Delhi High Court
Vipin Kumar vs State & Ors. on 28 January, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28th January, 2020
+ TEST.CAS. 23/2019
VIPIN KUMAR ..... Petitioner
Through: Mr. R.C.Khatri, Adv.
Versus
STATE & ORS. ..... Respondents
Through: Mr. Harsh Vardhan Sharma,
Adv. for R-2 to 4.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This petition under Section 276 of the Indian Succession Act,
1925, is filed seeking probate/letters of administration of the document
dated 22nd August, 2013 registered on 13th September, 2013, as the
validly executed last Will of S. Pritam Singh son of Late S. Diwan
Singh ordinary resident of 45/77, West Punjabi Bagh, New Delhi, who
died on 20th November, 2017.
2. It is pleaded in the petition that S. Pritam Singh was married to
Gurdeep Kaur and three children namely Avtar Singh, Gurlad Singh
and Rupinder Kaur i.e. respondents no. 2 to 4 herein were born out of
the said wedlock. It is further pleaded that Gurdeep Kaur, wife of S.
Pritam Singh pre deceased S. Pritam Singh on 6th February, 2015.
3. The petition came up first before this Court on 18 th March,
2019, when notice/citation of the same was ordered to be issued and
the respondent no.1 State directed to submit a report of valuation of
the property.
Test.Cas.No.23/2019 Page 1 of 5
4. The order dated 28th August, 2019 records the statement of the
counsel for the respondents no. 2 to 4 that affidavits of no-objection
had been filed and citation had been effected and none had preferred
objections to the probate/letters of administration sought.
Accordingly, the petitioner was relegated to evidence.
5. The order dated 25th September, 2019 of the Joint Registrar
records that the petitioner had examined himself as PW1 and Hitesh
Khurana, as PW2 and closed his evidence.
6. I have perused the records. The petitioner, appearing as PW1
has in his affidavit by way of examination-in-chief proved the Death
Certificate of S. Pritam Singh as Ex.A1 and further deposed, (i) that he
is the beneficiary of the document claimed to be the validly executed
last Will of the deceased; (ii) that S. Pritam Singh was married to
Gurdeep Kaur who pre deceased S. Pritam Singh; her death certificate
has been proved as Ex.A2; (iii) that out of the said wedlock, three
children i.e. respondents no. 2 to 4 were born; and, (iv) that S. Pritam
Singh was of sound mind at the time of execution and registration of
the document claimed to be the validly executed last Will.
7. PW2 Hitesh Khurana, in his affidavit by way of examination-in-
chief has deposed, (i) that he was the witness to the Will dated 22nd
August, 2013 registered on 13th September, 2013 made by S. Pritam
Singh; (ii) that S. Pritam Singh had put his signatures in English on
the Will in his presence and at that time S. Pritam Singh was having
full knowledge and understanding of the contents of the Will and had
read and understood the Will and admitted before him the correctness
Test.Cas.No.23/2019 Page 2 of 5
of the contents thereof; and, (iii) that he was present and saw S. Pritam
Singh affixing his signatures on the Will and testament dated 22nd
August, 2013 registered on 13th September 2013 of his own free will.
The said witness, when tendering his affidavit by way of examination-
in-chief in evidence before the Joint Registrar on 25th September,
2019, only identified his own signatures on the affidavit by way of
examination-in-chief Ex.PW2/A and on the verification accompanying
the petition and did not identify the signatures of S. Pritam Singh on
the original Will on which Ex.A3 was put or his own signatures
thereon.
8. Else I have perused the registered document stated to be the
validly executed last Will and find that thereunder, the deceased has
not appointed the petitioner as the Executor. Probate of validly
executed last Will proved to be of S. Pritam Singh can be granted only
to the named executor and the petitioner as a beneficiary under the
Will is entitled only to grant of letters of administration with copy of
the Will proved annexed thereto. However, unfortunately petitions
continue to be filed, without realising the difference between probate
and letters of administration and claiming the reliefs in the alternative.
9. However, even if the aforesaid defect were to be ignored, the
fact remains that the document claimed to be the Will has not been
proved in accordance with law. A Will can be proved only by an
attesting witness and not by any other person. The document claimed
to be the Will in the present case has been purported to be proved by
the petitioner himself who is not an attesting witness and PW2
Test.Cas.No.23/2019 Page 3 of 5
examined as the attesting witness, though has deposed being an
attesting witness to the Will of S. Pritam Singh, has not identified the
signatures of S. Pritam Singh thereon and/or his own signatures
thereon. He has also not deposed that the document was witnessed by
any other person and not identified signature of any other person
which the document purports to bear.
10. However finding the aforesaid lacunas / defects / faults to be
owing to ignorance of the counsel, it has not been felt appropriate to
penalize the petitioner therefor. Else, in view of no-objection of the
heirs and in view of the matter otherwise having a ring of truth, it is
deemed appropriate to allow the petition.
11. The petition is allowed.
12. Letters of administration with copy of the document dated 22 nd
August, 2013 registered on 13th September, 2013 on which Ex.A3 has
been put, as the validly executed last Will of S. Pritam Singh son of
Late S. Diwan Singh ordinary resident of 45/77, West Punjabi Bagh,
New Delhi is ordered to be granted to the petitioner, subject to the
petitioner depositing the requisite stamp duty and furnishing
administration bond of the value of the property. However since the
petitioner is found to be the sole beneficiary of the property
bequeathed under the Will, the petitioner is exempted from furnishing
surety with administration bond.
13. It appears that the petitioner is the purchaser of the property
bearing No.1, Road No.34, Class B built on land admeasuring 1050
sq. yds., East Punjabi Bagh, New Delhi bequeathed under the Will in
Test.Cas.No.23/2019 Page 4 of 5
his name by S. Pritam Singh. It is thus made clear that this order of
grant of letters of administration shall not be deemed to sanction non
compliance of any other law, rule or regulations.
14. The petition is disposed of.
RAJIV SAHAI ENDLAW, J.
JANUARY 28, 2020
'ak'..
