Delhi District Court
Sh. Anil Kumar Moria vs The State on 11 December, 2014
1
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. DISTRICT JUDGE
(WEST)02, TIS HAZARI COURTS:DELHI
Probate Case No. 172/2010
Unique ID Case No. 02401C0495012010
Sh. Anil Kumar Moria
S/o late Sh. O.P. Moria
R/o Plot No. 14,
Block V, Rajouri Garden
New Delhi110027 ... Petitioner
Vs.
1. The State
2. Sh. Alok Saxena
52B, Pocket J/A,
LIG Flats, G8,
Rajouri Garden,
New Delhi110064
3. Sh. Rahul Saxena @ Pulkit Saxena
S/o late Mrs. Ameeta Saxena
(W/o Sh. Sunil Saxena)
42D, Pocket J/C,
LIG Flats, G8,
Rajouri Garden,
New Delhi110064
4. Sh. Parikshit
S/o late Mrs. Ameeta Saxena
(W/o Sh. Sunil Saxena)
PC No. 172/2010 1/12
2
42D, Pocket J/C,
LIG Flats, G8,
Rajouri Garden,
New Delhi110064
5. Sh. Sunil Saxena
R/o 42D, LIG Flats,
Rajouri Garden,
New Delhi.
6. Mrs. Achla Maurya
W/o Sh. Hemank Maurya
H. No. 263, Pocket IV
Sector12, Shubham Apartments,
Dwarka, New Delhi. ... Respondents
Date of institution of the case 30.10.2010
Date on which, judgment have been reserved 25.11.2014
Date of pronouncement of judgment 11.12.2014
JUDGMENT:
The present petition u/s 276 of Indian Succession Act for grant of Probate/ Letter of Administration in respect of the Will dated 07.03.2009 executed by deceased Sh. O.P. Moria has been filed on behalf of the petitioner.
2. Brief facts as made out from the petition are that the father of the petitioner namely Sh. O.P. Moria son of late Sh. Din Dayal was the owner of the property bearing No.V14, Rajouri Garden, New Delhi110027 and he died on PC No. 172/2010 2/12 3 26.09.2009. It is further stated that the petitioner and respondent no. 2 are the sons and respondent no. 6 is the daughter of deceased Sh. O.P. Moria and respondent nos. 3 & 4 are the grand children of deceased Sh. O.P. Moria i.e. children of his deceased daughter late Smt. Ameeta Saxena wife of respondent no.5 Sh. Sunil Saxena and there is no other legal heir or survivor of the deceased except the petitioner and respondents mentioned above. It is stated that late Sh. O.P. Moria had executed a Will dated 07.03.2009 during his life time bequeathing terrace of the first floor upto sky level and the vertical division of the ground floor of property bearing No. V14, Rajouri Garden, New Delhi as described in the Will dated 07.03.2009 in favour of the petitioner and the said Will dated 07.03.2009 was duly executed by him, while he was having good health and was of sound mind. It is further stated that the petitioner is owner of the property bearing No. V14, Rajouri Garden, New Delhi110027 by virtue of the above said Will. It is also stated that deceased Sh.O.P. Moria was a permanent resident of Delhi and there is no impediment to grant of the Probate of the said Will and it has been prayed that Probate in respect of the above said Will dated 07.03.2009 executed by deceased father of the petitioner namely Sh. O.P. Moria may be granted in favour of the petitioner herein.
3. Upon filing of the present petition, the notices of the same were issued to respondents and accordingly the respondents entered their appearance.
In the instant case, citation for general public was ordered to be got published in daily newspaper 'The Statesman' and accordingly, the said citation for PC No. 172/2010 3/12 4 general public was published in newspaper 'The Statesman' on 22.08.2011 circulated in Delhi. It is pertinent to note that objections have not been filed on behalf of general public in this case.
Further, the valuation report in respect of the immovable property in question bearing No. V14, Rajouri Garden, New Delhi27 was also called from the concerned Collector and accordingly, the said valuation report has been filed on behalf of the Tehsildar (Rajouri Garden) and the value of the said property has been assessed to the tune of Rs.73,18,133/.
4. Written statement has been filed on behalf of respondent no. 2 Sh. Alok Saxena, wherein the contents of para1 to 4 have been admitted as correct. It is further stated that the contents of para5 of the petition are in favour of the respondent no.2 and that the portion mentioned in the Will may be decreed in favour of the said respondent. It is also stated that the contents of para6 to para12 are matter of record and it has been prayed that a portion of H. No. V14, Rajouri Garden, New Delhi may be granted in favour of respondent no. 2 as he is living in a rented accommodation and is not financial sound.
Replication to the WS of respondent no. 2 have been filed on behalf of the petitioner, wherein it has been stated that contents of para1 to para4 of the said WS do not need any reply and the remaining contents of the said WS have been denied as incorrect and the averments made in the petition have been reiterated as correct.
PC No. 172/2010 4/12 5
5. Written statement have also been filed on behalf of respondent nos. 3, 4 & 5, wherein it has been stated that the wife of respondent no.5 and mother of respondent nos. 3 & 4, who was the daughter of deceased Sh. O.P. Moria, has since expired. It is further stated that the originator of the Will Sh. O.P. Moria was under
mental stress and was leading lonely life due to death of his wife Smt. Sushila Moria, who has not left any clear Will or instructions for distribution of her property and gold/silver ornaments, cash or istridhan and moreover they were prolonged family clashes. It is stated that Sh. O.P. Moria was a heart patient and was hospitalized many times and he was under regular medical supervision. It is further stated that Sh. O.P. Moria expired on 26.09.2009 and the Will reached in the hands of the respondents only on 24.04.2012. It is stated that the Will is not registered from competent authority and there are lot of blanks in the said Will and all these facts bring the case of the petitioner under thick clouds of doubts and it has been prayed that respondent no. 2 may be given his rights and the petitioner should be penalized for misguiding the court.
Replication to the WS of respondent nos. 3 to 5 have been filed on behalf of the petitioner, wherein the averments made therein have been denied as incorrect and those made in the petition have been reiterated as correct.
6. Reply to the petition have also been filed on behalf of respondent no. 6, wherein it has been stated that she has no objection to the Will dated 07.03.2009 of her father late Sh. O.P. Moria. It is further stated that bank and post office deposits PC No. 172/2010 5/12 6 should be given to the rightful owners as per the wishes of her deceased father Sh.O.P. Moria and the ornaments should be distributed equally amongst all the children and that she does not want to keep strained relationship with her brother and other relatives and it has been prayed that the court may look into the point mentioned above.
Replication to the WS of respondent no. 6 have been filed on behalf of the petitioner, wherein it has been stated that contents of paras1, 2 & 4 need no reply and the remaining contents of the said WS have been denied as incorrect and the averments made in the petition have been reiterated as correct.
7. On the basis of the pleadings of the parties, the following issues were framed on 18.10.2012.
ISSUES:
1) Whether the Will dated 07.03.2009 executed by testator Sh. O.P. Moria is a valid, legal and genuine Will? OPP
2) Whether the petitioner is entitled to the grant of Probate/Letter of Administration in respect of the aforesaid Will dated 07.03.2009, as prayed for? OPP
3) Relief.
8. In support of his case, petitioner has examined himself as PW1. Petitioner has also examined PW2 Sh. Manoj Kumar, who is one of the attesting witnesses to the Will dated 07.03.2009 executed by Sh. O.P. Moria. PC No. 172/2010 6/12 7
9. It is pertinent to mention here that during the trial the present case, petitioner and respondents compromised the matter amicably and as such the respondent nos. 2 to 6 filed their respective ReplycumNo Objections.
10. I have heard the arguments put forward on behalf of the petitioner & respondent no. 2 and have carefully gone through the record of the case. I have also carefully considered the evidence adduced on behalf of the petitioner.
11. The findings on the issues are as under :
12. Issue Nos. 1 & 2
The onus to prove issue nos. 1 & 2 was upon the petitioner and in order to discharge the said onus, the petitionerSh. Anil Kumar Moria has examined himself as PW1 and has filed his evidence by way of affidavit (Ex. PW1/A), wherein it has been stated that his father Sh. O.P. Moria son of late Sh. Din Dayal was the owner of the property bearing No. V14, Rajouri Garden, New Delhi110027 and he died on 26.09.2009 and he has proved the death certificate of his father as Ex. PW1/1. PW1 further deposed that the petitioner and respondent no. 2 are the sons and respondent no. 6 is the daughter of deceased Sh.O.P. Moria and respondent nos. 3 & 4 are the grand children of deceased Sh. O.P. Moria i.e. children of his deceased daughter late Smt. Ameeta Saxena wife of respondent no.5 Sh. Sunil Saxena and there is no other legal heir or survivor of the deceased except the PC No. 172/2010 7/12 8 petitioner and respondents mentioned above. PW1 deposed that late Sh. O.P. Moria had executed a Will dated 07.03.2009 during his life time bequeathing terrace of the first floor upto sky level and the vertical division of the ground floor of property bearing No. V14, Rajouri Garden, New Delhi as described in the Will dated 07.03.2009 in favour of the petitioner and the said Will dated 07.03.2009 was duly executed by him, while he was having good health and was of sound mind and he has proved the said Will dated 07.03.2009 as Ex. PW1/2. PW2 further deposed that he is the owner of property bearing No. V14, Rajouri Garden, New Delhi110027 by virtue of the above said Will. PW1 also deposed that deceased Sh. O.P. Moria was a permanent resident of Delhi and there was no impediment to grant of the Probate of the above said Will.
This witness i.e. PW1 was tendered for cross examination on behalf of the respondents and his cross examination on behalf of the respondents was 'Nil', despite opportunity being given.
13. In order to prove the above said Will dated 07.03.2009, the petitioner has examined PW2 Sh. Manoj Kumar, who is one of the attesting witnesses to the said Will.
PW2 Sh. Manoj Kumar has filed his evidence by way of affidavit (Ex. PW2/A), wherein it has been stated that he was one of the attesting witnesses to the Will dated 07.03.2009 executed by Sh. O.P.Moria, who was known to him for last many years and he was also having family relations with him and on 07.03.2009, he PC No. 172/2010 8/12 9 executed a Will in favour of his son Sh. Anil Kumar Moria. PW2 further deposed that at the time of execution of the said Will, he was present alongwith another witness namely Sh. Tek Chand Gupta and Sh. O.P. Moria had put his signatures on the Will in his presence as well as in the presence of another witness Sh. Tek Chand Gupta and thereafter they both also put their signatures on the above said Will as attesting witnesses. PW2 also deposed that at the time of execution of the Will, Sh.O.P. Moria was in sound disposing mind and there was no pressure, force, threat or coercion upon him for the execution of the Will.
This witness i.e. PW2 was also tendered for cross examination on behalf of the respondents and his cross examination on behalf of the respondents was 'Nil', despite opportunity being given.
14. In the instant case, it is pertinent to mention here that during the trial the present case, the petitioner and respondents have compromised the matter amicably and as such the respondent nos. 2 to 6 filed their respective ReplycumNo Objections.
In the ReplycumNo Objections filed on behalf of the respondent no.2 Sh. Alok Saxena, respondent no. 5 Sh. Sunil Saxena and respondent no. 6 Ms. Achla Moria, the contents of the petition have been admitted and it has been stated that the said respondents have no objection, if the Probate is granted in favour of the petitioner.
In the ReplycumNo Objections filed on behalf of the respondent no. 3 PC No. 172/2010 9/12 10 Sh. Rahul Saxena @ Pulkit Saxena and respondent no. 4 Sh. Prikshit, it has been stated that they were minors at the time of filing of the present petition and now they have become major and filing the present ReplycumNo Objections on their own behalf. In the said ReplycumNo Objections filed on behalf of the respondent nos. 3 & 4, the contents of the petition have been admitted and it has been stated that the said respondents have no objection, if the Probate is granted in favour of the petitioner.
15. It is pertinent to note that the present petition has not been contested by any public person and no objection whatsoever has come on record despite publication of the citation in the daily newspaper ' The Statesman'.
In addition to above, the respondent nos. 2 to 6 have filed their respective ReplycumNo Objections, wherein the contents of the petition have been admitted and it has been stated that the said respondents have no objection, if the Probate is granted in favour of the petitioner.
In these circumstances, the evidence of the PW1 Sh. Anil Kumar Moria and PW2 Sh. Manoj Kumar have remained uncontroverted and there is no reason on record to disbelieve the uncontroverted, uncontested and cogent evidence of PW1 & PW2.
Hence, in view of the above testimonies of PW1& PW2 it is evident that Will (Ex. PW1/2) of the deceased Sh. O.P.Moria has been proved on record in accordance with law by the petitioners. Further, the petitioners have been able to PC No. 172/2010 10/12 11 prove on record that aforesaid Will dated 07.3.2009 (Ex. PW1/2) was executed by testator late Sh. O.P.Moria and that it was his last, genuine, valid and duly executed Will.
Thus, in view of the above discussion and observations, the issue no.1 is decided in favour of the petitioner .
16. Further, in the present case, the petitioner has prayed for grant of probate/Letter of Administration in respect of the Will dated 07.3.2009 executed by late Sh. O.P.Moria, however the perusal of the said Will (Ex. PW1/2) reveals that petitioner has not been named as Executor therein and as such the probate in respect of the Will in question can not be granted in favour of the petitioner in accordance with the provisions of Section222 of Indian Succession Act, which provides that probate shall be granted only to an Executor appointed by the Will. In these circumstances and in view of the provisions of section 232 of Indian Succession Act, petitioners shall be entitled only to Letter of Administration in respect of the property mentioned in the said Will.
Hence, in view of the above, issue no.2 is decided accordingly.
17. RELIEF In view of the above findings on the aforesaid issues no. 1 & 2, the Letter of Administration with annexed Will dated 07.3.2009, in respect of property bearing No.V14, Rajouri Garden, New Delhi belonging to deceased Sh.O.P.Moria PC No. 172/2010 11/12 12 be issued in favour of the petitionerSh. Anil Kumar Moria after obtaining requisite Court Fee and Administration bond for a sum of Rs. 73,18,133/ with one surety of like amount. Further, the petitioner is directed to file the inventory of immovable property 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, share and ownership of the property mentioned above is not decided by this court.
File be consigned to record room.
(Announced in the open ) (Paramjit Singh)
(court on 11.12.2014) ADJ02 (West)
Tis Hazari Courts Delhi
11.12.2014
PC No. 172/2010 12/12
13
PC No.172/10
11.12.2014
Present: None.
Vide separate judgment, announced in the open court, the present petition for the grant of Pobate/Letter of Administration , filed on behalf of the petitioner, has been disposed of.
File be consigned to record room.
(Announced in the open ) (Paramjit Singh)
(court on 11.12.2014) ADJ02 (West)
Tis Hazari Courts Delhi
11.12.2014
PC No. 172/2010 13/12