Delhi District Court
Smt. Kusum Sharma vs The State on 17 September, 2021
IN THE COURT OF MS. MANJUSHA WADHWA,
ADDITIONAL DISTRICT JUDGE 2, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
PC No. 02/2019
CNR NO. DLSH010005862019
Smt. Kusum Sharma
W/o Sh. Vinod Parkash
R/o 51A, Dayanand Vihar,
Delhi110092. .............Petitioner
Versus
1. The State
2. Sh. Vinod Parkash
S/o Sh. Sham Lal
R/o 51A Dayanand Vihar,
Delhi110092.
3. Smt. Narvda Rani
D/o Late Sh. Sham Lal
W/o Sh. Mangal Singh
R/o 8/5, Opposite Arya Samaj Mandir
Railway Road, Jind, Haryana.
4. Smt. Kamla Sharma
D/o Sh. Sham Lal
W/o Sh. J.C. Sharma
R/o F54B, Gali No. 12
Patel Park, Mangal Bazar
Laxmi Nagar, Delhi110092.
5. Smt. Sarla Sharma
D/o Late Sh. Sham Lal
PC no. 02/2019 Kusum Sharma V. State & ors. Page no. 1/11
W/o Sh. Mahesh Kumar
R/o 182, Near Dusshera Ground
New Colony, Gurgaon.
6. Smt. Malti Sharma
W/o Sh. Ashok Kumar Sharma
D/o Sh. Sham Lal
805, Friends Colony Society, Sector12
Vasundhra, Ghaziabad.
7. Smt. Shashi Sharma
W/o Late Sh. N.K.Sharma
(Widow daughterinlaw of Sh. Sham Lal)
1350, Waidwara, Chandni Chowk,
Delhi.
8. Monish Sharma
S/o Late Sh. N.K.Sharma
1350, Waidwara, Chandni Chowk,
Delhi.
9. Winter Sharma
D/o Late Sh. Sham Lal
W/o Sh. Amit Kumar Sharma
R/o F2, Mahadev Nagar
Gandhi Path, Vaishali Nagar
Jaipur, Rajasthan302021.
10. Sh. Krishnanand Sharma
(Husband of deceased Smt. Bimla Sharma)
D/o Late Sh. Sham Lal)
R/o F241, Mangal Bazar,
Laxmi Nagar, Delhi.
PC no. 02/2019 Kusum Sharma V. State & ors. Page no. 2/11
11. Sh. Sanjeev Shrma
S/o Sh. Krishnanand Sharma
R/o F241, Mangal Bazar
Laxmi Nagar, Delhi.
12. Smt. Chhaya Sharma
D/o Sh. Krishnanand Sharma
W/o Sh. Ashok Kumar
R/o F7B, 3rd floor, No. 15,
Near Tikona Park, Laxmi Nagar
Shakarpur Baramad, Shakarpur,
Gandhi Nagar, Delhi.
13. Smt. Seema Sharma
D/o Sh. Krishnanand Sharma
W/o Sh. Sanjay Sharma
R/o Type3/7, Press Colony
Mayapuri, opposite to Govt. Press
New Delhi, Mayapuri,
South West, Delhi.
14. Smt. Roopa
D/o Sh. Krishnanand Sharma
W/o Sh. Rajesh
R/o H. No. 399, Patti Pachhiya,
Jharsa, Gurgaon.
15. Smt. Meenakshi Sharma
D/o Sh.Krishnanand Sharma
W/o Sh. Rakesh Kumar Tiwari
R/o E586, Gali No. 10, Shanti Marg
West Vinod Nagar,
Shakarpur, Delhi.
At present at:
PC no. 02/2019 Kusum Sharma V. State & ors. Page no. 3/11
52, Jade Flower,
Irvine CA92620, USA.
16. Smt. Ritu Sharma
D/o Sh. Krishnanand Sharma
W/o Sh. Ashish Sharma
J147, Ground Floor, Mefil Garden
Near Nirwana
Sector51, Gurgaon, Haryana.
At present :
H. No. A56, Rose Wood City
Sector49, Gurugram122001.
.........Respondents.
Date of Institution : 23.01.2019
Judgement reserved on : 16.09.2021
Judgement passed on : 17.09.2021
JUDGMENT
1. The petitioner has filed the present petition under Section 276 of the Indian Succession Act 1925 for seeking probate of Will/Letter of Administration in respect of last Will dated 03.01.1997 of Late Sh.Sham Lal S/o Late Sh. Budh Ram.
2. Succinctly put, facts of the case as per the petition are that late Sh. Sham Lal had purchased the property bearing no. 51A, measuring 230.25 sq. yards, Dayanand Vihar, Delhi110051 from its erstwhile owner Sh PC no. 02/2019 Kusum Sharma V. State & ors. Page no. 4/11 O.P.Singla on the basis of agreement to sell and other title documents dated 17.01.1992, who was owner of the aforesaid property by virtue of perpetual lease deed dated 24.01.1985. It is further stated that after purchasing the suit property, Sh. Sham Lal had applied for conversion of the aforesaid property from lease hold to free hold and after completion of formalities, a registered Conveyance Deed was executed in favour of Sh. Sham Lal.
3. The petitioner has further stated that Sh. Sham Lal got sanctioned the site plan and raised construction over the aforesaid property. It is further stated that Sh Sham Lal had expired on 04.03.1997 and during his lifetime, he had executed a registered Will dated 03.01.1997 whereby he bequeathed aforesaid property measuring 230.25 sq. yards in favour of the petitioner alone and also appointed her as executor of the Will. It is further stated that the aforesaid Will is last Will and testament of deceased Sham Lal and same has been duly registered and attested by two witnesses namely Sh. Jagdish Chandra Sharma and an Advocate, who signed in presence of each other and also in presence of late Sh. Sham Lal. The petitioner further states that Sh. Sham Lal had signed the Will after understanding its contents in vernacular language in presence of aforesaid two witnesses and he was of sound disposing mind at that time. The petitioner further states that being the beneficiary as well as sole executor of the Will, she is entitled to obtain a letter of administration/probate in respect of the said Will.
4. The petitioner further claims that this Court has jurisdiction to try the present petition as Sh. Sham Lal has left behind the immovable property PC no. 02/2019 Kusum Sharma V. State & ors. Page no. 5/11 which is within the jurisdiction of this Court. The petitioner further averred that to the knowledge of the petitioner, no other similar application has been made in any other Court.
5. Notice of the petition was issued to the respondents. Citation of the present petition was also ordered to be published in the National Hindi daily newspaper, which was duly published in the newspaper "Veer Arjun" New Delhi, dated 06.05.2019.
6. Upon being served with notice, Sh. Shyampal, Kanungo from office of Tehsildar, Vivek Vihar, Shahdara filed valuation report whereby, net value of the aforesaid immovable property (51A, Dayanand Vihar, Delhi 110092 measuring 192.51 sq. meters) has been assessed as Rs.2,66,47,959.6/. The petitioner has not filed any objection to the valua tion report filed by the Tehsildar. On 09.07.2019, NOC was filed on behalf of all the respondents except respondent no. 1.
7. In order to prove the case, the petitioner has examined herself as PW2 and Ms. Kamla Sharma/respondent no. 4 as PW1. The Petitioner has filed her evidence by way of affidavit as Ex. PW2/A wherein she has reiterated the contents of the petition and has placed reliance upon the following documents as:
1. Copy of Conveyance Deed Ex. PW2/1;
2. Copy of assessment order issued by Dy. Assessor & Collector as Ex.
PC no. 02/2019 Kusum Sharma V. State & ors. Page no. 6/11 Ex.PW2/2 ;
3. Copy of death certificate of Sham Lal as Ex.PW2/3;
4. Will dated 03.0.1997 executed by Sh. Sham Lal as Ex.PW1/1 (exhibited in evidence of PW1)
8. PW1 Smt. Kamla Sharma has also filed her evidence by way of affidavit Ex.PW1/A wherein she deposed that deceased Sham Lal was her father and he was exclusive owner of the aforesaid property by virtue of conveyance deed executed by D.D.A on 30.10.1996. She further testified that Sh. Sham Lal had executed a Will Ex. PW1/1 during his lifetime on 03.01.1997 in favour of his daughterinlaw namely Smt. Kusum Sharma, which was drafted by Sh. Ramesh Vashist (Advocate) on the instruction of her father Sh. Sham Lal and her father had put his signature and thumb impression on the said Will in her presence. She further testified that her husband Sh. Jagdish Chandra Sharma and Advocate had put their signatures as an attesting witnesses on the Will in her presence. She has also testified that Sub Registrar had visited their house on 03.01.1997 along with his staff and in his presence, her father again put his signatures and thumb impression on the back side of the Will and she identified the same. During recording of examination in chief, she identified the signature of her father Sham Lal at point Z, signature of her deceased husband Sh. Jagdish Chandra Sharma at point 'X' and signature of advocate at point 'Y'.
9. Ld. Counsel for the Petitioner submitted that there is no impediment in grant of probate/letter of administration of Will dated PC no. 02/2019 Kusum Sharma V. State & ors. Page no. 7/11 03.01.1997 Ex PW1/1 of Late Sham Lal as respondent nos. 2 to 16 have given their no objection in this regard. He also urged that PW1 Smt. Kamla Sharma (daughter of late Sh. Sham Lal) has duly proved signatures of her deceased father and of her deceased husband Sh. Jagdish Chandra Sharma as well as signature of Advocate on the Will.
10. Heard learned counsel for petitioner and perused the record.
11. The present petition has been filed under section 276 of the Indian Succession Act, 1925 for grant of Probate/ Letter of Administration of last Will dated 03.01.1997 Ex PW1/1 of Late Sham Lal with respect to property bearing no. 51A, Dayanand Vihar, Delhi110092. This petition has not been contested by any public person despite publication of citation in the daily newspaper 'Veer Arjun' New Delhi dated 06.05.2019. Indeed, respondent no. 2 to 16 have given no objection to the grant of Probate/letter of Administration of Will dated 03.01.1997 Ex PW1/1 of Late Sham Lal with respect to aforesaid property. Vide aforesaid NOC, respondent nos. 2 to 16 have stated that Sh. Sham Lal was owner of the property bearing no. 51A, Dayanand Vihar, Delhi and that during his lifetime he had executed Will dated 03.01.1997 in favour of Ms. Kusum Sharma. They accepted signature of the testator and witnesses on the said Will as correct and gave their no objection to grant of probate/letter of administration in favour of Smt. Kusum Sharma.
12. In the instant petition, the petitioner has not examined any attesting witness. At the stage of final arguments, ld. Counsel for the petitioner has PC no. 02/2019 Kusum Sharma V. State & ors. Page no. 8/11 filed affidavit of the petitioner along with copy of death certificate of attesting witness Jagdish Chandra Sharma, as per which, he had died on 31.12.2012.
13. On 10.12.2020, this court while passing order on the application under order 26 read with section 151 CPC, recorded the submission of ld. Counsel for the petitioner that one of the attesting witness Sh. Jagdish Chandra Sharma has already died and name of second attesting witness, who is an advocate, is not legible. He sought permission to examine Smt. Kamla Sharma, wife of attesting witness Sh. Jagdish Chandra Sharma through local commissioner at her residence, which was allowed. As per section 69 of Indian Evidence Act, 1872, if no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
14. PW1 Smt. Kamla Sharma testified that the Will dated 03.01.1997 was not only drafted in her presence but also signed as well as attested in her presence. She has duly identified the signature of the testator Sh. Sham Lal on the Will at point 'Z', signature of attesting witness Sh. Jagdish Chandra Sharma at point 'X' and signature of another attesting witness Advocate at point 'Y'. She also deposed that late Sh. Sham Lal was of sound mind at the time of execution of Will.
15. The testimonies of PW1 Smt. Kamla Sharma and PW2/Petitioner remained unrebutted and unchallenged as the aforesaid witnesses have not PC no. 02/2019 Kusum Sharma V. State & ors. Page no. 9/11 been crossexamined by the respondents and rather the respondents gave their no objection in favour of the petitioner. Therefore, in view of the testimonies of PW1 and PW2 as well as no objection given by respondent nos. 2 to 16 coupled with documents proved on record, this court hereby holds that the petitioner has succeeded in proving her case.
16. As already stated hereinabove, the petitioner has sought Probate of Will dated 03.01.1997 Ex PW1/1 left by Late Sham Lal. However, as per Section 222 of Indian Succession Act, Probate certificate cannot be granted as the deceased testator has not specifically appointed any executor. In terms of Section 234 of Indian Succession Act, petitioner is entitled for grant of Letters of Administration. Same was submission of ld. Counsel for the Petitioner during the course of arguments and even in the prayer clause, grant of Letter of Administration in respect of immovable property i.e. property bearing no. 51A, Dayanand Vihar, Delhi110092 of the deceased testator Sh. Sham Lal has been sought.
17. In view of foregoing discussion, Letter of Administration with annexed Will dated 03.01.1997 Ex PW1/1 of Late Sham Lal in respect of aforesaid property be issued to the petitioner after obtaining requisite Court Fee and Administration bond for a sum of Rs.2,66,47,959.6/ (net value of immovable property as assessed by Tehsildar, Shahdara) with one surety of like amount. Further, the petitioner is directed to file inventory of estate of the deceased testator within six months and final statement of account within one year from the date of receipt of formal Letter of Administration. It is further clarified that question of title/ownership of the aforesaid PC no. 02/2019 Kusum Sharma V. State & ors. Page no. 10/11 property has not been decided by this court.
18. The formalities of issuance of Letter of Administration shall be completed by the petitioner within six months from the date of the judgment as per Section 291 read with Section 317 of Indian Succession Act.
Digitally signed File be consigned to record room. MANJUSHA
by MANJUSHA
WADHWA
WADHWA Date:
2021.09.17
16:56:58 +0530
(Manjusha Wadhwa)
Addl. District Judge2,
Shahdara, Karkardooma Courts,
Delhi:17.09.2021
(Announced through CISCO WEBEX APP)
PC no. 02/2019 Kusum Sharma V. State & ors. Page no. 11/11