Delhi District Court
Mrs. Dulari Raina vs State on 12 May, 2016
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 91/14
Unique ID Case No. - 02401C0519812014
1.Mrs. Dulari Raina
W/o Late Sh. M.L. Raina
R/o 152, Ambika Vihar, Paschim Vihar,
New Delhi 110087
2.Mrs. Kishni Raina
W/o Late Sh. C. L. Raina
R/o 152, Ambika Vihar,
Paschim Vihar,
New Delhi -110087.
3.Mr. Nalin Raina
S/o Late Sh. C. L. Raina
R/o 152, Ambika Vihar,
Paschim Vihar,
New Delhi -110087.
.........Petitioners
Versus
1.State
Through Chief Secretary
Government of th NCT of Delhi.
2.Mr. Sunil Raina
S/o Late Sh. C. L. Raina
R/o 152, Ambika Vihar,
Paschim Vihar,
New Delhi -110087
Presently at - 472,
Lingering Pine Dr Nw, Issaquah
WA 98027 .........Respondents
PC No. 91/14 Mrs. Dulari Raina & Ors Vs. State Page 1 of 8
Date of institution of the case : 20.10.2014
Date reserved for judgment on : 10.05.2016
Date of pronouncement of judgment : 10.05.2016
JUDGMENT:
1 A petition Under Section 276 of the Indian Succession Act 1925 for grant of Probate of the Will dated 24.11.1993 to the petitioner, being the beneficiaries under the aforesaid Will dated 24.11.1993 filed by petitioners.
2 In brief facts stated that petitioners are the beneficiaries under the Will dated 24.11.1993 duly executed by the Testator Late Hredy Nath Raina S/o Late Sh. Ragho Ram Raina (hereinafter referred to as deceased). The Will is duly registered vide document No. 47877 in Book No. 3 Volume No. 2090 on page no. 139-141 dated 24.11.1993 in the office of Sub-Registrar-II Delhi.
3 It is stated that testator was the sole and absolute owner/lessee with respect of property no. 152, Ambica Vihar,Paschim Vihar, New Delhi which was self acquired property built on DDA leasehold plot no. 152 on land admeasuring area 180 sq yards situated in the layout plan of the Ambica Co-operative Housing Building Society Ltd., New Delhi known as Ambica Vihar Paschim Vihar are G-17 situated in the area of village Nangloi Jat and Nangloi Syed, Delhi, property is the subject matter of the Will of deceased dated 24.11.1993.
4 It is stated that deceased testator was the sole and absolute owner above said property by being an allottee/lessee PC No. 91/14 Mrs. Dulari Raina & Ors Vs. State Page 2 of 8 by the D. D.A vide prepetual sub-lease deed duly registered as Document No. 3813, in Additional Book No.1, Vol. No. 3135 on pages 13-25 dated 17.07.1978 Sub-Registrar-II, New Delhi.
5 It is stated that deceased testator on 24.11.1993 duly executed the present Will under probate the Sub-Registrar, Delhi and affixed his signature to the Will in the presence of two witnesses namely Sh. G. C. Jetly S/o Sh. K. C. Jetly R/o R-46 Varun Vihar, New Delhi and Sh. A. K. Sharma Advocate. The deceased testator at the time of execution of the Will was residing at 152 Ambica Vihar Paschim Vihar, New Delhi 110087. The deceased testator expired on 03.02.2013 at New Delhi leaving behind The Will dated 24.11.1993 at the time of the death of the testator, deceased continued to reside at 152 Ambica Vihar, Paschim Vihar, New Delhi 110087 which was his permanent place of abode.
6 It is stated that as per Will dated 24.11.1993, deceased testator bequeathed his property in favour of his son Late Chaman Lal Raina and his daughter Smt. Dulari Raina and the same was to be divided amongst the two as per the wished of the deceased testator expressed in his last Will dated 24.11.1993.
7 It is stated that for grant of probate, one of the beneficiaries under the Will late Chaman Lal Raina expired on 30.10.2013 intestate, leaving behind his three legal heirs namely Mr. Sunil Raina (Son), Mr. Nalin Raina (Son) and Mrs. Kishni Raina Wife of late Chaman Lal Raina.
PC No. 91/14 Mrs. Dulari Raina & Ors Vs. State Page 3 of 88 It is stated that Will is the last Will and testament of the testator and it was made in his full senses and out of his own free Will and same was made by the deceased testator without any threat, coercion, fraud, undue influence or pressure and was duly executed before the Sub-Registrar, Delhi. Deceased testator at the time of making of the present Will, was sound mental as well as physical health and had sound understanding of facts. The Value of the property of the Will i.e. 152 Ambica Vihar, Paschim Vihar, New Delhi 110087 as per government valuation is Rs. 1,70,97,600/- only. Petitioners seeks probate of the Will dated 24.11.1993 duly registered vide Document No. 47877, Addl. Book No. 3 Volume no. 2090 on pages No. 139-141 dated 24.11.1993 to the petitioners who are beneficiaries under the Will.
9 Upon filing of the present petition, the notice of the same was issued to the respondents/all L.RS of deceased, State and Collector of the area. Citation for general public was published in daily newspaper ''The Statesman" dated 05.02.2015". Notice was also served to state through Chief Secretary. Respondent no.2 Mr. Sunil Raina has not filed his objection.
10 The valuation report in respect of property bearing no. 152 Ambika Vihar, Paschim Vihar, New Delhi 110087 was also called from the concerned Collector and accordingly, the said valuation report has been filed on behalf of the SDM Punjabi Bagh, New Delhi. The value of the said property has been assessed to the tune of Rs. 2,11,58,952/- (Rupees Two Crore Eleven Lakh Fifty Eight Thousand Nine Hundred Fifty Two Only).
PC No. 91/14 Mrs. Dulari Raina & Ors Vs. State Page 4 of 811 During the proceedings, petitioners filed application Under Order 26 Rule 11 CPC for appointment of Local Commissioner for recording evidence one of the attesting witness of the Will in question i.e. Sh. G. C. Jetly S/o Sh. K. C. Jetly R/o R-46 Varun Vihar New Delhi as he an old age person and suffering from various ailments that have rendered him bed ridden. Vide order dated 30.03.2016 Mr. Dhawal Jain, Advocate was appointed as Local Commissioner for recording statement of Sh. G. C. Jetly. Local Commissioner filed his report along with evidence of Sh. G. C. Jetly vide order dated 11.05.2016.
12 Petitioners in order to prove their case examined PW-1 Smt. Dulari Raina, PW-2 Smt. Kishni Raina, PW-3 Sh. Nalin Raina and PW-4 Sh. G. L. Jetly. Vide order dated 11.04.2016 petitioners evidence closed.
13 I have heard Sh. Advitye Tiwari counsel for petitioners and Sh. Tuhin counsel for respondent no. 2 and perused the record.
14 Petitioners in order to prove their case examined themselves. PW-1 Smt. Dulari Raina appeared in the witness box and proved her evidence by way of affidavit Ex. PW-1/A. She proved the original Will dated 24.11.1993 of deceased Sh. Hredy Nath Raina S/o Late Sh. Ragho Ram Raina and Will is duly registered vide document no. 47877 in Book No. 3, Volume No. 2090 on page 139-141 dated 24.11.1993 in the office of Sub- Registrar-II Delhi Ex. PW-1/1. She further proved death certificate deceased testator is Ex. PW-1/2. She further deposed that one the beneficiary has expired intestate namely Chaman Lal Raina S/o PC No. 91/14 Mrs. Dulari Raina & Ors Vs. State Page 5 of 8 Late Sh. Hredy Nath Raina his legal heirs i.e. his wife, two sons have been substituted in his place as according to the Hindu Law of Succession and she proved the death certificate of other beneficiary in the Will late Sh. Chaman Lal Raina Ex. PW-1/3.
15 PW-2 Smt. Kishni Raina appeared in the witness box and proved her evidence by way of affidavit Ex. PW-2/A. She further deposed that testator was the sole and absolute owner/lessee with respect of Property No. 152 Ambica Vihar, Paschim Vihar, new Delhi, which was self acquired property of deceased, dult on D.D.A leasehold Plot No. 152 on land measuring area 180 sq.yrds situated in the layout plan of the Ambica Co- operative Housing Building Society Ltd, New Delhi know as Ambica Vihar Paschim Vihar, area G-17 situated in the area of village Nangloi Jat and Nangloi Syed,Delhi, and property is the subject matter of the Will of deceased. She further deposed that the Will was witnessed by Sh. G. C. Jetly S/o Sh. K. C. Jetly R/o R-46 Vani Vihar, New Delhi and Sh. A. K. Sharma Advocate. She further deposed that deceased testator at the time of execution of the Will was residing at 152 Ambica Vihar, Paschim Vihar, New Delhi 110087.
16 PW-3 Sh. Nalin Raina also appeared in the witness box and proved his evidence vide affidavit Ex. PW-3/A. He deposed that I am the petitioner no. 3 and a beneficary under the Will Ex. PW-1/1 of deceased testator Late Sh. Hredy Nath Raina S/o Late Sh. Ragho Ram Raina. He deposed that deceased testator was the sole and absolute owner of property by being an allottee / lessee by the D.D.A vide prepetual Sub-lease deed duly registered as Document no. 3813, Additional Book No. 1 Vol. No. 3135, on pages PC No. 91/14 Mrs. Dulari Raina & Ors Vs. State Page 6 of 8 13-25 dated 17.17.1978 Sub-Registrar-II, New Delhi supplementary perpetual Sub-lease deed duly registered as document no. 6212, in Additional Book No. 1, Volume No. 3525, on pages 78-79 dated 28.12.1979 Sub-Registrar-II New Delhi.
17 PW-4 Sh. G.L Jetly deposed that he has seen the original Will dated 24.11.1993 Ex. PW-1/1 and it bears his signature at Point A. He deposed that he do remember that the deceased testator had affixed his signature in my presence on the aforesaid Will. He further deposed that deceased testator was in a sound and disposing state of mind at the time of putting his signatures on the Will in his presence and in the presence of the Sub-Registrar before whom the said Will was admitted. He further stated that deceased testator was not under any pressure or coercion at the time of making the Will and thereafter. Vide order dated 11.04.2016 petitioners evidence closed. The testimonies of petitioners remained unrebutted, uncontroverted and uncontested as Respondent no. 2 Sh. Sunil Raina has filed his no objection to the petition.
18 Thus, in view of above observation and discussion, in the present case, the petitioners have prayed for grant of Probate in respect of the Will of deceased Ex. PW-1/1 which reveals that petitioners have not been named as Executor therein and as such the probate in respect of the Will in question cannot be granted in favour of the petitioners in accordance with the provisions of Section-222 of Indian Succession Act, which provides that probate shall be granted only to an Executor appointed by the deceased testator in his Will. In these circumstances and in view of the provisions of Section-232 of Indian Succession Act, the petitioners PC No. 91/14 Mrs. Dulari Raina & Ors Vs. State Page 7 of 8 are jointly entitled only to Letter of Administration in respect of the property no. 152, built on D.D.A leasehold plot No. 152 on land measuring area 180 sq. yds., situated in the layout plan of the AMBICA CO-OPERATIVE HOUSE BUILDING SOCIETY LTD., NEW DELHI known as Ambica Vihar, Paschim Vihar area G-17 situated in the area of Village Nagloi Jat and Nagloi Syed, New Delhi after obtaining requisite Court fee and administration bond to the tune of Rs.2,11,58,952/- (Rupees Two Crore Eleven Lakh Fifty Eight Thousand Nine Hundred Fifty Two Only) as agreed by petitioners.
19 Further, petitioners are directed to file the inventory of above said property within six month and final statement of account within one year from the date of receipt of formal Letter of Administration.
20 It is further clarified that question of title, share and ownership of the property mentioned above is not decided by this court.
File be consigned to record room.
(Announced in the open (SANJAY KUMAR)
court on 10th May 2016 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 91/14 Mrs. Dulari Raina & Ors Vs. State Page 8 of 8