Delhi High Court
Smt. Shilpa Rana vs State (Nct Of Delhi) on 15 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 218/2017
% 15th May, 2017
SMT. SHILPA RANA ..... Appellant
Through: Mr. Amit Rao, Advocate.
versus
STATE (NCT OF DELHI) ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.18176/2017 (exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
FAO No.218/2017 and C.M. No.18175/2017 (stay)
2. This first appeal is filed by the appellant, petitioner in the
trial court, impugning the judgment of the probate court below dated
25.3.2017 whereby the probate court has dismissed the petition for
grant of letters of administration with the Will annexed dated
20.4.2012 of the deceased mother of the petitioner one Smt. Pooja
Nijhawan. The probate court below has dismissed the petition seeking
letters of administration on the ground that the Will talks of exclusion
of other legal heirs but the other legal heirs have not been made a party
to the petition. The court below has also held that the appellant has not
filed any proof that she was the daughter of the deceased Smt. Pooja
Nijhawan.
3. In my opinion, the court below has unfortunately gone on
a total off tangent because if a person avers that there are no other legal
heirs, and citation has also been issued in the newspaper for inviting
objections to the petition, but no one has come forward claiming to be
the legal heir of the deceased mother Smt. Pooja Nijhawan, then, the
statement of oath of the appellant has to be taken as sufficient for the
purpose of the appellant being taken as the sole natural legal heir of the
deceased mother Smt. Pooja Nijhawan. This is all the more so because
if a probate is wrongly granted alleging that there is only one legal heir
whereas there were other legal heirs, then, the other legal heirs can
always apply to the court for revocation of the probate under Section
263 of the Indian Succession Act, 1925. Therefore there was no reason
for the court below to decline the grant of the letters of administration
with the Will annexed simply on the ground that allegedly there are
other legal heirs who have not been made parties to the case. A note in
a Will which has used a general expression of 'exclusion of other legal
heirs' will not mean that by magic some imaginary legal heirs will
come into existence when there is only one sole natural legal heir of
the deceased being the appellant and who was the daughter of the
deceased Smt. Pooja Nijhawan.
4. In the present case the appellant has gone to grant lengths
to ensure that the Will in question dated 20.4.2012 executed by mother
Smt. Pooja Nijhawan is proved on record. Appellant filed not only her
own deposition as affidavit by way of evidence but also filed affidavits
by way of evidence of both the attesting witnesses of the Will.
Appellant also filed a surviving certificate issued by the SDM with
respect to the appellant being the legal heir of the deceased. This
surviving certificate dated 27.6.2014 issued by the SDM has been
exhibited as Ex.PW8/A (collectively running into 18 pages). A total of
eight witnesses have been examined by the appellant to prove the Will,
the factum of ownership of Smt. Pooja Nijhawan of the bequeathed
immovable property, death of Smt. Pooja Nijhawan etc etc.
5. In view of the above, it is seen that the deceased Smt.
Pooja Nijhawan died on 18.6.2012 and which was proved by means of
the death certificate as Ex.PW1/4. The Will was proved through the
attesting witness as Ex. PW1/2. The Will was duly registered with the
Sub Registrar-II, Kashmere Gate, Delhi and the form of registration
was proved through the record keeper/clerk who deposed as a
summoned witness PW-4. Both the attesting witnesses being Sh. Vijay
Kumar and Sh. Ganga Ram have appeared and deposed as PW-2 and
PW-3. As already stated above, it was an uncontested case and there is
no cross-examination of any of the witnesses of the appellant.
6. In view of the above discussion, this appeal is allowed.
Appellant is granted letters of administration with the Will annexed
with respect to the Will dated 20.4.2012 of Smt. Pooja Nijhawan Ex.
PW1/2. Appellant will be granted letters of administration with the
Will annexed and there is no need of the appellant to file any surety
bond or administration bond because the appellant is the sole
beneficiary and the sole natural legal heir of the deceased Smt. Pooja
Nijhawan. There is no need for filing of surety bond or administration
bond because in the present case there is no administration of the Will
required with the appellant acting as a trustee of the implementation of
the Will.
7. The appeal is allowed and disposed of in the aforesaid
terms.
MAY 15, 2017 VALMIKI J. MEHTA, J
Ne
