Subhash Chandra Banerji vs State Of Nct Of Delhi & Ors
2017 Latest Caselaw 4414 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                         Reserved on: 27th July, 2017
                                       Pronounced on: 24th August, 2017

+    TEST.CAS. 100/2014

     SUBHASH CHANDRA BANERJI                   ..... Petitioner
                 Through : Mr.Debasish Moitra, Advocate

                            versus

     STATE OF NCT OF DELHI & ORS              ..... Respondents
                   Through : Mr.Rakesh Makrandi, Advocate
                             for respondent Nos.2 to 5.

     CORAM:
     HON'BLE MR. JUSTICE YOGESH KHANNA

     YOGESH KHANNA, J.

1. This is a petition under Section 276 of the Indian Succession Act, 1925 for grant of probate.

2. The petitioner is the nephew of deceased Akshay Kumar Banerji who died on 06.12.2007 at New Delhi and that the wife of Shri Akshay Kumar Banerji had pre-deceased him on 07.08.2002 Both of the deceased do not have any issue from their wedlock. The death certificates of the deceased and his wife are filed along with the petition. The deceased expired at Plot No.9, Block N, Kailash Colony, New Delhi-110048 and was residing at the said address at the time of his death.

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3. The deceased left behind a registered Will dated 19.11.2007 wherein the petitioner claims to be the sole beneficiary and seeks probate of the Will dated 19.11.2007 by way of this petition. It is also alleged that petitioner being the nephew of the deceased had taken care of him after the death of wife of the deceased since the year 2002. The petitioner says that the Will dated 19.11.2007 of the deceased is genuine and is executed by the testator in the presence of two attesting witnesses namely Vivek Gupta and Shri Dinesh Ajmera. The Will was duly registered in the office of Sub- Registrar- V, New Delhi vide document registration No.6080 in additional book No.3, Vol. No.1593 at pages No.147-150 on dated 19.11.2007 in the presence of two attesting witnesses and it is the last Will and only testament of the deceased.

4. On the basis of the Will dated 19.11.2007, the property has been mutated in favour of the petitioner. Besides the plot No.9, Block No.N, Kailash Colony, New Delhi - 110048 admeasuring 500 square yards along with built up house over the said plot on the ground and first floor, the deceased had also left with him cash balance of `23,504.96 in saving bank account in Union Bank of India at Kailash Colony Branch, New Delhi and also cash amount of `1,50,626.62 in another saving bank account in the same branch. It is alleged that there is no impediment of any kind for grant of probate of the Will.

5. The family chart of deceased filed along with an affidavit dated 26.08.2016 of the petitioner is Annexure A. The chart shows Test Case No.100/2014 2 of 8 that one late P.C. Banerji had three sons and a daughter. His daughter late Smt.Ghuni died leaving behind two sons namely Shambhu, since expired and her second son namely Bishu whose whereabouts are not known. The testator late Akshay Kumar Banerji is also the son of late Shri P.C. Banerji and he died without any issue. Another son of late Shri P. C. Banerji namely Sukumar Banerji died unmarried and yet another son of late P.C. Banerji whose name was Late A.P. Banerjee married twice. He and his both wives have since expired and the petitioner is the son of late A.P. Banerji from his first wife. From the second wife late A.P. Banerji had three sons and three daughters, out of whom two daughters had since expired and remaining three sons and one daughter have given their no objections to the petition for grant of probate in favour of the petitioner herein.

6. The petitioner entered the witness box and examined himself as PW1 on 20.04.2015 wherein he deposed as under:-

"I tender my affidavit which is at Ex.PW1/A and bears my signatures at points A and B on last page. The contents of my affidavit are true and correct. I rely on documents Ex.PW1/1 to Ex.PW1/4. I also rely on Ex.PW1/5 i.e. a statement of the attesting witness, namely Mr.Vivek Gupta (inadvertently not mentioned in the affidavit.) Ex.PW1/2 and PW1/3 and OSR."

7. Ex.PW1/1 (collectively) are the death certificates of late Akshay Kumar Banerji and his wife Smt.Neelima Banerji; Ex.PW1/2 is the registered Will dated 19. 11.2007 giving details of his property and the petitioner has a life interest in the properties Test Case No.100/2014 3 of 8 left by the deceased and that after his death the estate shall devolve upon his two sons, namely, Shri Neelabh Banerji and Shri Trishit Banerjee in equal shares, who then shall become absolute owners of the aforesaid properties. The petitioner under the will could enjoy the property and even sell and dispose it of with the consent of both his sons by executing all necessary documents; Ex.PW1/3 is the copy of electricity bill in the name of petitioner (Original thereof was shown and returned) in respect of the property in question; Ex.PW1/4 is the valuation report of the subject immovable property; the petitioner has also relied upon the declaration Ex.PW1/5 of the attesting witness wherein Mr.Vivek Gupta had stated that he was present and saw the testator affixing his thumb/finger impressions and mark to the Will dated 19.11.2007 and admitted the said Will to be the last Will/Testament to be executed in his presence before the Sub- Registrar - V, Mehrauli, New Delhi.

8. As the execution and registration of the Will is not in dispute, there would, even otherwise, be no necessity for examining the attesting witness(es), per Kamla Nijhawan vs. Sushil Kumar Nijhawan & Ors 215 (2014) DLT 386, where a Coordinate Bench has held as under:-

"16. Execution of the Will dated 22.08.1995 has not been disputed by the Defendants rather they have very much relied on the same. The Defendants do not say that the Will dated 22.08.1995 is required to be proved. There are

Test Case No.100/2014 4 of 8 several properties in respect of which bequest has been made in the instant Will. The property concerned in the instant suit is ground floor of property no. 13/27, West Patel Nagar, New Delhi-110008.

17. In Thayyullathil Kunhikannan & Ors. v. Thayyullathil Kalliani & Ors., AIR 1990 Kerala 226, a Division Bench of the Kerala High Court held that Section 58 of the Indian Evidence Act, 1872 has to be read as overriding Section 68 and as obviating the necessity for calling an attesting witness, unless the execution of the Will or the attestation is in dispute. In para 34, this is what the Division Bench had to say about no requirement of proof of the Will where its execution and the capacity of the testator to execute the Will is admitted:-

"36. Order 8 Rule 5 of the C.P.C. provides that unless there is a specific denial of any allegation of fact made in the plaint, it shall be taken to be admitted. Section 58 of the Evidence Act provides that no fact need be proved in any proceedings, which by any rule of pleadings in force at the time, the parties are deemed to have admitted by their pleadings. In this case, in the absence of any denial in the written statement, the genuineness and the validity of the will, Ext.A1 must be deemed to have been admitted by the law of pleadings, namely Order 8 Rule 5, and therefore that fact was not required to be proved at the trial.

Section 68 states that if a document is Test Case No.100/2014 5 of 8 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. The proviso to the section which, was introduced by the amending Act 31 of 1926 makes an exception in the case of any document, not being a will, which has been registered, unless its execution by the persons by whom it purports to have been executed, is specifically denied. The fact that the proviso is not applicable to wills, and that it does not make an exception in the case of registered wills, does not lead to any inference that a will cannot be acted upon or used as evidence, unless it has been proved by an attesting witness. The only effect of the proviso is that registration of the will by itself does not obviate the necessity of calling an attesting witness to prove it, if it is otherwise required to be proved. The proviso does not speak of a case where a will is not in dispute. Section 68 relates to those documents which require to be proved at the trial of a suit. If by any rule of law or of pleadings, such proof is not required, section 68 cannot operate to insist on formal proof by calling an attesting witness. Section 58 has to be read as overriding section 68 and as obviating the necessity for calling an attesting witness, unless the execution of the will or the attestation is in dispute. In the absence of any such plea in the written

Test Case No.100/2014 6 of 8 statement, it will be the height of technicality and waste of judicial time to insist on examination of an attesting witness, before a will could be used as evidence. Phipson on Evidence 12th Edition (1976) explains the rationale behind examining an attesting witness as that he is the witness appointed or agreed upon by the parties to speak to the circumstances of its execution, "an agreement which, may be waived for the purposes of dispensing with proof at the trial." (Paragraph 1751) In paragraph 1757, the learned author points out that proof of execution of documents required by law to be attested is dispensed with although the attesting witness may be alive and in court) "when the execution has been admitted for purposes of trial." Order 8 Rule 5 C.P.C. deems the execution of the will to be admitted in the absence of any denial thereof in the written statement. Examination of an attesting witness is therefore unnecessary when the parties have not joined issue on the validity or genuineness of the will."

18. I do subscribe to the view taken by the Division Bench of the Kerala High Court that when the execution of the Will and capacity of the testator to execute the Will had not been disputed, the Will can be taken to be proved, particularly in a civil suit."

9. In the circumstances, the petitioner has not only proved that he has life interest in the Will dated 19.11.2007 executed by the

Test Case No.100/2014 7 of 8 deceased to the exclusion of all other legal heirs of deceased, and in any case, the other heirs have given their no objections.

10. Consequently, in view of Kamla Nijhawan (supra), I feel there is no impediment to the grant of letter of administration of estate of late Akshay Kumar Banerji with Will dated 19.11.2007 annexed for the benefit of the ultimate beneficiary i.e. his both sons namely Shri Neelabh Banerji and Shri Trishit Banerjee.

11. Registry to issue the letter of administration with Will dated 19.11.2007 annexed, subject to valuation to be obtained by this Court from the SDM and other agencies, if necessary and on paying the requisite stamp duty etc and also upon their furnishing administration bond and surety bond.

12. In view of above, the petition stands disposed of.

                                           YOGESH KHANNA, J
AUGUST 24, 2017
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