Delhi High Court
Miss Raj Zutshi vs State & Ors. on 26 July, 2018
16
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TEST.CAS.19/2015
MISS RAJ ZUTSHI ..... Petitioner
Through: Ms.Aachal Aggarwal, Advocate
versus
STATE & ORS. ..... Respondents
Through: None
% Date of Decision: 26th July, 2018
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J:
1. Today in Court, learned counsel for petitioner has handed over a
certified copy of the valuation report of Kasauli property Himachal Pradesh.
The same is taken on record.
2. It is pertinent to mention that the present petition has been filed by the
petitioner under Section 276 of the Indian Succession Act for grant of
probate in respect of Will dated 21st January, 2011 of the deceased Shri
Makhan Lal Zutshi.
3. It has been averred in the petition that the petitioner is the executor of
the Will dated 21st January, 2011 and the sister of the testator Shri Makhan
Lal Zutshi, who expired on 24th June, 2011. The deceased is stated to have
executed a Will dated 21st January, 2011, which was duly attested by Shri
M.K. Kaul and Shri Bhajan Singh. The Will dated 21st January, 2011 is
reproduced hereinunder:-
"WILL
This is the LAST WILL and TESTAMENT executed at
New Delhi on this 21st day January 2011 by me Makhan Lal
Zutshi S/o Shri Prem Nath Zutshi R/o A-59 Defence Colony, New
Delhi, hindu out of my own free will and in a full disposing state
of mind without any coercion, undue influence from anybody.
I am now aged about 71 years old and I am anxious that
after my life time all my properties whether movable or
immovable and my interest in the business concern belonging to
me should devolve smoothly according to my desires set out in
this Will so that there may not be any complications.
I acquired properties more fully described in the
schedule hereunder from my brother namely Late Wing
Commander A.N. Zutshi. Though his last and final Will dated
10.08.1990 & probate was also granted by the Hon'ble court of
Shri S.N. Dhingra, Ld. District Judge Delhi (as His Lordship
then was) on 07.01.2006 in my favour and since then the said
properties have been in my exclusive enjoyment and I have been
enjoying without any interruption from anybody.
I give, devise and bequeath the movable and immovable
properties more fully described in the annexed schedule "A"
herewith to my sister Miss Raj Zutshi Aged about 62 years who is
a spinster (unmarried) & is residing with my another brother
Shri Nanaji Jotshi who is aged about 67 years and is also
unmarried at F-88 Green Park Main New Delhi-16. My brother
is a care free person and is simpleton therefore I do not bequeath
anything in his favour but expect that my sister Miss Raj Zutshi
shall take good care of him and she will be the exclusive owner
of all my properties mentioned in Schedule "A"
and the said Miss Raj Zutshi shall be the absolute owner of all
the properties after my life time.
I appoint my sister Miss Raj Zutshi as the Executor of this Will.
This Will shall come into effect after my death.
I reserve my right to alter or revoke this Will.
Thus I have executed this Will as set out above out of my own
free Will and with a full disposing state of mind.
Signed by the TESTATOR and acknowledged by him to be his
last Will and Testament in the presence of both of us being
present at the same time, who at his request, in his presence and
in the presence of each other, have subscribed our signatures as
witnesses.
TESTATOR
(M.L. ZUTSHI)
WITNESSES:
Sd/-
1. Sh. M.K. Kaul
S/o Sh. R.N. Kaul
R/o C-42, P:amposh Enclave
GK-1, New Delhi-110048
Sd/-
2. Sh. Bhajan Singh
S/o Sh. Bhagat Singh
R/o 210/1 Neb Sarai,
Anupam Garden,
New Delhi-110068"
3. It is stated that the deceased has left behind five legal heirs, i.e. one
petitioner-sister, respondent Nos.2 and 5-two nephews, respondent Nos.3
and 4- two nieces and respondent No.6- brother.
4. Notice was issued on the present petition on 23rd March, 2015.
Citations were 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 "Veer Arjun".
5. No objection has been received to the Will after publication of the
citations. Notices were duly served on the State and the other respondents.
Valuation reports are on record.
6. Since none appeared for Respondent nos. 2 to 4 and 6, despite service,
they were proceeded ex-parte vide order dated 09th August, 2017.
Respondent No. 5 has filed a letter dated 11 th September, 2017 giving his no
objection to the probate.
7. Miss Raj Zutshi, the sister of the deceased has filed an affidavit by
way of evidence and the said affidavit has been marked as Ex.PW1/X. It has
been stated by the petitioner that she is the executor and sole beneficiary of
the Will which was duly executed by the Testator in the presence of the
witnesses. It is further stated that the Testator expired on 24th June, 2016 at
New Delhi leaving behind his last will and testament dated 21st January,
2011. The petitioner has proved the death certificate of the Testator as
Ex.PW1/2.
8. Shri M.K. Kaul, attesting witness has filed his affidavit dated 15th
November, 2016. In the said affidavit, he has deposed as under:-
"1. I am one of the attesting witnesses of the last Will and
testament of Late Shri Makhan Lal Zutshi.
2. I say that I was present on 21.01.2011 at A-59, Defence
Colony, New Delhi along with another attesting witness Shri
Bhajan Singh and the testator Shri Makhan Lal Zutshi. All of
us signed the Will in the presence of each other and I saw
myself Shri Makhan Lal Zutshi affixing his hand and his
signature to the said Will on 21.01.2011.
3. I say that I have also signed the present Probate Petition
as one of the attesting witnesses to the Will and have gone
through the contents of the petition which are true and correct
to my knowledge.
4. That in view of the fact that no objections have been filed
by anyone there is no impediment in grant of the probate in
favour of the Petitioner."
9. In view of the above, the Court is satisfied that the petitioner has
succeeded in proving that the deceased Shri Makahan Lal Zuthshi, had
executed the Will dated 21st January, 2011 and the said Will was his last
Will and testament.
10. Consequently, the present petition is allowed. The probate in respect
of the Will dated 21st January, 2011 of deceased Shri Makahan Lal Zuthshi
annexed thereto is granted in favour of the petitioner, subject to her
furnishing the requisite Court fee in terms of the latest valuation reports and
submitting an administrative bond with one surety in accordance with law.
MANMOHAN, J
JULY 26, 2018
mn/js
