Delhi High Court
Ishan Kapur vs State & Ors on 17 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 31.01.2017
% Decided on: 17.03.2017
+ TEST.CAS. 13/2013 & I.A.2608/2013
ISHAN KAPUR ..... Petitioner
Through: Ms. Sandhya Kohli, Advocate.
versus
STATE & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT
1. The present petition is filed by the petitioner through Power of
Attorney namely Ms.Avani Kapur for grant of probate of the Will dated
01.09.2005 executed by his father Sh.Shiv S.Kapur in respect of his estate
under Section 276 of the Indian Succession Act, 1925. It is submitted that
his father had expired on 06.02.2010 leaving behind his wife, son and a
daughter. Smt. Suvira Kapur wife of the testator also died on 24.11.2011
executing a Will dated 10.04.2008 and a codicil dated 09.09.2010, by which
she had appointed her daughter namely Ms.Kavita Dina Medland as the sole
executor of her Will. The petitioner was also appointed as an executor in
TEST CAS.13/2013 Page 1
her Will but he expressed his unwillingness to act as an executor. The
testator had two sons and a daughter. Sh.Rajiv Alochan Kapur, pre-
deceased son of the testator had a daughter, Ms.Avani Kapur who besides
being a legal heir of testator, is acting as a power of attorney of the
petitioner. It is submitted that in the said Will the testator had appointed his
brother-in-law Mr.Prahlad Dev Malhotra as the administrator of the Will.
The Will also stipulated that on the demise of Mr.Prahlad Dev Malhotra, the
petitioner shall be the administrator of the Will. It is submitted that
Mr.Prahlad Dev Malhotra had expired on 16.05.2010 before he could
administer the Will. Hence the petitioner is the sole surviving administrator
of the said Will. The petitioner is the son and the respondent no.2 is the
daughter and the respondent no.3 is the widow of the pre-deceased son
Mr.Rajiv Alochan Kapur, of the testator. It is submitted that the testator was
the permanent resident of property bearing Flat No.14 and Barsati at 45,
Friends Colony (East), New Delhi and the said Will was executed by him on
his own free will and without any force and coercion and undue influence
and in his sound disposing mind and health. In the said Will, he had
bequeathed 50% joint share in the said property (house) in favour of his wife
creating life interest and after her demise, its distribution in equal proportion
TEST CAS.13/2013 Page 2
to petitioner and the respondent no.2. On these submissions, it is prayed that
probate of the Will be granted to the petitioner.
2. The notice of the petition was issued to the State as well as to the
legal heirs of the testator i.e. respondents no.2 to 4. The citation was
published in 'Times of India' and 'Navbharat Times' on 15.02.2013. The
valuation report was also sought and the Assistant Collector, New Delhi has
submitted his report whereby valuing the property at Rs.1,75,34,731/-. The
respondents no.2 and 4, the sister and the niece of the petitioner have
furnished their no objections along with their affidavits. None presented any
objection to the said Will. Respondent no.3, the daughter-in-law of the
testator did not respond to any court processes.
3. The petitioner has examined two witnesses i.e. his attorney as PW-2
and one of the attesting witness of the Will Mr.A.V.Ravindranath as PW-1.
The attesting witness Mr.A.V.Ravindranath (PW-1) has tendered his
evidence by way of affidavit Ex.PW-1/A. He has identified his signatures
on the original Will produced before the court at point 'D' and that of
testator at point 'E' and signatures of another witness at point 'F'. He has
also duly deposed that the testator had signed the Will in his presence and in
the presence of other witness Mr.J.S.Nirody. He has also deposed that he
TEST CAS.13/2013 Page 3
had signed the Will in the presence of the testator and the other attesting
witness. He has thus duly proved the execution of the Will. PW-2 has
proved the power of attorney Ex.PW-2/1 issued in her favour by the
petitioner. She has proved original Will. She has proved the death
certificate of Sh.Shiv S. Kapur dated 06.02.2010 as Ex.PW-2/3. She has
also proved that the deceased was survived by his wife (now deceased), the
petitioner, respondent no.2, respondent no.3 (daughter-in-law) and
respondent no.4 (grand-daughter) as the only Class I legal heirs and the list
is proved as Ex.PW-2/4.
4. I have heard arguments and perused the relevant records.
5. From the testimony of PW-1, I am satisfied that Sh.Shiv S. Kapur had
executed a valid Will. The Will was signed by him in the presence of two
attesting witnesses and the witnesses also signed the Will in the presence of
the testator. The contents of the Will clearly establishes that the testator had
appointed initially Mr.Prahlad Dev Malhotra, his brother-in-law as
administrator of his estate and in eventuality of his demise, the burden was
put on the petitioner to act as a sole administrator of the said Will. The
witnesses have also duly proved that at the time of his death, the testator was
survived by his wife, son, daughter and grand-daughter. The Will also
TEST CAS.13/2013 Page 4
records that his pre-deceased son Mr.Rajiv Alochan Kapur and his first wife
had divorced each other and thereafter his son married to Ms.Smrithi Talwar
(respondent no.3) but the marriage between them did not last very long. The
testator had further noted that they were living separately from 2005 and that
they had started the divorce proceedings by way of mutual consent but he
was not aware of the outcome of the divorce proceedings. The testator, thus,
has not termed respondent no.3 as a divorced wife of his pre-deceased son
namely Mr.Rajiv Alochan Kapur. No evidence has been produced by the
petitioner to prove that his pre deceased brother had divorced respondent
no.3. Therefore, the respondent no.3 is also the Class I legal heir of the
testator. However, despite the service of processes and the citation, she had
not filed any objection in this petition. Other respondents i.e. respondent
no.2 and respondent no.4 have filed their no objections supported by
affidavits. Respondent no.2 is the sister of the petitioner and respondent
no.4 is the daughter of pre-deceased brother of the petitioner and she in fact
is also the power of attorney of the petitioner. She has also filed a no
objection to this petition. Vide this Will the testator had wished to grant the
Letter of Administration of the Will to the petitioner and hence, I am
satisfied that there is no impediment in granting Letter of Administration to
TEST CAS.13/2013 Page 5
the petitioner. I grant Letter of Administration of the estate of the deceased
to the petitioner subject to his paying requisite court fees. Requisite court
fees shall be paid upon the valuation of the various properties under the
Will. The valuation be done by the Registrar General within three months
from this order of the court of all the properties mentioned in the Will except
the property of which the valuation report is submitted by the Assistant
Collector, New Delhi vide his report dated 31.12.2016 and thereafter on
payment of the court fee on such valuation by the petitioner, the Letter of
Administration shall be granted to him on his furnishing administrative bond
with one surety to the satisfaction of the Registrar General of this court.
6. The petition stands disposed of in the above terms.
DEEPA SHARMA
(JUDGE)
MARCH 17, 2017
rb
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