Delhi High Court
Shri Vijay Dua vs State & Ors. on 15 October, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TEST. CAS. No. 23/2010
% 15th October, 2015
SHRI VIJAY DUA ..... Petitioner
Through: Mr. Amit Saxena, Mr. Anil Saxena
and Mr. Vaibhav Sharma, Advocates.
Versus
STATE & ORS. ..... Respondents
Through: Mr. Pradeep Gaur, Advocate for R-2
and 2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This probate petition has been filed by Sh. Vijay Dua son of
late Sh. Narsingh Dass Dua seeking probate of the Will dated 29.11.2004
executed by the father Sh. Narsingh Dass Dua. At the outset, I may note that
the petition though is titled as a petition seeking probate, really the petition
will be for letters of administration with the Will annexed, inasmuch as, in
the Will of Sh. Narsingh Dass Dua dated 29.11.2004 there is no executor
appointed and probate can only be granted to the executor in terms of
TEST. CAS. No. 23/2010 Page 1 of 5
Section 222 of the Indian Succession Act, 1925. This petition is therefore
treated as a petition for letters of administration with the Will annexed.
2. Respondents no.2 and 3 in this petition are the other son and the
daughter of late Sh. Narsingh Dass Dua. These respondents had filed their
written statements originally conceding to the probate petition. However,
these two respondents thereafter sought to back out, and wanting to amend
their written statements to dispute the Will, but such endeavour was
disallowed by dismissing an application for amendment of these
respondents, by the Order of a learned Single of this Court dated 25.5.2012.
Appeal filed by the respondents no.2 and 3 to the Order dated 25.5.2012 of a
learned Single Judge was dismissed by a Division Bench of this Court on
3.9.2012 in FAO(OS) No. 425/2012 and the SLP filed in the Supreme Court
was also dismissed.
3. Petitioner has appeared in the witness box as PW1 and evidence
has also been led by the petitioner of one attesting witness to the Will
namely Sh. Vikram Bali as PW2.
4. A reading of the affidavit by way of evidence filed on behalf of
the attesting witness Sh. Vikram Bali PW2 shows that the deceased Sh.
Narsingh Dass Dua had got the Will prepared in his presence and had signed
TEST. CAS. No. 23/2010 Page 2 of 5
the same after reading the same. Late Sh. Narsingh Dass Dua is stated to
have signed the Will in the presence of both the attesting witnesses and both
the attesting witnesses also signed in the presence of late Sh. Narsingh Dass
Dua. The Will was registered before the Sub-Registrar on the same date
when the attesting witnesses were present. The following portion of the
affidavit by way of evidence of the attesting witness Sh. Vikram Bali shows
that the Will has been proved and these paras read as under:-
"3. I also state that on 28th November, 2004, the deceased visited my
house and requested me to accompany him to the office of Sub
Registrar-IV, Seelampur, Delhi the next day, and on my query, he
informed that he wanted to execute a Will in respect of all his
assets/properties both movable and immovable. I assured the
deceased that he would be there in the office of Sub Registrar-IV,
Delhi, on 29.11.2004 sharp at 10 A.M. and accordingly on
29.11.2004, the deceased in my presence got prepared the Will
and after getting the same typed, read over the same and finding
the same strictly as per his desire and instructions, the deceased
signed and appended his thumb impression on both the pages of
the said Will in my presence as well as in presence of Mr. Ajay
Kumar, Advocate.
4. I also state that the deceased had executed and signed the said
Will in my presence as well as in presence of Shri Ajay Kumar,
Advocate, and thereafter I affixed my hands unto the said
document at the place mark A and subsequently Mr. Ajay Kumar
also affixed his seal and signature on the said document as
attesting witnesses.
5. I also state that the deceased, myself, and the other witness Mr.
Ajay Kumar, Advocate signed the said document in presence of
each other, present at the same date, place and time. I identify the
signatures of the deceased Shri Narsingh Dass Dua on the said
document.
TEST. CAS. No. 23/2010 Page 3 of 5
6. I also state that the said Will/Document dated 29.11.2004 was
presented for registration with the office of Sub Registrar, Delhi
and the deceased as well as myself and other witness appeared
before the Sub Registrar concerned on 29.11.2004 and the said
document was registered as document No.20110 in Addl. Book
No.3, Volume No. 2346 on pages 103 to 104 on 29.11.04."
5. In the cross-examination of this attesting witness nothing has
been elicited that the Will was not signed by late Sh. Narsingh Dass Dua or
that it was not signed by him in the presence of the witnesses or that the
witnesses did not sign in the presence of late Sh. Narsingh Dass Dua. This
witness had denied the suggestion that the deceased was not in a sound
mental health when he executed the Will.
6. Even in the cross-examination of the petitioner as PW1 nothing
has been elicited for setting aside of the Will and PW1 has specifically
denied the suggestions that the Will was not executed by late Sh. Narsingh
Dass Dua or the same was not signed by him in the presence of the witnesses
or that the witnesses did not sign in the presence of Sh. Narsingh Dass Dua.
7. In my opinion, in view of the above, petitioner is successful in
proving the Will dated 29.11.2004 of late Sh. Narsingh Dass Dua and which
is Ex.PW2/1. Petitioner is therefore granted letters of administration with
the Will dated 29.11.2004 annexed of late Sh. Narsingh Dass Dua.
TEST. CAS. No. 23/2010 Page 4 of 5
8. Since petitioner is the sole beneficiary under the Will, there will
be no requirement of petitioner having to give any administration bond or
surety bond. Petitioner will however have to pay the court fees necessary for
granting of letters of administration with the Will annexed.
9. This petition is allowed and disposed of accordingly, leaving
the parties to bear their own costs.
OCTOBER 15, 2015 VALMIKI J. MEHTA, J.
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