Delhi District Court
Shri Nishant Tyagi vs . State & Ors. on 19 February, 2016
Shri Nishant Tyagi vs. State & Ors.
In the Court of Additional District Judge02, South District, Saket Courts
Complex, Room No. 602, 6th Floor, New Delhi
In the matter of :
PC No. 01/2015
Unique No. 02406C0000762015
Date of filing of Petition: 03.01.2015
Date of Institution : 05.01.2015
Decision reserved on : 01.02.2016
Date of decision: 19.02.2016
Shri Nishant Tyagi, S/o Shri Rakesh Tyagi
R/o MS27, Ringaliya Hightech, Shipra Suncity,
Indirapuram, Ghaziabad, UP.
... Petitioner
Versus
1. The State, Govt. of NCT of Delhi, Delhi.
2. Shri Asheesh Portar, S/o Late Anup Bazel Portar,
74A, Shipra Sun City, Indirapuram, Ghaziabad, UP.
3. Ms. Swati Portar, D/o Late Anup Bazel Portar,
(Address not known)
Previously r/o 74A, Shipra Sun City, Indirapuram,
Ghaziabad, UP.
... Respondents
PC No. 01/2015 Page 1 of 8
Shri Nishant Tyagi vs. State & Ors.
JUDGMENT
(on Petition under section 276/278 of Indian Succession Act, 1925 for grant of Letters of Administration of Will dated 02.04.2012 of Shri Anup Bazel Portar) Status of Parties 1.1 Shri Anup Bazel Portar, son of Late J.W Porter, was ordinary resident at H127, Sector11, Pratap Vihar, Municipal Authority, Ghaziabad, where he breathed last on 22.05.2013 (his death certificate is now Ex. PW1/1, briefly referred as the deceased). Shri Anup Bazel Portar's wife Smt. Sushma Portar predeceased him, she died on 22.01.2011.
1.2 The deceased left behind his two ClassI legal heirs, namely the respondent no. 2 Shri Asheesh Portar (son) and the respondent no. 3 Ms. Swati Portar (daughter), as detailed in list of ClassI legal heirs to the petition. There is no other legal heirs except them. The respondent no. 3's whereabouts are not known, she used to reside and last resided at the address mentioned in array of respondents. 1.3 The deceased Anup Bazel Portar was having good and cordial relations with the petitioner Shri Nishant Tyagi and petitioner used to help the deceased in every aspect of life including financially and PC No. 01/2015 Page 2 of 8 Shri Nishant Tyagi vs. State & Ors.
socially, he was very much pleased with the petitioner. Estate of Deceased 2.1 Shri Anup Bazel, during her lifetime acquired an immovable property bearing No. H48B, Ground Floor, SFS, Saket, New Delhi (96 sq. yards in the area) (hereinafter referred as estate of deceased). He also wrote his last testament and registered Will dated 02.04.2012 vide document no. 264, book no.3, Vol. 178, pages 277284, registered with SubRegistrar Ghaziabad, UP, (its certified copy is now Ex. PW2/1, earlier Mark B/PW1), which he executed in the presence of two attesting witnesses (namely Shri Manoj Tyagi and Shri Amit}, whereby he bequeathed his estate in favour of petitioner Shri Nishant Tyagi. He subscribed the Will while possessing sound state of mind, without any force or pressure.
2.3 The subject property/estate is located within the territorial jurisdiction of this Court. That is why, this present petition for Letters of Administration with registered Will in respect of estate of deceased, there is no other similar petition has been filed. The petitioner is entitled for Letters of Administration.
PC No. 01/2015 Page 3 of 8 Shri Nishant Tyagi vs. State & Ors.
3.1 The citation was issued and published for general public in the Dainik Jagran (Delhi & UP Edition) dated 19.3.2015 and also at Court Complex Saket and office of District Magistrate, Delhi, besides citation was sent to the area Sub Divisional Magistrate and no person from the general public / State participated in the proceedings. However, the Collector has furnished valuation report of the property/estate, now matter of record.
3.2 The citations were also issued to respondents no. 2 , he was served and once he appeared (his signature was obtained on the margin of proceedings dated 31.3.2015) but no reply was filed by him. The citation was also issued to respondent no.3 at her last known address, as her latest whereabouts were not known to the petitioner. The citation was also affixed at the last known address of respondent no.3 and also at the address of property/estate). But no appearance was caused by her or on her behalf.
3.3 Since it was a noncontentious matter, consequently, the petitioner was asked to lead evidence.
PC No. 01/2015 Page 4 of 8 Shri Nishant Tyagi vs. State & Ors.
Evidence
4. In order to establish the case, the petitioner Shri Nishant Tyagi himself appeared into the witness box (as PW1) and he also got examined one more witness, PW2 Shri Amit Kaushik, who is an attesting witness to the Will (Ex. PW2/1) to establish that he is one of the two attesting witnesses. The petitioner also called official from the Office of SubRegistrar, Ghaziabad, UP and Mr. Toshk Rajput, Registration Clerk, appeared with official record of Will, which was produced during statement of PW1 and PW2. PW1 also deposed that the original Will was lost by him, for which police report dated 25.1.2014 (MarkA/PW1) was lodged with police station Vijay Nagar, Ghaziabad. Then, petitioner's evidence was closed.
Final Hearing
5. The case came for final hearing and Shri Rohit Goel, Advocate for petitioner presented final submissions, while reiterating the case that there is nothing which may rebut the oral and documentary evidence proved by the petitioner and he has succeeded to prove the petition and he is entitled for letters of administration. There was no opposition by respondent no.2, who is ClassI legal heir of deceased. It is PC No. 01/2015 Page 5 of 8 Shri Nishant Tyagi vs. State & Ors.
registered Will in favour of the petitioner, a sole beneficiary and the original will was lost, for which police report was lodged and officials from the Office of SubRegistrar, Ghaziabad, had produced the official record pertaining to registration of Will.
Findings 6.1 The contentions are considered and assessed, in the light of features of the case and statutory provisions of law of the Indian Succession Act 1925 and the Indian Evidence Act 1872. Petitioner / PW1 has deposed on the lines of petition, while reiterating the facts and documentary record, which has already been narrated in paragraphs 1 and 2, above.
6.2 There are three respondents, however, no one came from the general public / State or joined the proceedings, therefore, it is a non contentious matter so far general public is concerned. Respondents no. 2 has not filed any reply to oppose the petition. The respondent no.3 has also not appeared despite publication of citation at known addresses. Consequently, it become a noncontentious matter. 6.3 Petitioner has stepped into the witness box and he also got PC No. 01/2015 Page 6 of 8 Shri Nishant Tyagi vs. State & Ors.
examined PW2, being attesting witnesses to the Will, who deposed that Shri Anup Bazel Portar had signed the Will in his presence, he also identified his signatures at points S1 to S10 on the Will, besides his own signatures at points X1 to X4. Moreover, the Will is carrying photographs, PW2 also identified his photographs at point P4 and P5 and photographs of Mr. Anup Bazel Portar at point P1 to P3. During statement of petitioner and PW2 the official record of Will was also produced.
The requirement of Section 63 of the Indian Succession Act, 1925 is that the Will ought to be subscribed by the two witnesses and Section 68 of the Indian Evidence Act make it mandatory that at least one of the attesting witnesses shall prove it by deposing in the Court. There are two witnesses in the Will and one of them, PW2 namely Shri Amit Kaushik appeared and deposed, consequently, the petitioner has succeeded to establish the Will (which is Ex. PW2/1). The testimony of PW1 with regard to sound state of mind of deceased or his demise also remained unchallenged.
7. In view of the above, the petition for Letters of Administration is allowed (in respect of immovable property/estate in PC No. 01/2015 Page 7 of 8 Shri Nishant Tyagi vs. State & Ors.
Delhi), however, the Letters of Administration will be issued with copy of Will (Ex PW2/A) annexed on the prescribed form but it would be subject to - (i) filing of proper court fee; (ii) his furnishing administration Bond, both of them could be filed within a period of one and a half month from today; visavis subsequently, (iii) he will furnish full and true inventory of the said property and credits and exhibit the same in the Court within six months from the date of grant of Certificate on prescribed Form No. 178 and; (iv) to render true account of said property and credits within one year on prescribed Form No. 179. However, grant of letters of administration would not tantamount to declaration of title of property/ estate. Lastly, the certified copy of Will filed would remain part of the judicial file and it will not be returned to the petitioner.
Accordingly, the petition stands disposed off.
File be consigned to record room.
Announced in the open Court today (Inder Jeet Singh) Shukarvar Magha 30, Saka 1937 Additional District Judge02 (South), Saket, New Delhi / 19.02.2016 PC No. 01/2015 Page 8 of 8 Shri Nishant Tyagi vs. State & Ors.
PC No. 01/2015
19.02.2016
Present : Proxy Counsel for petitioner.
None for State / general public / respondent no. 1. None for respondent no. 2.
None for respondent no. 3.
Vide separate judgment announced today, the petition for Letters of Administration is allowed (in respect of immovable property/estate in Delhi), however, the Letters of Administration will be issued with copy of Will (Ex PW2/A) annexed on the prescribed form but it would be subject to - (i) filing of proper court fee; (ii) his furnishing administration Bond, both of them could be filed within a period of one and a half month from today; visavis subsequently,
(iii) he will furnish full and true inventory of the said property and credits and exhibit the same in the Court within six months from the date of grant of Certificate on prescribed Form No. 178 and; (iv) to render true account of said property and credits within one year on prescribed Form No. 179. However, grant of letters of administration would not tantamount to declaration of title of property/estate. Lastly, the certified copy of Will filed would remain part of the judicial file and it will not be returned to the petitioner.
Accordingly, the petition stands disposed off.
File be consigned to record room.
(Inder Jeet Singh)
ADJ02 (South), Saket
N New Delhi / 19.02.2016
PC No. 01/2015 Page 9 of 8