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Delhi District Court

Also At: Flat No. 40/144 vs State (Govt. Of Nct Of Delhi) on 24 February, 2023

     IN THE COURT OF ADJ­07, SOUTH­EAST DISTRICT, SAKET COURTS,
                                DELHI

Presided By : Sh. Jay Thareja, DHJS

Probate Case No: 40/22

Smt. Rekha Kumari
W/o. Sh. Bipin Bihari Sharan
R/o. Flat No. 301, Radha Residency,
Ashkok Nagar, Near Ramdev Mandir,
Kankarbagh, Sampathak, Patna, Bihar­800020.

Also at: Flat No. 40/144, 1st Floor,
Chittranjan Park, Delhi.                                                        ...Petitioner
                                            Versus
State (Govt. of NCT of Delhi)
Through its Chief Secretary,
Delhi Secretariat,
I. P. Estate, New Delhi­110002.                                                 ...Respondent

     PETITION FOR GRANT OF PROBATE/LETTERS OF ADMINISTRATION
       UNDER SECTION 276 OF THE INDIAN SUCCESSION ACT, 1925

                                          DATE OF INSTITUTION : 13.05.2022
                              DATE OF RESERVING FOR JUDGMENT : 07.02.2023
                                             DATE OF DECISION : 24.02.2023

                                         JUDGMENT

1. The petitioner has filed this petition for grant of probate qua the unregistered Will dated 02.11.2020 of Late Smt. Sudha Saran. 1 1 This petition has been duly verified by Sh. Alok Kumar, an attesting witness to the unregistered PC No.40/22 Smt. Rekha Kumari v State Page No.1 of 7

2. In this petition, it is inter­alia pleaded that by virtue of the registered sale deed dated 30.10.2009, Late Smt. Sudha Saran had purchased the first floor of property no. 40/144, Chittranjan Park, EPDP Colony, Delhi; that Late Smt. Sudha Saran was married to Late Sh. Kunj Bihari Saran; that Late Smt. Sudha Saran and Late Sh. Kunj Bihari Saran had no children; that after the death of Late Sh. Kunj Bihari Saran, on 12.06.2014, Late Smt. Sudha Saran was residing with the petitioner and her husband at the first floor of property no. 40/144, Chittranjan Park, EPDP Colony, Delhi; that the petitioner is related to Late Smt. Sudha Saran as she is the daughter­in­law of the brother­in­law of Late Smt. Sudha Saran; that on account of the love and affection towards the petitioner, Late Smt. Sudha Saran had voluntarily executed her last and final testament viz. the unregistered Will dated 02.11.2020 in favour of the petitioner, in the presence of two witnesses viz. Sh. Alok Kumar and Sh. Rajesh Kumar; that although, Late Smt. Sudha Saran had died on 22.02.2022 at Flat No. 301, Radha Residency, Ashok Nagar, Near Ramdev Mandir, Kanka Bagh, Patna, Bihar, her fixed place of residence was the first floor of property no. 40/144, Chittranjan Park, EPDP Colony, Delhi; that the petitioner is in possession of all the title documents qua the first floor of property no. 40/144, Chittranjan Park, EPDP Colony, Delhi; that there exists absolutely no impediment for this Court to grant the requisite probate in favour of the petitioner and that in such circumstances, this Court should grant the requisite probate in favour of the petitioner.

Will dated 02.11.2020 of Late Smt. Sudha Saran, as per Section 281 of the Indian Succession Act, 1925.

Smt. Rekha Kumari v State Page No.2 of 7

3. The record of the Court file shows that upon filing of this petition, notice of this petition was directed to be issued qua the sole respondent, State (Govt. of NCT of Delhi) and the citation of this petition was directed to be published in two newspapers viz. 'The Statesman' and 'Veer Arjun; that in pursuance of the said directions, notice of this petition was served upon the sole respondent, State (Govt. of NCT of Delhi), on 20.06.2022 and the citation of this petition was published in the newspaper, 'The Statesman', on 23.06.2022 and in the newspaper, 'Veer Arjun', on 26.06.2022 and that in response thereto, neither the sole respondent, State (Govt. of NCT of Delhi) nor any public person had come forward to offer any objection(s) qua grant of the requisite probate to the petitioner.

4. Also, the record of the Court file shows that during the proceedings conducted as per Section 283 of the Indian Succession Act, 1925, two persons were examined by this Court viz. PW1 Sh. Alok Kumar and PW2 Smt. Rekha Kumari.2

5. During his testimony, PW1 Sh. Alok Kumar, an attesting witness to the original unregistered Will dated 02.11.2020 of Late Smt. Sudha Saran, had inter­alia deposed that he is a builder by profession; that he knew, Late Smt. Sudha Saran as a family friend, from Patna; that since the past 50 years, his family has been residing at H.No. 8, Ashok Nagar, Road No. 10, Kankar Bagh 2 On 20.10.2022, the petitioner had sought examination of one more person viz. Sh. Rajesh Kumar. But on 13.12.2022, the petitioner had informed that since, Sh. Rajesh Kumar had expired, on 28.11.2022, he cannot be examined by this Court.

Smt. Rekha Kumari v State Page No.3 of 7 Colony, Patna­800020 and the family of husband of Late Smt. Sudha Saran has been residing at Road No. 7 or 8, Ashok Nagar, Kankar Bagh Colony, Patna­ 800020; that his father, Late Sh. Bijay Kumar Sinha was a good friend of the husband of Late Smt. Sudha Saran; that he knew the husband of Late Smt. Sudha Saran as "Saran Uncle"; that as per his knowledge, Late Smt. Sudha Saran did not have any children; that he knows that "Saran Uncle" had two brothers viz. Sh. Tripurari Saran and Sh. Shyam Bihari Saran; that the unregistered Will dated 02.11.2020 of Late Smt. Sudha Saran, Ex.PW1/1 was executed, when he was residing at H. No. 222, Manhattan­11, Mahagun Modern Society, Sector­78, Noida; that the said Will bears his signatures at point X and the thumb impressions of Late Smt. Sudha Saran at point A and B; that the said thumb impressions were affixed in his presence; that at the time of execution of the unregistered Will dated 02.11.2020, Ex.PW1/1, Late Smt. Sudha Saran was ill for 3­4 years; that at the time of execution of the unregistered Will dated 02.11.2020, Ex.PW1/1, Late Smt. Sudha Saran was almost 75 years old and bed­ridden; that at the time of execution of the unregistered Will dated 02.11.2020, Ex.PW1/1, Late Smt. Sudha Saran was residing with the petitioner and her husband, Sh. Vipin Saran; that he knows Sh. Rajesh Kumar, the other attesting witness of the unregistered Will dated 02.11.2020, Ex.PW1/1; that the said Sh. Rajesh Kumar is a friend of Sh. Vipin Saran, husband of the petitioner and that the said Sh. Rajesh Kumar had not affixed his signatures on the unregistered Will dated 02.11.2020, Ex.PW1/1, in his presence. Upon a specific question being posed by this Court, PW1 Sh. Alok Kumar had further deposed that he is not aware of any circumstance which will make the unregistered Will PC No.40/22 Smt. Rekha Kumari v State Page No.4 of 7 dated 02.11.2020, Ex.PW1/1, suspect/questionable and that as per his knowledge, Late Smt. Sudha Saran as well as the Saran family, are well of and there is no dispute in the family of Late Smt. Sudha Saran. In order to establish his identity, PW1 Sh. Alok Kumar had tendered in evidence his passport, Ex.PW1/A(OSR).

6. During her testimony, the petitioner viz. PW2 Smt. Rekha Kumari, had deposed in line with the contents of his petition and inter­alia relied upon aadhar card, Ex.PW2/1(OSR), death certificate of Ms. Sudha Saran, Ex.PW2/2(OSR), unregistered Will dated 02.11.2020, Ex.PW1/1, death certificate of Late Sh. Kunj Bihari Saran, Ex.PW2/4(OSR), registered sale deed, Ex.PW2/5(OSR), GPA dated 10.12.1993 and agreement to sell and purchase dated 10.12.1993, Ex.PW2/6(OSR) (7 pages), medical reports of deceased Smt. Sudha Saran, Mark PW2/7(colly) (11 pages), aadhar card, voter card & PAN card, Ex.PW2/8(OSR) (3 pages) and conveyance deed dated 26.03.2001, Mark PW2/9.

7. In order to finally adjudicate upon this petition, I had heard Sh. Nishant Singh, Ld. Advocate for the petitioner, on 07.02.2023. During the hearing, the Ld. Advocate for the petitioner had submitted that in view of the unchallenged testimonies of PW1 Sh. Alok Kumar and PW2 Smt. Rekha Kumari and the non­appearance of the sole respondent, State (Govt. of NCT of Delhi) or any public person to object to the grant of the requisite probate to the petitioner qua the unregistered Will dated 02.11.2020 of Late Smt. Sudha Saran, this Court PC No.40/22 Smt. Rekha Kumari v State Page No.5 of 7 should grant the requisite probate to the petitioner.

8. After considering the submission made by the Ld. Advocate for the petitioners, on 07.02.2023 and perusing the record of the Court file, I find that the unchallenged testimonies of PW1 Sh. Alok Kumar and PW2 Smt. Rekha Kumari particularly the testimony of PW1 Sh. Alok Kumar, clearly establish that the unregistered Will dated 02.11.2020, Ex.PW1/1, is the last and final testimony/Will of Late Smt. Sudha Saran and that it was executed by Late Smt. Sudha Saran out of her free will and with sound disposition of mind. 3 In light of this finding and in light of the fact that neither the sole respondent, State (Govt. of NCT of Delhi) nor any public person has come forward to object to the grant of the probate to the petitioner, on the strength of the unregistered Will dated 02.11.2020, Ex.PW1/1 of Late Smt. Sudha Saran, this petition is allowed and it is directed that in view of Section 222 of the Indian Succession Act, 1925, probate qua unregistered Will dated 02.11.2020, Ex.PW1/1 of Late Smt. Sudha Saran along with copy of the unregistered Will dated 02.11.2020, Ex.PW1/1 of Late Smt. Sudha Saran shall be issued to the petitioner, as per Section 289 of the Indian Succession Act, 1925 upon furnishing of requisite court­fees, administration bond 3 The testimony of PW1 Sh. Alok Kumar to the effect that at the time of execution of the unregistered Will dated 02.11.2020, Ex.PW1/1, Late Smt. Sudha Saran was 75 years old, bed­ ridden and ill for 3­4 years, had caused some apprehension in my mind that the unregistered Will dated 02.11.2020, Ex.PW1/1, is suspicious/questionable but in view of (a) the fact that Late Smt. Sudha Saran had ultimately died, on 22.02.2022 in Patna, Bihar (presumably away from the influence of the petitioner and her husband, Sh. Vipin Saran) without lodging any protest qua the unregistered Will dated 02.11.2020, Ex.PW1/1, (b) the fact that the petitioner is in possession of all the original documents in respect of the first floor of property no. 40/144, Chittranjan Park, EPDP Colony, Delhi and (c) the fact that the medical reports of Late Smt. Sudha Saran, Ex.PW2/7, do not reflect that she was in a position to execute the unregistered Will dated 02.11.2020, Ex.PW1/1, the said suspicion/question has obviated.

Smt. Rekha Kumari v State Page No.6 of 7 and surety bond by the petitioner, as per the provisions of the Court­fees Act, 1870 and Indian Succession Act, 1925.

9. Before parting with this judgment, it is clarified that during the proceedings of this petition, this Court has not examined the issue of ownership of first floor of property no. 40/144, Chittranjan Park, EPDP Colony, Delhi by Late Smt. Sudha Saran and that till, the petitioner does not furnish the requisite court­ fees, administration bond and surety bond and obtains the probate, duly signed and sealed by this Court, as per Section 289 of the Indian Succession Act, 1925, this judgment shall not be read as proof of grant of the requisite probate to the petitioner. Also, before parting with this judgment, it is clarified that while passing it, this Court has been guided by the judgment of the Hon'ble High Court of Delhi in A. K. Sabharwal v State & Anr., (2012) 188 DLT 789 and the judgment of the Hon'ble Supreme Court in Niranjan Umesh Chandra Joshi v Mrudula Jyoti Rao, (2006) 13 SCC 433 quoted with approval by the Hon'ble High Court of Delhi in Surender Rode v Madan Mohan Rode & Ors., MANU/DE/3839/2013.

10. After completion of the necessary formalities by the petitioner and the Ahlmad, the file shall be consigned to the record room.

                                                      JAY     by JAY THAREJA
                                                      THAREJA Date: 2023.02.24
                                                              16:07:22 +0530

Announced in open Court                           (Jay Thareja)
today on 24.02.2023                      Ld. ADJ­07, South East District,
                                               Saket Courts/Delhi




PC No.40/22
Smt. Rekha Kumari v State
Page No.7 of 7