Delhi High Court
B Venkataraman vs The State Nct Of Delhi on 11 February, 2015
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 11.02.2015
+ FAO(OS) 71/2015
B VENKATARAMAN ... Appellant
versus
THE STATE NCT OF DELHI ... Respondent
Advocates who appeared in this case:
For the Appellant : Mr Ashok Gurnani
For the Respondent : Nemo
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
CM No. 2397/2015
The exemption is allowed subject to all just exceptions.
FAO(OS) 71/2015
1. The learned counsel for the appellant has drawn our attention to the
impugned order dated 19.12.2014 whereby the learned Single Judge has granted
Letters of Administration in favour of the appellant instead of granting probate.
The appellant has moved a petition under Section 276 of the Indian Succession
Act, 1925 for grant of probate of the Will dated 10.05.2011 executed by Late
Lakshi Balasubramanian (appellant's mother). The only reason for non-grant of
probate and for grant of the Letters of Administration in favour of the appellant
was indicated in paragraph 5 of the impugned order. The same reads as under:-
"As stated above, none from the general public has come
forward to oppose the petition. Rather both the other legal heirs of
the deceased Lakshi Balasubramanian have supported the petition.
However, as per the provision of Section 222 of the Indian
Succession Act, 1925, probate of the Will can be granted only to
the named executor of the Will. In the instant case, the petitioner is
only a beneficiary under the Will and nobody has been appointed as
the executor of the Will. Thus, though probate of the Will cannot
be granted to the petitioner, on the other hand, I do not find any
impediment in grant of Letters of Administration in respect of
Property No. B-84, Gulmohar Park, Journalists Colony, New Delhi
Ex. PW1/1 annexed to the Will to the petitioner."
2. On going through the above extract, it is evident that according to the
learned Single Judge the appellant was only a beneficiary under the Will and
"nobody had been appointed as the executor of the Will". This observation of
the learned Single Judge is contrary to the record. We have seen the copy of the
Will (Ex.PW1/1). In the said Will, it is specifically stated as under:-
"I hereby appoint my eldest son Shri B. Venkatraman as the Executor
under this Will."
3. It is obvious that the learned Single Judge has committed an error in
recording that there is no named executor in the Will.
4. The only reason for not granting the probate to the appellant was that he
was not named as an executor. In all other aspects, the learned Single Judge was
satisfied that it was a fit case for grant of probate. Since the learned Single Judge
has committed a factual error, which we have pointed out above, we set aside the
impugned judgment and allow the Testamentary Case No. 72/2013. Probate is
granted subject to the appellant's completing all the requisite formalities
including payment of stamp duty.
5. The appeal is allowed accordingly.
BADAR DURREZ AHMED, J
FEBRUARY 11, 2015 SANJEEV SACHDEVA, J
SU
