IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : PROBATE MATTER TEST.CAS.

38/2006 Decided on: 13th March, 2012

SH. RAHUL SHARMA ..... Petitioner Through :Mr. Sunil Malhotra and Ms. Vibha Sharma, Advs. versus STATE AND ORS. ..... Respondents Through :Mr. Devendra Kumar Sharma, respondent nos. 2 to 3 and LRs of respondent no. 4

Coram: HONBLE MR. JUSTICE A.K. PATHAK A.K. PATHAK, J. (ORAL) 1. By this petition under Section 276 of the Indian Succession Act, 1925, petitioner has prayed for grant of Probate or Letters of Administration in respect of the Will dated 18th June, 1996 of Late Smt. Kalawati (hereinafter referred to as Testatrix). 2. It is alleged in the petition that the Testatrix was a permanent resident of Delhi at the time of her death. She died on 4th July, 2000. She was a Hindu. During her life time Testatrix executed her last Will and testament on 18th June, 1996. Will was executed by the Testatrix in the presence of two attesting witnesses, namely, Smt. Santosh and Shri Laxman. First attesting witness is alive. Second attesting witness has since expired. Will was duly notarized by a Notary Public. Testatrix had left behind respondent nos.2 to 5 as her legal heirs. 3. Respondent no. 1 was represented through Chief Revenue Controlling Authority. Valuation report has been filed.

4. Citation was published in the newspaper The Statesman dated 9th August, 2006. No one has filed any objection to the grant of Probate in respect of the Will dated 18th June, 1996, pursuant to the publication of citation. 5. As regards respondent nos. 2 to 4, they were duly served and appeared in Court through their respective counsel. In view of the death of respondent no. 4, an application was filed by the petitioner to bring on record the legal heirs of respondent no. 4. Respondent nos. 2 and 3 have filed No Objection stating therein that they have no objection if Probate of Will dated 18th June, 1996 is granted in favour of the petitioner. Legal heirs of respondent no. 4 have also filed No Objection to the grant of Probate. 6. Respondent no. 5 has not filed any reply to the petition and/or objections opposing grant of Probate in favour of petitioner. Vide order dated 20th March, 2009, respondent no. 5 was granted last opportunity to file objections, subject to payment of conditional cost of `5,000/- (Rupees Five Thousand Only). In spite of this, objections have not been filed by the respondent no. 5. Thus, it can be inferred that respondent no. 5 has no objection to the grant of Probate to petitioner. 7. Petitioner has led evidence. He has examined himself as PW1. Attesting witness to the Will, namely, Smt. Santosh has been examined as PW2. Both these witnesses have tendered their respective affidavits in evidence. PW1 has deposed that Testatrix had executed the Will dated 18th June, 1996, in respect of the property mentioned therein, along with other documents for sale, that is, Agreement to Sell, GPA, affidavit, receipt etc. Documents have been proved by him as Ex. PW1/2 to Ex. PW1/5. He has further deposed that Smt. Kalawati died on 4th July, 2000. Death Certificate has been proved by him as Ex. PW1/6. He has categorically deposed that the Will was executed by the Testatrix in the presence of Smt. Santosh and Shri Laxman, who are attesting witnesses to the said Will. Shri Laxman had expired even prior to filing of this petition. PW1 has proved the Death Certificate of Shri Laxman as Ex. PW1/7. It is alleged that the petitioner being beneficiary under the Will, was entitled to the Probate. 8. PW2 Smt. Santosh has deposed that she is one of the witness to the last Will and testament of the Testatrix Smt. Kalawati. She is daughter-inlaw of the Testatrix. Will bears the thumb impression of the Testatrix. Will was witnessed by her and Shri Laxman. She had put her signature on the

Will as an attesting witness on 18th June, 1996. Testatrix was in sound disposing mind at the time of appending her thumb impression on the Will. She was present at the time when Testatrix had appended her thumb impression on the Will. Her husband Shri Laxman was also present at that time and had signed in her presence and in the presence of Testatrix. 9. Depositions of PW1 and PW2 have remained unchallenged as these witnesses have not been cross-examined by the respondents, inasmuch as, respondent nos. 2, 3 and LRs of respondent no. 4 have given No Objection to the grant of Probate to the petitioner. Respondent no. 5 has not filed any objections opposing the grant of Probate to the petitioner, despite the opportunities granted to him. From the evidence adduced by the petitioner, it is proved that the Testatrix had executed the Will dated 18th June, 1996 (Ex. PW1/1) and at that time she was in sound and disposing mind. 10. Section 222 of the Act envisages that Probate shall be granted only to the Executor appointed by the will. Sub-Section 2 of Section 222 of the Act further provides that the appointment may be expressed or by necessary implication. In the present case, no named Executor is there in the Will. It is also not the case of petitioner that Executor had been appointed by the Testatrix. If that is so, then Probate in respect of the Will Ex. PW1/1 cannot be granted. However, Section 228 of the Act envisages for grant of Letters of Administration with a copy of Will annexed in case Will has been proved and deposited in a Court of competent jurisdiction. Thus, in my view, Letters of Administration with a copy of Will annexed can be granted to the propounder of the Will. In this case, petitioner has propounded the Will and has proved the same, thus, Letters of Administration has to be granted to him. Accordingly, I do not find any impediment in granting Letters of Administration to the petitioner in respect of the Will dated 18th June, 1996. 11. In view of the above discussions, Letters of Administration with copy of Will annexed is granted in respect of Will dated 18th June, 1996 of Late Smt. Kalawati, in favour of the petitioner, subject to his paying requisite Court Fee and furnishing Administrative Bond with one surety to the satisfaction of Registrar General. 12. Petition is disposed of in the above terms.

Sd/A.K. PATHAK, J. MARCH 13, 2012