Delhi High Court
Ashok Arora vs The State & Anr. on 15 November, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 15th November, 2017
+ TEST.CAS.91/2012
ASHOK ARORA ..... Petitioner
versus
THE STATE & ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Ashish Rana, Advocate.
For the Respondents : Ms. Divyani Sehgal for Mr. Naushad Ahmed Khan,
Advocate for respondent No.1/State
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGEMENT
SANJEEV SACHDEVA, J
1. Petitioner has filed the present Petition under Section 276 of the
Indian Succession Act, 1925 (hereinafter referred to as the Act) for
Grant of probate in respect of will dated 26.07.2010 of late Capt.
Rishi Raj Arora (Retd). Petitioner claims to be the real brother of the
deceased Capt. Rishi Raj Arora (Retd.).
2. It is contended that Late Capt. Rishi Raj Arora was married
Respondent No. 2 in the year 1972 but had been living separately
from her wife for more than 30 years due some misunderstanding and
differences of opinion and thinking. The deceased and Respondent
No.2 lived together lastly as husband and wife in a rented
accommodation at H.No. E-172, West Patel Nagar, Delhi. Thereafter
neither Rishi Raj Arora nor the Petitioner had any knowledge about
the whereabouts of Respondent No.2.
3. Late Capt. Rishi Raj Arora is stated to have expired on
22.02.2012. He had no issue from the wedlock with Respondent No.2.
He is stated to have left behind immoveable properties and movable
assets within the territorial jurisdiction of this court. It is stated that at
the time of his death, his permanent place of residence was in Delhi,
within the territorial limits of this Court.
4. It is contended that Late Capt. Rishi Raj Arora executed his last
Will and testament dated 26.07.2010 which was duly registered vide
document bearing Registration no.4740 in Book no. 3 Volume No.527
at Pages 105 to 107 on 26.07.2010 with the Sub Registrar IX
Kapashera, New Delhi.
5. Notice of the petition was issued to the Respondents on
11.03.2013. Citation was published from Delhi and Hyderabad in
"The Hindu" and also affixed at a conspicuous part of properties
bearing No.MIG Flat No.455, Ground Floor, Block-H, Naraina Vihar,
New Delhi, plot No.75, Block-H, out of survey No.582, Sector-lII,
East City from out of sanctioned layout No.40, situated at Bibinagai"
Village, Bibinagai" Mandal, Nalgando, District Hyderabad, as well as
the Notice Board of the Court.
6. Respondent No.2 has been served by way of publication in
"The Hindu" edition dated 31.01.2013. Despite service none appeared
for respondent No. 2. Respondent No. 2 was proceeded ex-parte on
20.05.2013
7. The petitioner has led his ex-parte evidence. The Petitioner, Mr.
Ashok Arora, filed his affidavit of evidence as PW1 affirming the
averments contained in the petition. The photocopy of passport of
Petitioner was exhibited as Exb. PW-l/A to prove the identity of the
Petitioner. He has also proved the death of late Capt. Rishi Raj Arora
on 22.02.2012 by producing the Death Certificate and exhibiting it as
Exb.PWl/B. Certified copy of the will was produced and the same was
marked as Exb.PW-l/C. The photocopy of the SBI passbook of the
deceased was exhibited as Exb.PW-l/D & E to prove the balance in
the account of the deceased. Shares as per list holding statement was
exhibited as Exb.PW-l/F.
8. Mr. J.N. Tanwar the attesting witness to the said Will was
examined as PW2. He deposed in his affidavit by way of evidence as
under:
"l. That the deponent is one of the attesting witnesses
of the Will dated 26.07.2010 duly registered with Sub-
Registrar-IX, Delhi vide Registration No. 4740 in Book
No.III, VolumeNo.527 on pages 105 to 107 made and
executed by late Capt. Rishi Raj. Arora in favour of his
brother Ashok Arora. Photocopy of my election card is
exhibited herewith as Exb.PW-2/A [O.S.R.]. The certified
copy of WILL is already exhibited herewith as Exb.PW-
l/C.
2. That the said, WILL was signed by the Executant
in presence of the deponent and another witness namely
Sh. S.P. Verma.
3. That at the time of. execution of the said WILL,
deceased Sh. Rishi Raj Arora was in state of sound and
disposing mind and executed without any fraud, pressure
or coercion in any manner.
4. That it is my true and correct statements".
9. Mr. S.P. Verma, the other attesting witness to the said Will was
examined as PW3. In his affidavit by way of evidence the said witness
affirmed as under:
"1. That the deponent is one of the attesting witnesses
of the Will dated 26.07.2010 duly registered with Sub-
Registrar-IX, Delhi vide Registration No. 4740 in Book
No.III, VolumeNo.527 on pages 105 to 107 made and
executed by late- Capt.' Rishi Raj Arora in favour of his
brother Ashok Arora. Photocopy of my election card is
exhibited herewith as Exb. PW-3/A [O.S.R.]. The
certified copy of WILL is already exhibited herewith as
Exb.PW-1/C.
2. That the said WILL was signed by the Executant in
presence of the deponent and another witness namely Sh.
J.N. Tanwar.
3. That at the time of execution of the said WILL,
deceased Sh. Rishi Raj Arora was in state of sound and
disposing mind and executed without any fraud, pressure
or coercion in any manner.
4. That it is my true and correct statement"
10. Sh. Rajbir, UDC (PW - 4) from the office of Sub-Registrar
produced the Will registered in the records of the Sub Registrar. Sh. S
C Gujral Manager Syndicate Bank (PW - 5) and Sh. Sushil Kumar
Jain, Manager State Bank of India Narayana Branch, Delhi (PW - 6)
proved the respective bank account statements of the deceased.
11. There is no rebuttal to the evidence of the Petitioner. None of
the witnesses of the petitioner were even cross examined.
12. Consequently, I am satisfied that the petitioner has duly proved
the factum of death of Late Capt. Rishi Raj Arora. He has also proved
that Late Capt. Rishi Raj Arora had duly executed his last Will and
Testament on 26.07.2010 (Exb. PW1/C). The requirements of section
63 of the Act stand satisfied.
13. Though, petitioner seeks grant of probate under section 276 of
the Act, the petitioner, not having been appointed as an Executor, is
not entitled to grant of probate in terms of Section 222 of the Act.
However, as the Petitioner has duly satisfied the requirements of
section 276 of the Act and established that the requirements of section
63 of the Act also stand satisfied, it would be in the interest of justice
to grant letters of administration, with the Will annexed to the
petitioner.
14. In view of the above, the present petition is allowed. Letters of
administration, with a copy of Will dated 26.07.2010 annexed thereto
is granted in favour of the petitioner, subject to the petitioner paying
the requisite fee in terms of the valuation report.
15. The question further arises is as to whether the petitioner, who
is the sole beneficiary under the Will dated 26.07.2010 should be
required to furnish an Administration Bond under section 291 of the
Act.
16. To hold that Section 291 envisages the furnishing of an
administration bond by a sole beneficiary or a sole legatee would lead
to absurd consequences, for, the said sole beneficiary/sole legatee
would then be saying surety for the estate of the deceased, which has
exclusively devolved upon him, and it would be paradoxical to hold
that a person can stand surety for himself. 1
17. Keeping in view that the petitioner is the sole beneficiary under
the Will dated 26.01.2010, the petitioner is granted exemption from
executing an administration bond.
18. The petition is allowed in the above terms. No orders as to
costs.
SANJEEV SACHDEVA, J
NOVEMBER 15, 2017
HJ
Sanjay Suri v. State, AIR 2004 Delhi 9; Richa Pardeshi v. State, 2012 (131) DRJ
92; Veena Ramtri v. State (TEST. Cas. 61/2015 decided on 30.08.2017)
