Delhi District Court
(Pc No.27/07) (Ashok Kumar vs . State & Ors.) on 28 August, 2008
(PC No.27/07) (Ashok Kumar vs. State & Ors.)
: 1:
IN THE COURT OF SHRI RAVINDER DUDEJA
ADDL. DISTRICT JUDGE: DELHI.
PC No. 27/2007
Date of institution : 13.3.2007
Date on which the judgment was reserved for : 28.8.2008
Sh. Ashok Kumar,
S/o Shri J.P. Sharma,
R/o D-643, Tigri, Khanpur,
New Delhi - 110 062.
............ Petitioner.
Versus
1. State.
2. Sh. Vijay Kumar,
S/o Shri J.P. Sharma,
R/o B-821, Tigri, Khanpur,
New Delhi - 110 062.
3. Smt. Geeta Sharma,
W/o Sh. Mukesh Sharma &
D/o Shri J.P. Sharma,
R/o 13/212, Geeta Colony,
Delhi - 110 032.
4. Smt. Usha Bharadwaj,
W/o Sh. Preetam Bharadwaj &
D/o Sh. J.P. Sharma,
R/o D-57, Gali No.23,
Bhajanpura (near Ostel Public School),
Delhi.
5. The Manager,
State Bank of India,
Chandni Chowk Branch,
Chandni Chowk,
Delhi.
............ Respondents.
JUDGMENT
(PC No.27/07) (Ashok Kumar vs. State & Ors.) : 2:
1. This is a petition for the grant of probate/ letter of administration under Section 276 of the Indian Succession Act. Briefly stated, the facts as stated in the petition are that Shri Surender Pal Sharma, son of late Sh. Gyan Chand Sharma, died on 19.12.2006. He was employed with State Bank of India. He took voluntary retirement. The retiral benefits were due and payable but unfortunately he died before the claim for the same could be settled. During his life time, Shri Surender Pal Sharma executed a Will dated 11.11.2006, which was got registered on 13.11.2006. Petitioner is the nephew being the son of the real brother of the deceased. The names of the other legal heirs have been mentioned in Schedule - I of the petition. By virtue of his Will, the deceased bequeathed his terminal dues i.e. provident fund and gratuity etc. as also the money lying to his credit in saving account with State Bank of India to the petitioner.
2. Citation was published in newspaper 'National Herald', but no one appeared from general public to file any objection. Notice of the petition was given to the respondents. Respondents appeared and filed the objections. Respondent No.2 took the objections that he was appointed as nominee by the deceased and is, therefore, entitled to receive the funds of late Shri Surender Pal Sharma. It has been stated that the deceased was physically and mentally unfit and for this reason he took voluntary retirement from the service. He was not in a position (PC No.27/07) (Ashok Kumar vs. State & Ors.) : 3: to understand right or wrong. It is stated that the Will dated 11.11.2006 was got executed by force and fraud as Shri Surender Pal Singh was not in a position to understand the contents of the Will. In her objections, respondent no.3 stated that the deceased was lying ill due to Cancer since long back. On 29.4.2006 his condition became serious and was admitted to Batra Hospital where he remained till his death. She has stated that the deceased was confined to bed due to his illness. It is also stated that the deceased was unable to identify any person during last one and a half months and was not having sound mind. She has also stated that respondent no.2 is the nominee of the deceased. It is further stated that the petitioner and his wife did not serve the deceased and that the signatures on the Will are the forged signatures of the deceased. Respondent No. 4 also took similar objections.
3. Petitioner filed rejoinders to the objections. He reiterated the averments made in the petition. He stated that the deceased wrote to the bank to change the nomination in favour of the petitioner. It is submitted that nomination made had become legally ineffective after the retirement of the testator from the service of respondent no. 5. Even otherwise, the nominee under the law is only entitled to receive the money in trust on behalf of the real owner. Petitioner submitted that the deceased was suffering from Cancer and was under treatment but stated that he was having sound mind.
(PC No.27/07) (Ashok Kumar vs. State & Ors.) : 4:
4. State Bank of India (Respondent No.5) filed reply stating that the deceased nominated Shri Vijay Kumar as nominee for drawing the provident fund and had constituted Shri Ashok Kumar Sharma, the present petitioner, as nominee for the payment of gratuity amount. Respondent No. 5 gave the details of dues after adjusting the festival advance and the overdraft facility availed by the deceased.
5. On completion of pleadings of the parties, following issues were framed by the court vide order dated 5.7.2007 :
(1) Whether the Will dtd. 11.11.06 propounded by the petitioner is the duly executed last and final will of Late Sh. Surender Pal Sharma in sound disposing mind? OPP.
(2) Relief.
6. In order to prove his case, the petitioner tendered in evidence his duly sworn affidavit Ex.P1, wherein he made averments with regard to the facts stated in the petition.
7. The attesting witnesses Narender Kumar and Vijay Kumar Gupta have been examined as PW2 & PW3 respectively. They tendered their affidavits in evidence.
(PC No.27/07) (Ashok Kumar vs. State & Ors.) : 5:
8. PW4 is Shri Sanjay Rawat, UDC from the office of Sub Registrar-V, Mehrauli. He proved the registration of the Will.
9. During the proceedings of the case, a compromise took place between the parties. They filed compromise deed Ex.PA. As per compromise, the respondents withdrew their objections.
10. I have heard the learned Counsel of petitioner. My issue- wise findings are as under.
ISSUE NO. 1
11. It is a settled law that the Will has to be proved by the propounder in conformity with Section 63 (c) of the Indian Succession Act. The learned Counsel of petitioner has argued that the deceased was a bachelor and died issueless and that the petitioner and respondents named in the petition are his only surviving legal heirs. PW2 Narender Kumar has stated that he was personally present both at the time of execution of the Will on 11.11.2006 and its registration on 13.11.2006. He stated that he had attested the Will at the request of the testator in his presence alongwith other attesting witness Vijay Kumar Gupta at his residence at about 7.30 p.m. on 11.11.2006. He further stated that the testator had affixed his signatures on the Will in his presence and that at that time he was in sound disposing state of (PC No.27/07) (Ashok Kumar vs. State & Ors.) : 6: mind. According to him, the signatures were put on the Will voluntarily, without any pressure or favour. He identified the signatures of the testator at point A, his own signature at point B and the signature of other attesting witness Sh. Vijay Kumar Gupta at point C. The affidavit of PW2 has been corroborated by the affidavit of Shri Vijay Kumar Gupta, whose affidavit is also more or less with the same averments. He also identified the signatures of the testator, his own signature and that of other attesting witness Shri Narender Kumar on the Will Ex.PW1/1A. There is no cross examination of the attesting witnesses. Their affidavits/ testimonies have remained unchallenged. The petitioner in his cross examination has admitted that the deceased was suffering from Cancer, but denied that his mental condition was not good since one month before his death. He stated that the Will was drafted at the instructions of his uncle. He noted the instructions from his uncle and later got them typed from his advocate. As already discussed, the respondents have already withdrawn their objections. There is no suspicious circumstance surrounding the execution of the Will Ex.PW1/1A, which has been duly proved by the two attesting witnesses. Issue No.1 is, therefore, decided in favour of the petitioner. ISSUE NO.2 (RELIEF)
12. No one has been named as executor of the Will. Petitioner being the legatee is entitled to the grant of letter of administration.
(PC No.27/07) (Ashok Kumar vs. State & Ors.) : 7: Petition is accordingly allowed. Letter of administration with copy of Will Ex.PW1/1A annexed thereto be issued in favour of the petitioner for due administration of the property mentioned in the Will subject to filing the requisite court fee and administration bond with surety. File be consigned to Record Room.
Announced in open (RAVINDER DUDEJA)
Court on 28.8.2008 ADDL. DISTRICT JUDGE:
DELHI.