N. Rajashekaran vs State & Others
2017 Latest Caselaw 3581 Del

$~21
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+      TEST.CAS. 10/2015
       N. RAJASHEKARAN                                  ..... Petitioner
                    Through:            Mr.Saumyen Das, Advocate.
                          versus
       STATE & OTHERS                                       ..... Respondents
                    Through:            None

%                                       Date of Decision: 25th July, 2017
       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN

                          JUDGMENT

MANMOHAN, J (Oral):

1. Present petition has been filed by the petitioner under Section 276 of the Indian Succession Act for grant of probate/letter of Administration in respect of Will dated 23rd October, 2002 of the deceased Mr.Sambasiva Narsimhan.

2. It has been averred in the petition that the petitioner is the son of the deceased Mr.Sambasiva Narsimhan, who expired on 14th December, 2009. The deceased is stated to have executed a registered Will dated 23rd October, 2002, which was duly attested by Mr. Ashok Tiwari and Mr. Lalit Kumar Malik. It has been further averred that the petitioner‟s mother Smt. Subbalakshmi expired on 07th September, 2014 at New Delhi. The Will dated 23rd October 2002 executed by the deceased is reproduced hereinbelow:-

"WILL

This will is made at New Delhi on this 23rd day of October 2002, by Mr. S. Narasimhan s/o Late Mr. K.N. Sambasivasastri r/o 3/3 Survpriya Vihar, New Delhi-110 016 aged about 82 years

Whereas I am the absolute owner and in possession of an immovable property being the entire plot of l and the building constructed thereon situated at 3/3 Survpriya Vihar, New Delhi-110 016.

And Whereas the said immovable property has been acquired and constructed by me with my own funds and resources.

And Whereas I also own various movable assets, the list of which is annexed hereto as Annexure I.

And Whereas I have to surviving children namely Mr. N. Rajashekaran and Smt. Gita Ram.

And Whereas I had two other children namely Mr. N. Sriram and Smt. N. Hema, who have pre-deceased me.

And Whereas out of my said pre-deceased children, Smt. N. Hema was unmarried and Mr. N. Sriram was married and is survived by his wife i.e. Mrs. Balasriram and two children namely S. Krishna and S. Arati.

And Whereas I hereby bequeath, all my movable and immovable properties including the said immovable property and the movable assets as listed at Annexure I in the following manner:

a) In case at the time of my death of my wife i.e. Smt. Subbalakshmi Narasimhan is alive then my said immovable property, other immovable properties that I may acquire in future and all my movable assets, existing as well as those that

may be acquired by me in future, shall devolve upon her and she can enjoy the same during her life time. Upon the death of my wife, the said immovable property and other immovable properties that I may acquire in future shall exclusively and absolutely devolve upon my son namely Mr. N. Rajashekaran and out of the movable assets, which devolved upon my wife after my demise, the first Rs.5,00,000/- (Rupees Five Lakhs Only) worth of movable assets shall devolve upon my son i.e. Mr. N. Rajashekaran.

b) In case my wife predeceases me then my said immovable property, other immovable properties that I may acquire in future and all my movable assets, existing as well as those that may be acquired by me in future, shall exclusively and absolutely devolve upon my son namely Mr. N. Rajashekaran except the first Rs.5,00,000/- (Rupees Five Lakhs Only) worth of movable assets which shall devolve exclusively upon my daughter i.e. Smt. Gita Ram and the remaining amount, if any, shall devolve upon my son i.e. Mr. N. Rajashekaran.

That my other legal heirs including heirs of my predeceased son i.e. Late Mr. N. Sriram shall have no connection, concern,, right, interest, title or claim of any nature in the said immovable property or any of my movable assets as listed at Annexure I hereof or any other immovable or movable property(ies) that I may presently own or that I may own, acquire or be entitled to in future.

I also hereby appoint my son Mr. N. Rajashekaran as the executor of my this will.

That the contents of this will have been read and understood by me and are correct.

I hereby declare that this to be my last and final will regarding all my assets including those that may be acquired by me in future and that this will has been made by me voluntarily and without any pressure and duress and that I am in my full and

complete senses and that this will supersedes all my previous wills, testaments, codicils and the like.

I, S. Narasimhan, have signed this will at the place and on the date, month and year mentioned hereinabove, in the presence of the following witnesses:

Sd/-

Mr. S. Narasimhan

We, the marginal witnesses have signed this will at the requires of the testator i.e. Mr. S. Narasimhan who has also signed the will in our presence, after understanding the contents of this will and each of us have signed this will in the presence of each other at the place and the day, month and year as first above written.

Witness:-

Sd/-

1. Alok Tiwari, S/o Sh. R.P. Tiwari R/o C-9, DDA Flats, Saket, DL No.P03092002333433"

3. Notice was issued on the present petition on 18th February, 2015. 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 „Jansatta‟. No objections have been received to the Will after publication of the citation. Notices were duly served on the State and the other respondents.

4. Respondent No.2, the sister of the petitioner, has filed a No Objection supported by an affidavit. The affidavit of respondent no.2 is reproduced hereinbelow:-

"I, Smt. Gita Ram W/o Sh.V.B.N Ram, D/o Late Sh.S.Narasimhan, R/o A-441, First Floor, Defence Colony,

New Delhi-110024 aged 64 years do hereby solemnly affirm and declare as under:-

1. That I am the applicant/respondent no.2 in the above said matter and being well conversant with the facts and circumstances of the case, and I am competent to swear the present affidavit.

2. That I have no objection if probate or Letter of Administration of last Will dated 23.10.2002 duly registered at Document No.7925, Additional Book No.III, Volume No.1057, Pages 43 to 46 dated 23.10.2002 of my deceased father Sh.Sambasiva Narasimhan alias S.Narasimhan is granted in favour of petitioner (i.e. Narasimhan Rajashekaran alias N.Rajashekaran) in respect of immovable property i.e. 3/3, Sarva Priya Vihar, New Delhi-110016.

3. That accompanying No Objection has been drafted by my counsel under my instructions and the content of which have been read and understood by me and that the same are true and correct to my knowledge.

4. That the contents of the said No Objection are not being repeated herein for the sake of brevity, however, the same may be read as part and parcel of this affidavit."

5. The other Class-1 heirs of the deceased namely, respondent no.3 - Smt. Balasaraswati Sriram, wife of the deceased son, respondent no.4 - Mr.Krishna S.Ram and respondent no.5 - Ms.Arati Sriram Ivani grandchildren of the deceased have despite service, neither filed any Objection nor any reply. Consequently, the learned Predecessor of this Court on 05th November, 2015 proceeded ex parte against the said respondents.

6. As regards the petitioner, he has adduced evidence by filing his own affidavit. The affidavit tendered by him in evidence is marked as Ex.PW1/1. It has been stated by the petitioner in his affidavit that the Testator was in a sound disposing mind at the time of signing the Will which was duly executed by him in the presence of the witnesses. It is further stated that the Testator expired on 14th December, 2009 at New Delhi leaving behind his last will and testament dated 23rd October, 2002. The petitioner has proved the Death Certificate of the Testator as Ex.PW1/C.

7. On 04th August, 2016, the evidence of Mr.Ashok Kumar Sharma, UDC from the office of Sub Registrar-V, Mehrauli was also recorded on S.A, which is reproduced hereinbelow:-

"I have brought the concerned registers containing the summoned records i.e. original conveyance deed dated 20.03.1996 duly registered as document no.1995, Additional Book No.1, Volume No.653, Pages 161 to 162 registered on 20.03.1996 executed by the President of India through DDA in favour of Sambasiva Narasimhan (copy of the same on record is already Ex.PW1/B) and Original Will dated 23.10.2002 duly registered at document no.7925, Additional Book No.III, Volume No.1057, Pages 43 to 46 dated 23.10.2002 by Sh. S.Narasimhan in favour of N.Rajashekaran (copy of same on record is already Ex.PW1/D). I have compared the records brought with the Ex.PW1/B & Ex.PW1/D) and they are same and correct.

XXXX by respondents.

Nil, as respondent no.2 has already given no objection to the petition and respondent no.3 to 5 are ex-parte."

8. Mr.Alok Tewari, one of the attesting witness, has filed his affidavit dated 29th July, 2016. In the said affidavit, he has deposed as under:-

"Affidavit of Alok Tewari S/o Sh.R.P. Tewari, R/o C-5, DDA Flats, Saket, New Delhi-110017, aged 40 years.

I, the above named deponent do hereby solemnly affirm and declare as under:-

1. I say that I am one of the attesting witnesses to the Will dated 23.10.2002 duly registered at document no.7925 on 23.10.2002 executed by Sh. S.Narasimhan, S/o Late Mr. K.N.Sambasivasastri.

2. I say that the deceased S.Narasimhan signed the said Will dated 23.10.2002 in my presence and one Sh. Lalit Kumar Malik, B/119, West Patel Nagar, New Delhi-110008."

9. In view of the above, this Court is satisfied that the petitioner has succeeded in proving that the deceased Mr.Sambasiva Narsimhan had executed the Will dated 23rd October, 2002 and the said Will was his last Will and testament.

10. Consequently, the present petition is allowed. The letters of administration with a copy of the Will dated 23rd October, 2002 annexed thereto is granted in favour of the petitioner, subject to his furnishing the requisite Court fee in terms of the valuation report and submitting an administrative bond with one surety in accordance with law.

MANMOHAN, J JULY 25, 2017 KA