Delhi High Court
Shri Pradeep Ahuja vs The State & Others on 17 August, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TEST.CAS. 78/2016
SHRI PRADEEP AHUJA ..... Petitioner
Through Mr. Dinesh Garg with Ms. Rachna
Agrawal, Advocates
versus
THE STATE & OTHERS ..... Respondents
Through Ms. Vasundha Trivedi, Advocate for
R-2 to 7 and 9.
Mr. Sanjiv Batra, Attorney of R-2.
% Date of Decision : 17th August, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J (Oral):
1. Present petition has been filed by the petitioner under Section 278 of
the Indian Succession Act for grant of letter of Administration in respect of
Will dated 29th December, 1989 of the deceased Shri Indra Sen Ahuja.
2. It has been averred in the petition that the petitioner is the son of the
deceased Shri Indra Sen Ahuja, who expired on 14th March, 2014. The
deceased is stated to have executed a registered Will dated 29th December,
1989, which was duly attested by Shri Mahendra Pratap and Shri Jitender
Ahuja, both Advocates.
3. Notice was issued on the present petition on 20th September, 2016.
Citation was also directed to be issued, which came to be published in the
English edition of the daily newspaper "The Statesman" and Hindi edition of
daily newspaper „Dainik Jagran‟. No objections have been received to the
Will after publication of the citation.
4. Notices were duly served on the State and the other respondents.
5. Respondent no. 8 did not file any objection in spite of service by
publication. Consequently, respondent no. 8 is proceeded ex-parte.
6. The Pedigree of the family in question is as under:-
PEDIGREE
Smt. Vidya Ahuja (wife)
(died on 02.06.2002)
Shri Indra Sen Ahuja (husband)
(died on 12.07.2013)
Ravinder Sen Ahuja (S-1) Pradeep Pushpa Anuradha Myer (D-2)
(died on 14.03.2014 Ahuja (S-2) Luthra (D-1) (died on 07.09.1999)
P R-2
Renu Sheena Moyna Karan Krishan Kanika Anjali
Ahuja Ahuja Ahuja Ahuja Myer (Myer) (Myer
(W) (D) (D) (S) Bharat
(H) (D) (D)
R-3 R-4 R-5 R-6 R-7 R-8 R-9
7. Shri Indra Sen Ahuja had bought property No. W-20, Greater Kailash
Part-I, New Delhi-110048, measuring 500 sq. yds. in the name of his wife
Smt. Vidya Ahuja.
8. On 29th December, 1989, they both executed the reciprocal Will and
got the same registered before the Sub-Registrar concerned.
9. Exhibit P/2 is the Will of Shri Indra Sen Ahuja. Exhibit P/1 is the
Will of Smt. Vidya Ahuja. Both the Wills are registered documents.
10. Exhibits P/3, P/4 and P/5 are the death certificate of Smt. Vidya
Ahuja, Shri Indra Sen Ahuja and Shri Ravinder Sen Ahuja (deceased son)
the predecessor-in-interest of respondent Nos. 3 to 6.
11. Both the Wills were attested by the two attesting witnesses namely
Shri Mahendra Pratap and Shri Jitender Ahuja, both Advocates. Both the
attesting witnesses have since died.
12. In Jagdish Prasad Vs. State, 2015 SCC OnLine Del 14461, the
Division Bench of this Court has held that where both attesting witnesses
have died, evidence has to be led to prove that the signatures on the Will are
that of the executant with further proof that there is attestation in his
handwriting by one attesting witness. The relevant portion of the said
judgment is as under:-
"12. The legislature was conscious of the fact that a situation
may arise where both attesting witnesses have taken the train
to the heaven before the testator died or before the beneficiary
propounds the Will. The consciousness of the legislature can
be found in section 69 of the Indian Evidence Act, 1872,
which reads as under:
"69. Proof where no attesting witness found.-- If no such
attesting witness can be found, or if the document
purports to have been executed in the United Kingdom, it
must be proved that the attestation of one attesting
witness at least is in his handwriting, and that the
signature of the person executing the document is in the
handwriting of that person."
13. Section 69 of the Indian Evidence Act. 1872, while dealing
with a situation where no attesting witness can be found,
requires evidence to be led that the signatures on a document
which law requires to be attested by one or more witnesses
are that of the executant with further proof that there is
attestation in his handwriting by one attesting witness.
14. Law does not envisage that if both attesting witnesses to a
Will have died or for some reason are not available, that
would be the end of the Will. The way forward has been
guided by the legislature under section 69 of the Indian
Evidence Act, 1872.
15. In the decision as Babu Singh v. Ram Sahay @ Ram
Singh [(2008) 14 SCC 754.] , after noting section 69 of the
Indian Evidence Act, 1872, in paragraphs 17 and 18, the
Supreme Court observed as under:
"17. It would apply, inter alia, in a case where the
attesting witness is either dead or out of the jurisdiction
of the Court or kept out of the way by the adverse party
or cannot be traced despite diligent search. Only in that
event, the Will may be proved in the manner indicated in
section 69 i.e., by examining witnesses who were able to
prove the handwriting of the testator or executants.
18. Whereas, however, a Will ordinarily must be proved
keeping in view the provisions of section 63 of the
Succession Act and section 68 of the Act, in the event the
ingredients thereof, as noticed hereinbefore, are brought
on record, strict proof of execution and attestation stands
relaxed. However, signature and handwriting, as
contemplated in section 69, must be proved."
13. Exhibit PW 1/A is the affidavit in evidence of the petitioner, who is
also one of the beneficiaries under the Will, who has proved both the Wills
as well as the Death Certificates Exhibits P/3, P/4 and P/5. He also
identified the signatures of his father and mother and deposed that both the
attesting witnesses are dead. He deposed that his father and mother
possessed sound disposing mind at the time of execution of the Will. The
relevant portion of the petitioner's evidence by way of affidavit is
reproduced hereinbelow:-
"4). That my father Shri Indra Sen Ahuja had executed his last
Will and Testament dated 29.12.1989. I had seen him signing
and writing and I identify his signatures on the said Will dated
29.12.1989. The said Will was executed in my presence by Shri
Indra Sen Ahuja and the same was also attested in my presence
by the two attesting witnesses namely Shri Mahender Pratap,
Advocate and Shri Jitender Arya, Advocate. I identify their
signatures as well on the said Will. Both the said attesting
witnesses are since dead. My father possessed sound disposing
mind at the time of execution of the said Will. My father had
acknowledged the Will dated 29.12.1989, copy of which is
placed on record with the petition, to be his last Will and
Testament in my presence. Copy of the last Will and Testament
dated 29.12.1989 of my father Shri Indra Sen Ahuja is
EXHIBIT-P/2."
14. The petitioner (one son) and respondent nos. 3 to 6 (legal heirs of
deceased son) are the beneficiaries under the Will.
15. Respondent no. 2 is the daughter and also the Executor of the Will
who has filed her affidavit giving No Objection to grant of Letter of
Administration/Probate to the petitioner. She has stated that since she had
already administered the property in terms of the Will by handing over the
same to the petitioner and respondent nos. 3 to 6, she was not willing to file
a petition for grant of Letter of Administration. She has affirmed the
execution and registration of the Will.
16. Learned counsel for respondent nos. 2 to 7 and 9 states that the said
respondents have no objection if the petition is allowed in favour of the
petitioner.
17. Shri Indra Sen Ahuja did not leave behind any other legal heirs.
18. Consequently, there is no legal impediment to grant Letter of
Administration to the petitioner. Accordingly, the Letter of Administration
is granted with the copy of the Will dated 29 th December, 1989 signed and
executed by Late Shri Indra Sen Ahuja annexed therewith to administer the
property No. W-20, Greater Kailash Part-I, New Delhi in terms of the said
Will.
MANMOHAN, J
AUGUST 17, 2017
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