Delhi District Court
Ms. Sunanda Sarkar (Senior Citizen) vs State on 9 September, 2022
IN THE COURT OF ADJ07, SOUTHEAST DISTRICT, SAKET COURTS, DELHI
Presided By : Sh. Jay Thareja, DHJS
Probate Case No: 1555/2016
1. Ms. Sunanda Sarkar (Senior Citizen)
W/o. Late Sh. Prabitra Kumar Sarkar,
R/o. G272, Sarita Vihar, New Delhi110076.
2. Sh. Partha Kumar Sarkar
S/o. Late Sh. Pabitra Kumar Sarkar
R/o. A3203, Sreevatsa Global Village,
Chinnavedampatti, Coimbatore641049. .....Petitioners
Versus
1. State
2. Smt. Pushpita Dutta,
W/o. Sh. Prasun Dutta
R/o. 1001A Wing, Whispering Heights,
Mind Space, Chincholi, Bunder Road,
Malad West, Mumbai400064.
3. Ms. Sushmita Sen
W/o. Sh. Sourav Sen,
R/o. H6/3, First Floor, Malviya Nagar,
New Delhi110017. .....Respondents
PETITION FOR GRANT OF PROBATE/LETTERS OF
ADMINISTRATION UNDER SECTION 276/278 OF THE
INDIAN SUCCESSION ACT,1925
DATE OF INSTITUTION : 07.04.2016
DATE OF RESERVING FOR JUDGMENT: 27.08.2022
DATE OF DECISION : 09.09.2022
JUDGMENT
1. The petitioners have filed this petition for grant of probate/letters of PC No.1555/2016 Ms. Sunanda Sarkar & Anr. v The State & Ors.
Page No.1 of 6administration on the strength of the unregistered Will dated 12.06.2013 of Late Sh. Pabitra Kumar Sarkar.1
2. In this petition, it is interalia pleaded that the petitioners are the wife and son of Late Sh. Pabitra Kumar Sarkar (henceforth 'Sh. P.K. Sarkar'), who had died on 22.05.2015; that Late Sh. P.K. Sarkar has left behind Smt. Sunanda Sarkar (wife/petitioner no. 1), Sh. Partha Kumar Sarkar (son/petitioner no. 2), Smt. Pushpita Dutta (daughter/respondent no. 2) and Ms. Sushmita Sen (daughter/respondent no. 3); that during his lifetime, Late Sh. P.K. Sarkar out of his free will and with sound disposition of mind, had executed a unregistered Will dated 12.06.2013 qua his immovable and movable properties in the presence of Sh. Bibhuti B. Mukherjee and Sh. Achintya Kumar Biswas; that as per the said unregistered Will, the half share of Late Sh. P.K. Sarkar in H. No. G272, Sarita Vihar, New Delhi76 was bequeathed to the petitioner no. 1, Smt. Sunanda Sarkar and the petitioner no. 2 was appointed as the Executor; that there exists no impediment for this Court to grant the requisite probate/letters of administration in favour of the petitioners and that in such circumstances, this Court should grant the requisite probate/letters of administration in favour of the petitioners. 2
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 respondents and the citation of 1 This petition has been duly verified by Sh. Achintya Kumar Biswas, an attesting witness to the unregistered Will dated 12.06.2013 of Late Sh. Pabitra Kumar Sarkar, as per Section 281 of the Indian Succession Act, 1925.
2 The other properties mentioned in this petition, have not been mentioned in the aforesaid narration because in view of proviso to Section 273 of the Indian Succession Act, 1925, the Ld. Advocate for the petitioners had submitted before the Ld. Predecessor Judge, on 18.10.2021 that by way of this petition, the petitioners are pressing for grant of probate/letters of administration only in respect of H. No. G272, Sarita Vihar, New Delhi76.
PC No.1555/2016Ms. Sunanda Sarkar & Anr. v The State & Ors.
Page No.2 of 6this petition was directed to be published in four newspapers viz. 'The Statesman', 'The Hindu', 'Navbharat Times' and 'Aajkaal'; that in pursuance of the said directions, notice of this petition was served upon the respondents and the citation of this petition was published in the newspaper, 'The Statesman', on 02.06.2016 and in the newspapers, 'The Hindu', 'Navbharat Times' and 'Aajkaal, on 01.06.2016; that in response thereto, only the respondent no. 3 had appeared in this Court with a special power of attorney dated 27.06.2016 executed in her favour by the respondent no. 2 and no public person had come forward to offer any objection(s) qua grant of the probate/letters of administration to the petitioners, on the strength of the registered Will dated 12.06.2013 of Late Sh. Pabitra Kumar Sarkar.
4. Also, the record of the Court file shows that during the proceedings conducted as per Section 283 of the Indian Succession Act, 1925, four persons were examined by this Court viz. PW1 Ms. Sunanda Sarkar, PW2 Sh. Achintya Kumar Biswas, PW3 Sh. Partha Kumar Sarkar and RW1 Ms. Sushmita Sen.
5. During her testimony, PW1 Ms. Sunanda Sarkar had deposed in line with the contents of his petition and interalia relied upon the original death certificate of her husband, Late Sh. P.K. Sarkar, Ex.PW1/1, original unregistered Will dated 12.06.2013 executed by Late Sh. P.K. Sarkar, Mark A and copy of her aadhaar card, Ex.PW1/3.
6. During his testimony, PW2 Sh. Achintya, an attesting witness to the original unregistered Will dated 12.06.2013 of Late Sh. P.K. Sarkar, had tendered in evidence the original unregistered Will dated 12.06.2013 of Late Sh. P.K. PC No.1555/2016 Ms. Sunanda Sarkar & Anr. v The State & Ors.
Page No.3 of 6Sarkar, Ex.PW2/1 and interalia deposed that he knew Late Sh. P.K. Sarkar since 1012 years as he used to meet him in the cultural functions of Sarita Vihar; that Late Sh. P.K. Sarkar was an educated person, who had retired as the Auditor General, Government of India; that Late Sh. P.K. Sarkar had himself prepared the unregistered Will dated 12.06.2013, Ex.PW2/1; that the said Will bears his signatures at point A, the signatures of the testator, Late Sh. P.K. Sarkar at point B and the signatures of Sh. Bibhuti Bhushan Mukherjee at point C; that all the said signatures were made at the same time in the presence of the three persons who had signed on the said Will; that the unregistered Will dated 12.06.2013, Ex.PW2/1 was signed at "Sarita Vihar Sanskriti Parishad", a place where he, Late Sh. P.K. Sarkar and other members of the Bengal Community used to gather; that he had signed the unregistered Will dated 12.06.2013, Ex.PW2/1, on 12.06.2013 itself; that the testator, Late Sh. P.K. Sarkar was fully aware about the contents of the unregistered Will dated 12.06.2013, Ex.PW2/1; that at the time of execution of the unregistered Will dated 12.06.2013, Ex.PW2/1, Late Sh. P.K. Sarkar was having good physical and mental condition and that Late Sh. P.K. Sarkar had executed the unregistered Will dated 12.06.2013, Ex.PW2/1, without any pressure and out of his free will.
7. During his testimony, PW3 Sh. Partha Kumar Sarkar had deposed in line with the contents of his petition and interalia relied upon death certificate of Late Sh. P.K. Sarkar, Ex.PW1/1, original unregistered Will dated 12.06.2013 of Late Sh. Pabitra Kumar Sarkar, Ex.PW2/1 and his election ID card, Ex.PW3/1(OSR).
8. During her testimony, RW1 Smt. Sushmita Sen had tendered in PC No.1555/2016 Ms. Sunanda Sarkar & Anr. v The State & Ors.
Page No.4 of 6evidence her no objection affidavit, Ex. R3/1 and deposed that she has no objection qua grant of the requisite probate/letters of administration to the petitioners on the strength of the unregistered Will dated 12.06.2013 of Late Sh. P.K. Sarkar.
9. In order to finally adjudicate upon this petition, I heard Sh. Ankur Saini, Ld. Advocate for the petitioners, on 27.08.2022. During the hearing, the Ld. Advocate for the petitioners had submitted that in view of the unchallenged testimony of PW1 Ms. Sunanda Sarkar, PW2 Sh. Achintya Kumar Biswas and PW3 Sh. Partha Kumar Sarkar and the nonappearance of any public person to object to the grant of the probate/letters of administration to the petitioners, on the strength of the registered Will dated 12.06.2013 of Late Sh. P.K. Sarkar, this Court should grant the requisite probate/letters of administration to the petitioners.
12. After considering the submission made by the Ld. Advocate for the petitioners, on 27.08.2022 and perusing the record of the Court file, I find that the testimonies of PW1 Ms. Sunanda Sarkar, PW2 Sh. Achintya Kumar Biswas and PW3 Sh. Partha Kumar Sarkar particularly the testimony of PW2 Sh. Achintya Kumar Biswas, clearly establish that the unregistered Will dated 12.06.2013, Ex.PW2/1, is the last and final Will of Late Sh. P.K. Sarkar and that it was executed by Late Sh. P.K. Sarkar out of his free will and with sound disposition of mind. In light of this finding and in light of the fact that neither any public person nor the State has come forward to object to the grant of the probate/letters of administration to the petitioners, on the strength of the unregistered Will dated 12.06.2013, Ex.PW2/1 of Late Sh. P.K. Sarkar, this petition is allowed and it is directed that in view of Section 222 of the Indian Succession Act, 1925, probate PC No.1555/2016 Ms. Sunanda Sarkar & Anr. v The State & Ors.
Page No.5 of 6qua unregistered Will dated 12.06.2013, Ex.PW2/1 of Late Sh. P.K. Sarkar along with copy of the unregistered Will dated 12.06.2013, Ex.PW2/1 of Late Sh. P.K. Sarkar shall be issued to the petitioner no. 2, as per Section 289 of the Indian Succession Act, 1925 upon furnishing of requisite courtfees, administration bond and surety bond by the petitioner no. 2, as per the provisions of the Courtfees Act, 1870 and Indian Succession Act, 1925.
13. 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 H.No. G272, Sarita Vihar, New Delhi110076 by Late Sh. P.K. Sarkar and that till, the petitioner no. 2 does not furnish the requisite courtfees, 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 no. 2.
14. After completion of the necessary formalities by the petitioner no. 2 and the Ahlmad, the file shall be consigned to the record room.
Digitally signedJAY by JAY THAREJA Date: THAREJA 2022.09.09 17:15:31 +0530 Announced in open Court (Jay Thareja) today on 09.09.2022 Ld. ADJ07, South East District, Saket Courts/Delhi PC No.1555/2016 Ms. Sunanda Sarkar & Anr. v The State & Ors. Page No.6 of 6