not being a Will, which has been registered
in accordance with the provisions of the Indian Registration Act, 1908,
unless its execution by the person by whom it purports to have been
executed is specifically denied. Meaning thereby, in case of the will, at least
one of the attesting witnesses, if alive, has to be necessarily examined to
prove the will.
9. In this case, statutory requirements of Section 63 of the Indian
Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 have
been duly established and proved. Will has been signed by the testator in
TESTCAS-48-2002 Page 5 of 7
the presence of two attesting witnesses. PW2 has categorically deposed that
testator has signed the Will in his presence, inasmuch as he had appended
his signature in the presence of the testator and the other witnesses.
According to him, Will was signed by the testator in the presence of both the
attesting witnesses. He has identified the signatures of the testator as well as
that of other witness. Needless to add that he has also identified his own
signatures on the Will. He has also deposed that testator was in sound
disposing mind. Accordingly, I do not find any legal impediment in granting
the Letters of Administration with a copy of the Will dated 31st January,
2002 annexed, to the petition.
10. Probate can be granted only to the Executor and if Executor
renounces, Letters of Administration is to be granted to one of the legatee.
Section 231 of the Indian Succession Act, 1925 provides that if an executor
renounces or fails to accept an executorship within the time limited for the
acceptance or refusal thereof, the Will may be proved and Letters of
Administration, with a copy of the Will annexed, may be granted to the
person who would be entitled to administration in case of intestacy. Section
232 of the Indian Succession Act, 1925 further provides that a universal or a
residuary legatee may be admitted to prove the Will, and Letters of
TESTCAS-48-2002 Page 6 of 7
Administration with the Will annexed may be granted to him of the whole
estate, or of so much thereof as may be unadministered if (a) the deceased
has made a Will, but has not appointed an executor, or (b) the 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 (c) the executor
dies after having proved the Will, but before he has administered all the
estate of the deceased,
11. For the foregoing reasons, petition is allowed and Letters of
Administration, with the Will dated 31st January, 2002 of Late Dr. Pran Nath
Behl annexed is granted to petitioner, subject to his paying requisite Court
Fee and furnishing Administrative Bond to the satisfaction of the Registrar
General.
12. Petition is disposed of in the above terms. Miscellaneous applications
are disposed of as infructuous.
A.K. PATHAK, J.
DECEMBER 02, 2015
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