Delhi High Court
Shalini Vijh @ Shalu Chugh vs Sudhir Vijh on 2 May, 2016
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Test. Cas. No.15/2013 & CS(OS) No.2558/2012
% 2nd May, 2016
+ TEST. CAS. No.15/2013
SHRI SUDHIR VIJH ..... Petitioner
Through: Ms. Amrit Kaur Oberoi, Advocate.
versus
THE STATE & ANR. ..... Respondents
Through: Mr. N.S.Arora, Adv. for R-1.
+ CS(OS) No.2558/2012
SHALINI VIJH @ SHALU CHUGH ..... Plaintiff
Through:
versus
SUDHIR VIJH ..... Defendant
Through: Ms.Amrit Kumar Oberoi, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
TEST. CAS. No.15/2013
1. This testamentary case is filed by the petitioner/Sh. Sudhir Vijh for
probate/letters of administration with the Will annexed, of his father late Sh.
Atam Prakash Vijh. Sh. Atam Prakash Vijh died leaving behind his last Will
TEST. CAS. No.15/2013 & CS(OS) No.2558/2012 Page 1 of 5
dated 02.07.1997. Respondent no.2 in the probate petition is the sister of the
petitioner and the daughter of Sh. Atam Prakash Vijh.
2. Counsel for the petitioner makes an oral prayer, and which is
accepted, that, the testamentary case be not only decided as per the last Will of
Sh. Atam Prakash Vijh dated 02.07.1997 but also the earlier Will dated
03.06.1997.
3. The issue in the present case is whether the petitioner has been able
to successfully prove the due execution and attestation of the Wills dated
02.07.1997 and 03.06.1997 of late Sh. Atam Prakash Vijh.
4. I may note that it is only the petitioner who has led evidence in this
case. No evidence has been led on behalf of the objector/respondent no.2.
5. Petitioner has led evidence of one attesting witness namely Sh.
M.L. Sharma. Sh. M.L. Sharma has filed his affidavit by way of evidence dated
17.05.2014. Sh. M.L. Sharma has deposed with respect to the due execution and
attestation of the Wills dated 02.07.1997 and 03.06.1997. He has deposed that
the attesting witnesses signed the Will in the presence of the testator and the
testator signed in the presence of the attesting witnesses as regards both the
Wills. The attesting witness has also deposed that the testator was in sound
disposing mind at the time of executing both the Wills.
TEST. CAS. No.15/2013 & CS(OS) No.2558/2012 Page 2 of 5
6. Both the Wills were presented for registration before the Sub-
Registrar and this aspect of registration has been proved by summoning the
concerned person from the office of the Sub-Registrar on 03.06.2015. The Will
dated 03.06.1997 is registered on 03.06.1997 at Serial no.34699 in Additional
Book no.3, Volume no.3866 at Page no.100 and the Will dated 02.07.1997 has
been registered on 02.07.1997 at Serial no.41206, in Additional Book no.3,
Volume no.3900 at Page no.20.
7. In view of the above, the petitioner has succeeded in proving the
Wills, dated 02.07.1997 as Ex.PW1/2, and dated 03.06.1997 as Ex.PW1/1.
Though, there is some confusion in the language of the Will dated 02.07.1997,
but when this Will is read as a whole, more so on account of the fact that there
is also an earlier Will dated 03.06.1997 of late Sh. Atam Prakash Vijh, it is the
petitioner who is the sole beneficiary under the Wills Ex.PW1/1 and Ex. PW1/2
of late Sh. Atam Prakash Vijh.
8. Testamentary case is, therefore, allowed and the petitioner is
granted probate of the Wills dated 03.06.1997 Ex.PW1/1 and 02.07.1997
Ex.PW1/2 of late Sh. Atam Prakash Vijh. Since the petitioner is the sole
beneficiary under the Wills, petitioner is hence exempted from filing of the
Administration Bond and the Surety Bond. Probate will be granted to the
petitioner on the petitioner filing the court fee and on compliance of the other
administrative formalities as required.
TEST. CAS. No.15/2013 & CS(OS) No.2558/2012 Page 3 of 5
9. Parties are left to bear their own costs.
CS(OS) No.2558/2012
1. Sh. Sudhir Vijh/petitioner in Test. Cas. No.15/2013 is the
defendant in this suit, and the plaintiff in this suit Smt. Shalini Vijh (the sister of
Sh. Sudhir Vijh) is the respondent no.2 in the testamentary case.
2. The defence of the defendant Sh. Sudhir Vijh in the present suit
was that the father died leaving behind the Wills dated 03.06.1997 and
02.07.1997, and therefore, the plaintiff Smt. Shalini Vijh is not entitled to
partition of the suit property no.173C, DDA Flats, MIG, Second Floor, Block-
G8, Rajori Garden, New Delhi.
3. The present suit and the Test. Cas. No.15/2013 were consolidated
vide Order dated 30.07.2014.
4. Accordingly, since Sh. Sudhir Vijh has successfully proved the
Wills of late Sh. Atam Prakash Vijh dated 03.06.1997 and 02.07.1997 in the
Test. Cas. No.15/2013, the Wills are taken to be proved in this suit also
resulting in the defendant in the present suit Sh. Sudhir Vijh becoming the sole
owner of the suit property as the same has been bequeathed to him by his father
late Sh. Atam Prakash Vijh as per the Wills dated 03.06.1997 proved as
Ex.PW1/1 and 02.07.1997 as Ex.PW1/2 in Test. Cas. No.15/2013. The subject
suit for partition is therefore dismissed.
TEST. CAS. No.15/2013 & CS(OS) No.2558/2012 Page 4 of 5
5. Parties are left to bear their own costs.
MAY 02, 2016 VALMIKI J. MEHTA, J.
neelam
