Delhi High Court
Ashok Kumar Bawa & Anr vs State & Ors. on 20 February, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 20th February, 2019.
+ TEST.CAS. 50/2016
ASHOK KUMAR BAWA & ANR ..... Petitioners
Through: Mr. Abhinav Dhingra, Adv.
Versus
STATE & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Probate is sought by the two petitioners viz. Ashok Kumar and Naresh
Mohan Bawa of the document dated 25th January, 2012 claimed to be the
validly executed last Will of Late Sh. Sunil Kumar Bawa, son of Late Sh.
Charanjit Lal Bawa who died at Dehradun on 10th October, 2015 leaving an
immovable property No.101, Navjiwan Vihar, New Delhi.
2. The petition came up first before this Court on 12th July, 2016 when
finding the pleadings in the petition to be inadequate, the petitioners were
directed to file an affidavit disclosing the particulars as detailed in the said
order. Though the petitioners filed an affidavit but the same on 22nd August,
2016 was found to be inadequate and another opportunity granted. The
petitioners thereafter filed an application under Order I Rule 10 of the CPC
and vide order dated 3rd October, 2016 notice of the probate petition to the
close relatives disclosed and citation of the petition ordered to be issued and
direction also issued to the Chief Controlling Revenue Authority to submit
the report of valuation of the property.
Test.Cas.50/2016 Page 1 of 4
3. The order dated 8th October, 2018 records that close relatives
impleaded as respondents no.2 to 19 had been served and had not filed any
objections and had not entered appearance. The petitioners were accordingly
relegated to leading evidence.
4. The petitioners in their evidence have examined petitioner No.2 and
the two attesting witnesses and closed their evidence.
5. The counsel for the petitioners has been heard.
6. The petitioners are not the named executors in the document claimed
to be the Will and are not entitled to maintain a petition seeking probate.
Under Section 222 of the Indian Succession Act, 1925, probate can be
granted only to appointed executor. The remedy of the petitioners as
beneficiaries of the document, was to seek Letters of Administration with
copy of the Will annexed. The petition is thus liable to be rejected.
However, since the petition was entertained, the said lacuna is ignored.
7. Only a photocopy of a certified copy of the purported Will is on record
and Ex.PW1/A is found to have been put thereon only. On enquiry, where is
the original document claimed to be the Will, the counsel for the petitioners
states that the original has not been produced and only a photocopy of a
certified copy of the Will has been produced and on which Ex.PW1/A has
been put. On being asked to show the certified copy of the Will, the counsel
for the petitioners states that the same is also not available with him.
8. I am of the view that even if the petitioners have lead evidence of
circumstances entitling the petitioners to lead secondary evidence, it was
incumbent on the petitioners to summon the record of the Sub-Registrar with
Test.Cas.50/2016 Page 2 of 4
whom the Will is registered and for the purported witnesses to the Will to
identify their signatures as attesting witnesses on the copy of the registered
Will on record brought by the Sub-Registrar and mere identification of
signatures of the testator as w4W3Q 44ell as the attesting witnesses on the
photocopy of certified copy does not suffice.
9. On enquiry, as to the relationship of the petitioners to the Testator, it is
stated that the petitioners are the cousins of the Testator. On further
prodding, attention is invited to the affidavit filed in pursuance to the
directions aforesaid prior to issuance of notice of the petition and wherefrom
it transpires that the two petitioners are the sons of the brother of the father
of the Testator. As per the said table, the parents of the Testator and the sole
sibling of the Testator had pre-deceased the Testator and the Testator was
unmarried and without any children.
10. The close relatives impleaded are informed to be the children of
another brother of the father of the Testator. On enquiry, it is stated that the
father of the Testator had two other brothers and the petitioners are the sons
of one of the brothers and the respondents no.2 to 9 are the children of the
other brother. The counsel however has no idea whether the father of the
Testator had any sisters and states that there is nothing in that regard on the
record.
11. A perusal of the list of Class-II heirs in Hindu Succession Act, 1956,
claimed to be applicable to the deceased, shows that in the absence of any
heir in categories I to VI therein, the estate of a male Hindu devolves on
father's brother and father's sisters of the deceased. Though the two brothers
of the father of the deceased are stated to have pre-deceased the deceased but
Test.Cas.50/2016 Page 3 of 4
there is nothing to show whether any sister of the father of the deceased
was/is alive.
12. The next category VIII in Class II supra is, mother's father and
mother's mother of the deceased and qua which also there is no averment in
the petition or in the evidence.
13. The next category IX is mother's brother and mother's sister of the
deceased and qua them also there is nothing stated. The petitioners and the
respondents No.2 to 9, as children of brother of father of Testator, would
have a chance thereafter only i.e. if there are no sisters of father of Testator,
no parents of mother of Testator and no brothers and sisters of mother of
Testator.
14. It thus appears that the petition has been filed and is being pursued
without giving an opportunity to the heirs in law of the deceased to contest
the same.
15. Since the duty cast on the Court in testamentary jurisdiction is a
solemn duty, the said lacuna cannot be overlooked.
16. Though the counsel for the petitioners states that an opportunity be
given to implead the concerned persons but since as aforesaid the entire
petition is misconceived, the same is not deemed appropriate and it is
deemed appropriate that the petitioners file a fresh petition taking care of all
the aforesaid lacunas.
17. Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
FEBRUARY 20, 2019/'gsr'
