Delhi High Court
Rahul(Minor) vs State & Others on 25 September, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TEST.CAS. 75/2015
RAHUL(MINOR) ..... Petitioner
Through: Mr. Rajesh Rai, Advocate
versus
STATE & OTHERS ..... Respondents
Through: None
% Date of Decision: 25th September, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. Present petition has been filed on behalf of the petitioner by his father
and natural guardian, Sh. Surinder Pal under Sections 276 and 278 of the
Indian Succession Act, 1925 for grant of letters of administration in respect
of Will dated 27th September, 2002 of the deceased Sh. Mam Chand.
2. Since the petitioner-minor in the present case has sued through his
father who has no interest adverse to that of the minor-petitioner, the
petitioner‟s father is appointed as the guardian for the minor-petitioner for
the present petition.
3. It has been averred in the petition that the petitioner is the grandson of
the deceased Sh. Mam Chand, who expired on 01st February, 2009. The
deceased is stated to have executed a registered Will dated 27th September
2002, which was duly attested by Capt. S.R. Pal Holkar and Mr. Dharampal
Singh. It is stated that the grandfather of the petitioner during his lifetime,
executed the said bequeathing 56 sq. yrds. out of 226 sq. yrds. out of the
property bearing no. WB-4, Gali No. 1, Shakarpur, Delhi - 110 092 in his
favour.
4. The Will dated 27th September, 2002 executed by the deceased is
reproduced hereinbelow:-
"This deed of Will is made at Delhi on this 27 day of September,
2002 by Shri Mamchand S/o late Trikha Ram R/o WB-4, Street
No.1, Shakerpur, Delhi-110092 hereinafter called Testator in
favour of Rahul minor son of Sri Surendra Pal R/o WB-4, Street
No.1, Shakerpur, Delhi 110092 hereinafter called the Testimony.
Life is short God knows it may come to an end. My age is about 57
years. I, therefore, with my free will and consent without any
pressure or compulsion from other and in my sound disposing mind
make this will as under:-
Whereas the Testator is/was the actual owner and in possession of
land measuring 4½ Biswa; 226 sq. yds. out of Khasra No.180
known as plot No.2, in the area of village Shakerpur Abadi, Delhi-
110092. The said property purchased by the Testator from Sri
Ikram Singh S/o Pt. Kishan R/o Seelampur Shahadra, Delhi vide
sale deed dated 9.11.1964 duly registered as document No.10286
Book No.1, volume No.1184 on Page No.181-182 dated 9.11.1964
with the office of Sub Registrar Delhi.
The Testator in the year 2000 had executed a General Power of
Attorney in favour of his son Birendra Pal of part of property
No.WB-4, area measuring 56 sq. yds. out of 226 sq. yds. on plot
No.2 out of Khasra No.180 bounded as:-
East: Property of Satish Pal park facing.
West: Property of Rahul
North: Property of Surender Pal
South: Property of Birendar Pal
The Testator on 7.12.2000 had executed an another General Power
of Attorney in favour of his son Satish Pal of part of property
No.WB-4, area measuring 56 sq. yds. out of 226 sq. yds. on plot
No.2 out of Khasra No.180 bounded as:
East: Property of Satish Pal.
West: Property of Rahul
North: Property of Surender Pal
South: Property of Birender Pal
Thereafter Testator on 7.3.2001 had executed an another General
Power of Attorney in favour of his son Surendra Pal of part of
property No. No.WB-4, area measuring 56 sq. yds. out of 226 sq.
yds. on plot No.2 out of Khasra No.180 bounded as:
East: Property of Satish Pal.
West: Property of Rahul
North: Property of Surendra Pal
South: Property of Birender Pal
The Testator by the present will wants bequeath his own share to
his grandson Rahul of part of property no. No.WB-4, area
measuring 56 sq. yds. out of 226 sq. yds. on plot No.2 out of Khasra
No.180 bounded as:
East: Property of Satish Pal.
West: Property of Rahul
North: Property of Surendra Pal
South: Property of Birender Pal
I do hereby bequeath that after my death the Testimony shall
become the absolute owner of the above said property and shall be
entitled to sell, mortgage, gift or to transfer the said property in any
way without any interference or disturbance from others and my
legal heirs i.e. my sons, daughter, wife or any other relatives shall
not right or concern with the above said property. If any one raise
any objection against this Will then the same objection shall be
considered as null and void before the Court of law and biradari
panchayat.
This is my last and final Will and earlier I have not executed any
other Will in respect of the said property in favour of any other
person.
IN WITNESSES THEREOF: the Testator has signed this Will on
this day, month and year first above written.
Witnesses (Thumb Impression)
(Thumb Impression) Testator
Mamchand
1. Shri Dharampal Singh,
S/o. Shri Khem Chand
R/o. WB-4, Shakarpur
Delhi - 110092
2. Capt. S.R. Pal Holkar,
S/o. M.R. Pal Holkar,
Shakarpur, Delhi - 92"
5. Notice was issued on the present petition on 04th May, 2016. 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 „Jan Satta‟.
6. Vide order dated 06th November 2015, the other Class-1 heirs of the
deceased namely, respondent no.2 - Sh. Virender Pal, son of the deceased
and respondent no.3 - Sh. Satish Pal, son of the deceased were impleaded at
the request of the petitioner. Despite service, objections have not been filed
by either respondent no.2 or respondent no.3. In fact, none ever appeared
for respondent no. 3. For respondent no. 2, his counsel appeared for a
couple of hearings, filed his Vakalatnama. However thereafter despite
several opportunities the respondent no. 2 did not appear before this Court.
7. Sh. Surrinder Pal, father and natural guardian of the petitioner, has
adduced ex parte evidence by filing his own affidavit which is marked as
Ex.PW1/X. It has been stated by the father of the petitioner in his affidavit
that the Will was duly executed by the Testator in the presence of the
witnesses. It is stated that the Testator expired on 01st February, 2009
leaving behind his last will and testament dated 27th September, 2002. The
petitioner has proved the Death Certificate of the Testator as Ex.PW1/10 and
the Will of the Testator as Ex. PW1/2.
8. Mr. S.R. Pal Holkar, one of the attesting witnesses has filed his
affidavit dated 01st September, 2017. In the said affidavit, he has deposed as
under:-
"I S.R.Pal Holkar S/o. Sh. Ram Pal R/o - WB - 19, Street No. -
1, Shakarpur, Delhi-110092 aged about 74 years, do hereby
solemnly affirm and state as under:-
1. I say that I am the attesting witness to the last Will and
testament of testator Sh. Mam Chand which is already marked
as Exhibit-PW1/2. I signed Exhibit PW1/2 in presence of late
Sh. Mam Chand and on his direction.
2. I say that I was present and saw the testator affixing his
signature and thumb impression on Exhibit PW1/2.
3. That Late Mam Chand was my neighbour and was of sound
mind at the time of the execution of Exhibit PW1/2."
(emphasis supplied)
9. In view of the above, this Court is satisfied that the petitioner has
succeeded in proving that the deceased Sh. Mam Chand had executed the
Will dated 27th September, 2002 and the said Will was his last Will and
testament. The Court is further of the opinion that the requirements of
Section 63 of the Indian Succession Act, 1925 stand satisfied in the present
case.
10. Consequently, the present petition is allowed. The letters of
administration with a copy of the Will dated 27th September, 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
SEPTEMBER 25, 2017
m/rn
