Delhi District Court
Sh. Naresh Kumar ) vs The State ) on 24 December, 2020
IN THE COURT OF SH. HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE-02, SOUTH-WEST DISTRICT,
DWARKA COURTS, NEW DELHI
PC NO. 26/2018
CNR No. DLSW010099732018
IN THE MATTER OF:
1. Sh. Naresh Kumar )
S/o Late Madan Lal )
2. Sh. Ganesh Kumar )
S/o Late Madan Lal )
3. Sh. Jagish Kumar )
S/o Late Madan Lal )
All residents of: )
House No. D-56, Kiran Garden )
Uttam Nagar, New Delhi ) ... Petitioners
v.
1. The State )
2. Sh. Raj Kumar )
S/o Late Madan Lal )
R/o 618, Ravi Das Gali )
Vishwas Nagar, Shahdara, Delhi )
3. Sh. Ashok Kumar )
S/o Late Madan Lal )
R/o H No. 64, Upper Ground Floor )
P. Extn. Mohan Garden )
Uttam Nagar, New Delhi ) ... Respondents
Date of institution of petition: 10.05.2018
Date of judgment reserved: 19.12.2020
Date of pronouncement of judgment: 24.12.2020
P.C. No. 26/2018
Page No. 1/8
JUDGMENT
1. Amongst the pancha brothers, Naresh Kumar, Ganesh Kumar Jagdish Kumar, Raj Kumar and Ashok Kumar, Naresh, Ganesh and Jagdish have preferred a petition under Section 276 of the Indian Succession Act, 1925 (hereinafter "the Act") seeking grant of probate regarding the estate of their mother, namely, Janki Rani, who died testamentary on 25.08.2010 and left behind five sons and a will dated 07.01.2010.
2. The will dated 07.01.2010 is propounded by Naresh, Ganesh and Jagdish, whose attesting witnesses are Geeta Rani, Anuj Shakya and Sushma Rani. As per the will of Janki Rani, her immovable property a house bearing No. D-56, Kiran Garden, Uttam Nagar, New Delhi (hereinafter "subject property") has devolved upon Naresh, Ganesh and Jagdish to the exclusion of Raj Kumar and Ashok Kumar.
3. At the outset, this Court observes that in the will under question no executor has been appointed. Section 222 of the Act provides that probate can only be granted to an executor appointed by the will. During the course of submissions, it has been conced by the Ld. counsel for the petitioners that no executor has been appointed in the will by the testatrix. Accordingly, probate cannot be granted.
4. However, Section 232 of the Act provides that when deceased has made a will, but has not appointed an executor, or deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testatrix or before she has proved the will, or executor dies after having proved the will, but before she has administered all the estate of the deceased, a universal or a residuary legatee can be admitted to prove the will, and letters of administration with the will annexed may be granted to them of the whole estate. It is observed that Section 278 of the Act is the relevant Section which deals with the applications for letters of P.C. No. 26/2018 Page No. 2/8 administration. The petitioners before this Court are the beneficiaries under the will dated 07.01.2010. Accordingly, by virtue of Section 232 read with Section 278 of the Act, the present petition is treated under Section 278 of the Act - See Sanjay Suri v. State & Ors.1
5. From the perusal of the petition it is observed that not only Janki Rani's husband but one of her six sons, namely, Tara Chand predeceased here and thus at the time of the death of Janki Rani, the legal heirs left behind were the three petitioners, namely, Naresh Kumar, Ganesh Kumar, Jagdish Kumar along with two brothers, namely, Raj Kumar and Ashok Kumar.
6. On 10.05.2018, notice of the petition was issued to the near relatives as per the list of relatives filed by the petitioners and it was ordered to publish the citation in English daily The Statesman and Hindi daily Veer Arjun, and also to the concerned Collector/SDM for filing the valuation report of the subject property in accordance with law.
7. Pursuant to the service of notice issued to the close relatives, both the full blood brothers of the petitioner, namely, Raj Kumar and Ashok Kumar appeared in Court and recorded their no-objection statements in favour the petitioner.
8. To prove their case the petitioners examined three witnesses i.e. petitioner No.1 (PW-1) and two attesting witnesses, namely, Sushma Rani (PW2) and Anuj Shakya (PW-3). Naresh Kumar (PW1) tendered his evidence on 24.01.2020 by way of an affidavit Ex.PW1/1. PW1 relied upon the following documents:
S.No. Particulars of Documents Documents Marked as
1. Original will dated 07.01.2020. Ex. PW1/A
2. Aadhaar card. Ex.PW1/B (OSR)
3. Death certificate of Janki Rani. Ex.PW1/C (OSR) 1 2003 (71) DRJ 446 P.C. No. 26/2018 Page No. 3/8
9. The attesting witnesses to the will, Sushma Rani (PW2) and Anuj Shakya (PW3), also recorded their statements on 24.01.2020. PW2 and PW3 testified on the same lines that the testatrix Janki Rani signed the will - Ex.PW1/A in their presence and she was in good physical health and mental state of mind at the time of signing of the will.
10. Notice was also issued to the concerned Sub-Divisional Magistrate, Dwarka (SDM) calling for the valuation report of the subject property. As per the valuation report filed by the office of SDM, the subject property was valued at ₹26,29,387/- (Rupees Twenty six lakhs twenty nine thousand and three hundred eighty seven only).
11. On careful perusal and examination of the case record it is observed that the jurisdiction of this Court has been rightly invoked by the petitioner, as the testatrix at the time of her death not only resided but also had a fixed place of abode within the jurisdiction of this Court. It is also observed that a the subject property is also situated within the territorial jurisdiction of this Court.
12. The citations in terms of Section 283(1)(c) of the Act, 1925 were published in newspapers, The Statesman2 and Veer Arjun3 on 02.08.2018, respectively. The notice was also displayed at the notice board of the court.
13. The Hon'ble High Court of Delhi in Ajay Kumar v. The State & Ors. - FAO No. 39/2017 dated 05.07.20184 wherein His Lordship, Valmiki J.Mehta, J., allowed the appeal under Section 299 of the Act, which challenged the impugned judgment dated 28.10.2006 dismissing the probate petition. The Hon'ble High Court held that the appellant had been successful in proving due execution and attestation of the will.
2English daily newspaper 3 Hindi daily newspaper 4 2014 SCC OnLine Del 2521 P.C. No. 26/2018 Page No. 4/8
14. In Ajay Kumar's case5 though the contesting respondents did not lead any evidence whatsoever but His Lordship' delineated the provisions with regard to requirement of a valid and enforceable will under Section 63(c) of the Indian Evidence Act, 1872 (hereinafter "Evidence Act") and procedure how the execution of the will is proved under the provisions of the Act and the Evidence Act.
15. Hon'ble High Court relied upon the ratio of the Hon'ble Supreme Court's judgment in M.B. Ramesh (Dead) by LRs v.K.M. Veeraje Urs (Dead) by LRs and Ors.6 with respect to the validity and proving of will. A will has to be executed in the manner required by Section 63 of the Evidence Act. Section 68 of the Evidence Act, requires that the will is to be proved by examining at least one attesting witness. Section 71 of the Indian Evidence Act, 1872 comes to the rescue of a party who had done his best but would otherwise be let down if other means of proving due execution by other evidence are not permitted.
16. The relevant provisions of the Indian Succession Act, 1925 and Indian Evidence Act, 1872 read as follows:
Section 63 of the Succession Act "63. Execution of unprivileged wills.- Every testatrix, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:
(a)-(b) ... ... ...
(c) The will shall be attested by two or more witnesses, each of whom has seen the testatrix sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testatrix, 5 ibid.6
(2013) 7 SCC 490 P.C. No. 26/2018 Page No. 5/8 or has received from the testatrix a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testatrix, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
Section 68 of the Evidence Act:
"68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving it's execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence."
Section 71 of the Evidence Act:
"71. Proof when attesting witness denies the execution.- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."
17. Hon'ble High Court in Ajay Kumar v. The State & Ors. - FAO No. 39/2017 dated 05.07.20187 observed that technicalities must not come as an insurmountable obstruction to defeat a litigant and once an attesting witness is examined, and his statement if read holistically shows proof of the execution and attestation of the will then the will should be held to be proved.
18. Mr. Naresh Kumar learned counsel for the petitioners submitted that there is no legal impediment in allowing the petition. The learned counsel submitted that the Janki Rani was a widow whose husband and one of her six sons, namely, Tara Chand predeceased her. The learned 7 2014 SCC OnLine Del 2521 P.C. No. 26/2018 Page No. 6/8 counsel further submitted that the cause of action arose to prefer the petition with the need for the petitioners, to get the subject property duly recorded in their names, as life is uncertain and the same would avoid any further controversies amongst the brothers. The learned counsel also stressed that the sons of Janki Rani, who have been excluded by the will in question appeared before this court and recorded their statements in favour of the petitioners.
19. This Court arrives at a finding that the petitioners have produced and filed the primary document i.e. will dated 07.01.2010 of the testatrix Janki Rani as Ex.PW1/A, and further proved the same by the testimony of the attesting witnesses namely, Sushma Rani (PW2) and Anuj Shakya (PW3).
20. Nothing material has been elicited with regard to the execution, attesting of the will and as well as of the mental soundness of the testatrix to execute the will. This Court holds that there is no contention to the petition, as per Section 286 of the Indian Succession Act, 1925.
21. This Court observes that the petitioners have not filed any objections to the valuation of the property in question. Thus, the valuation of the immovable property as per the concerned SDM's report is taken as correct and true value of the immovable properties - See Section 19-H of the Court Fees Act, 1870.
22. The Court's role in matters concerning wills is limited to examining whether the instrument propounded as the last will of the testatrix is or is not that by the testatrix and whether the same is a product of free and sound disposing mind.
23. In view of the above factual and legal position, I hold that the petitioner has proved that Janki Rani duly signed and executed the will dated 07.01.2010 in favour of the petitioners.
24. Accordingly, let the letters of administration of a will dated P.C. No. 26/2018 Page No. 7/8 07.01.2010 of the estate of Janki Rani (testatrix) comprising of an immovable property i.e., a house bearing No. D-56, Kiran Garden, Uttam Nagar, New Delhi along with a certified copy of the will dated 07.01.2010 be granted to the petitioners with the seal of this Court in the form set forth in Schedule VI of the Act and also, subject to completion of requisite formalities, such as:
(a) furnishing ad-valorem Court fees on the total value of the subject property;
(b) petitioners to give an administration bond equivalent to the value of the subject property;
(c) one surety for the equivalent value of the subject property, and
(d) exhibit inventory and account within the prescribed period, as per Section 317 of the Indian Succession Act, 1925.
25. Needless to mention herein that nothing stated hereinabove shall be construed as finding with regard to the title of the subject property.
26. File be consigned to record room only after due compliance and necessary action, as per Rules.
Digitally signed by HARGURVARINDER HARGURVARINDER SINGH JAGGI
SINGH JAGGI
Date: 2020.12.24
15:47:06 +0530
Pronounced in the open Court (HARGURVARINDER S. JAGGI)
on December 24, 2020 Addl. District Judge-02, South West
Dwarka Courts Complex, Delhi
P.C. No. 26/2018
Page No. 8/8