Delhi District Court
Mrs Pushpa Sharma vs State Of Nct on 11 May, 2016
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 194/10/01
Unique ID Case No. - 02401C0093802001
Mrs Pushpa Sharma, aged about 62 years
D/o Late Sh. Hansraj Sharma
W/o Sh. J.P. Sharma
R/o 25A, Type-C, BHEL Colony,
Sector-17, Noida
.....Petitioner
Vs.
1 State of NCT
2 Smt. Sudesh Sharma
W/o Sh. Subear Prahlad Singh
R/o Vill. & P.O. Tikri Brahman,
Teh. Palwal, Distt. Faridabad,
Haryana
3(a) Sh. Mahender Kumar Sharma
S/o Late Sh. Raghuvir Saran Sharma
3(b) Sh. Manish Sharma
S/o Mahender Kumar Sharma
3(c) Ms Ritu Sharma
D/o Sh. Mahender Kumar Sharma
3(d) Ms Pooja Sharma
D/o Sh. Mahender Kumar Sharma
All R/o 102, Shiv Vihar, Indira Enclave, Paschim
Vihar, Delhi
4 Mrs Sharda Panchal
D/o Late Sh. Hans Raj Sharma
W/o Sh. Ashok panchal
R/o E-30, Sumitra Path, Basant Marg,
Beni Park, Jaipur (Raj.)
5 Mrs Manju Sharma
D/o Sh. Hans Raj Sharma
W/o Sh. N.K. Sharma
R/o 1.B.9 Mahavir Nagar Extension
Kota Rajasthan
6 Mrs Saroj B Ram
D/o Late Sh. Hans Raj Sharma
PC No. 194/10/01 Pushpa Sharma Vs State Page 1/20
W/o Dr. Sant Ram
R/o A-50-A, Vivek Vihar
Ph-II, Delhi
Also at
3126, West Wood Estate,
Drive ERIE, P.A. USA
7 Mrs Subhadra
W/o Sh. Sushil Kumar
D/o late Sh. Hans Raj Sharma
R/o GH-8/211, Paschim Vihar,
New Delhi
8A Krishna Sharma
W/o Late Sh. Indra Prakash Sharma
R/o A-50-A, Vivek Vihar,
Ph-II,Delhi
8B Rajnish Sharma
S/o Late Sh. Indra Prakash Sharma
R/o A-50-A, Vivek Vihar,
Ph-II, Delhi
8C Rahul Sharma
S/o Late Sh. Indra Prakash Sharma
R/o A-50-A, Vivek Vihar,
Ph-II, Delhi
......Respondents
Date of institution of the case : 31.01.2001
Date reserved for judgment on : 28.04.2016
Date of pronouncement of judgment : 11.05.2016
JUDGMENT:
1 A petition under Section 276 of Indian Succession Act for grant of Probate/letter of administration of the Will dated 21.09.96 executed by the deceased Smt Anar Devi W/o late Sh. Hans Raj Sharma has been filed.
2 The factual matrix of the present case is that mother of the petitioner deceased/testatrix Smt. Anar Devi ( hereinafter referred as the deceased) died at Delhi on 24.09.1998. The PC No. 194/10/01 Pushpa Sharma Vs State Page 2/20 deceased Mrs Anar Devi was a Hindu by religion and hence succession to her property is governed by Hindu Succession Act. The deceased left behind the following legal heirs:
1 Mrs Sudhes Sharma Daughter 2 Mrs Satya Sharma Daughter 3 Mrs Manju Sharma Daughter 4 Mrs Sharda Panchal Daughter 5 Mrs Saroj Ram Daughter 6 Mrs Subhadra Daughter 7 Sh. Indra Prakash Sharma Son It is stated that besides above stated legal heirs deceased had no other heirs or legal representatives.
3 It is further stated that deceased during her life time executed her last Will and Testament dated 21.9.96 while in sound disposing mind and of her own free will and accord. The said will was got registered with the Sub-Registrar, Noida as book No. 3rd page number, 237 M/N 730 Addl. Book No. 4th page number 41-1-4 on 23.9.96. By virtue of the above said Will dated 21.9.96 the deceased had devised/bequeathed her entire movable and immovable properties in favour of their all six daughters shared as follows:-
1 Mrs Sudesh Sharma daughter 15% 2 Mrs Pushpa Sharma daughter 20% 3 Mrs Satya Sharma daughter 5% 4 Mrs Sharda Panchal daughter 5% 5 Mrs Manju Sharma daughter 5% 6 Mrs Saroj Ram daughter 50% PC No. 194/10/01 Pushpa Sharma Vs State Page 3/20
4 It is further stated that deceased executed the above said Will dated 21.09.96 in the presence of Mr Prem Pal Singh S/o Sh. Col. Ram Pal Singh, R/o J-203, Sector 25, Noida and Mr. Gopichand S/o Shri B.K. Singh, R/o Village Bhoj Modinagar, Distt. Meerut.
5 The deceased left behind immovable property No. A-50-A, Vivek Vihar, Delhi consisting of 200 sq yds. The entire moveable and immovable properties bequeathed by late Mrs Anar Devi in the Will dated 21.09.96 were acquired properties of her husband late Sh. Hans Raj Sharma who bought this plot from Mr. Gurbax Singh for a sum of Rs. 1,00,000/- in 1984 but the plot was bought in the name of the deceased and later on construction was done on the same. Petitioner seeks Probate in respect of Will dated 21.09.96 of late Mrs Anar Devi, deceased or in alternative it is submitted that the Letter of Administration of the Will annexed be granted to the petitioner and pass any other further order as this court may deem fit.
6 Upon filing the present petition, notice of the same was issued to all respondents/LRs of the deceased. Citation for general public was published in the daily newspaper "Statesman" dated 28.03.2001. Notice was also served to State through Chief Secretary and to Collector. Accordingly Assistant Collector Sub- Division, filed Valuation report in respect of the property in question and assessed the market value of the same as Rs.
7 It is pertinent to mention here that initially in this petition only eight respondents and later on petitioner moved an application on 06.08.2001 for impleading the DDA as respondent PC No. 194/10/01 Pushpa Sharma Vs State Page 4/20 and vide order dated 20.5.2005 the application of the petitioner was allowed and DDA was a made a performa party in this case. Vide order dated 7.8.2007 respondent no. 9 DDA being the associated party in the present petition, deleted from the present petition.
8 In this petition respondent no. 2, Smt. Sudesh Sharma, respondent no. 3, Smt. Satya Rani, respondent no. 4, Smt. Sharda Panchal, respondent no. 6, Smt. Saroj B Ram filed their Reply/No objection for grant of Probate in favour of petitioner in respect of the estate of late Smt. Anar Devi as per Will dated 21.09.1996.
9 Respondent no. 8 Sh. Inder Prakash Sharma S/o late Shri Hans Raj Sharma filed objections.
10 In the objections, it is stated that this court has no jurisdiction to try and entertain the present petition. The present petition has been filed by the petitioner only to grab the property on the basis of forged and manipulated Will allegedly executed by the Textatrix Smt. Anar Devi. The alleged will is forged with the motive to deprive the other legal heirs including the answering objector of the share in the property.
11 It is further stated that the present petition is not maintainable under order 7 Rule 11 CPC as no cause of action was ever arose in favour of the petitioner and the suit deserves dismissal. It is stated that present petition is not maintainable as the testatrix Smt. Anar Devi was not having any right to executed any Will in respect of the property No. A-50-A, Vivek Vihar, Delhi as she was neither the absolute owner of the property nor the PC No. 194/10/01 Pushpa Sharma Vs State Page 5/20 property was her self acquired property. It is stated that the property in question was allotted in the name of one Gurbax Singh Sondhi by DDA and later on Shri Gurbax Singh Sondhi further executed one GPA, SPA, Agreement to Sell in the name of the answering respondent who also applied for the mutation with DDA in his name.
12 It is further stated that testatrix was being provided expenses for her maintenance and to meet her requirements in her old age and the answering respondent has been giving his services to the testatrix being the mother of the answering respondent and at no point of time the testatrix who having good terms with the answering respondent and had love and affection towards him has not stated or narrated any fact till her death in respect of the execution of any Will, thus no will has been executed by the deceased Smt. Anar Devi.
13 It is further submitted that deceased, the mother of the answering respondent was also semi-literate and could not understand the implication of the Will and has not executed any Will and in the alleged Will, details of the property is not mentioned and the said Will has no force in law.
14 It is further submitted that petitioner has no right, title or interest in any manner to file the present petition and present petition is also not maintainable as the petitioner has suppressed the relevant true facts and present petition has been filed with malafide intention and ulterior motive only to harass the answering respondent.
PC No. 194/10/01 Pushpa Sharma Vs State Page 6/2015 On merit the respondent no. 8 denied all the averments mentioned in the petition and prayed that present petition may please be dismissed with exemplary cost.
16 Respondent no. 9, DDA also filed written statement/ objections stating that petitioner has filed the present petition impleading respondent no. 9, "Senior Asstt. Director, LA ( Residential). It is submitted that no suit or proceedings can be filed against the Sr. Asstt. Director LA ( Residential). It is further submitted that petitioner has under valued the petition and has not come to this court with clean hands and has suppressed the material facts.
17 It is further stated that petitioner has not placed on record any document to show that the said property was either purchased by Shri Hans Raj Sharma or by Smt. Anar Devi.
18 It is further submitted that there is no privity of contract with the petitioner. It is stated that property in question was alloted to Shri Sujan Singh Sodhi and upon his death the plot was mutated in favour of his real son Sh. Gurbux Singh on 27.5.1981 and a perpetual lease deed was executed in his favour on 17.8.1981. As per clause 5 of the lease deed Sh. Gurbux Singh had no right to sell the said plot to anybody without taking prior permission from the Delhi Development Authority. It is stated that DDA floated a policy for conversion from lease hold to free hold on the basis of agreement to sell and general power of attorney. Shri I.P. Sharma, applied for conversion of the said plot from lease hold to free hold under the said scheme on the basis of agreement to sell and general power of attorney executed on 18.11.1984 by Sh.
PC No. 194/10/01 Pushpa Sharma Vs State Page 7/20Gurbux Singh in his favour. The case of conversion from lease hold to free hold was in process and in the meanwhile the petitioner made a complaint against Sh. I.P. Sharma claiming herslef to the real sister of Shri I.P. Sharma. She claimed that the plot in question was purchased by her father late Shri Hans Raj Sharma who had later on transferred the said plot in favour of her mother i.e Smt. Anar Devi. She further claimed that Smt. Anar Devi expired on 24.09.1996 leaving behind her a will in respect of the said property in question.
19 It is further stated that on receipt of complaint both the parties were called in the office of DDA in public hearing and the Director ( RL) recorded the statement of both the parties on 17.8.2000. The petitioner Smt. Pushpa Sharma failed to give any documentary proof regarding purchase of plot in question by her father, while on the other hand Sh. I.P. Sharma came with Sh. Gurbux, the lessee of the plot who confirmed that he had sold the plot to Sh. I.P. Sharma and not to Sh. Hans Raj Sharma and Smt. Anar Devi. Thereafter as per order of the competent authority vide order 18.9.2001 it was ordered that since the title of the plot in question is not clear, therefore, the conversion cannot be allowed.
20 It is further stated that no notice as required under Section 53 B of Delhi Development Act was served upon the respondent no. 9 DDA prior to filing of the present petition and the present petition is liable to be dismissed on this ground alone. On merit also all the averments made in the petition are denied. 21 Petitioner filed replication to the objections of respondent no.9 DDA and denied all the averments made in the objection/written statement.
PC No. 194/10/01 Pushpa Sharma Vs State Page 8/2022 On the basis of pleading, my Ld. Presiding Officer vide order dated 17.09.2007 has framed following issues:
1 Whether the Will dated 21.09.1996 of Smt. Anar Devi is proper and valid? OPP 2 Whether the Will dated 21.09.1996 of Smt. Anar Devi is forged and fabricated? OPR-8 3 Whether the petitioner is entitled to the grant of probate/letters of administration in respect of the Will dated 21.09.1996 of Smt. Anar Devi? OPP 4 Relief
23 Petitioner in order to prove her case examined herself as PW-1 and she further examined Sh. Prem Kumar attesting witness to the Will as PW-2.
24 Respondent no. 8 Smt. Krishna Sharma appeared as R8W1 and tendered her evidence by way of affidavit Ex. R8W1/X. 25 I have gone through written arguments on behalf of the petitioners and respondent no.8 . My issue wise findings are as under:
Issue nos. 1, 2 & 3 are taken up together as they are interconnected. Although the onus of issue no. 1 & 3 is on petitioners and issue no. 2 is on respondent no. 8. Respondent no. 8 assailed the Will dated 21.09.1996 Ex. PW-1/2.
26 Let us pursue the law laid down in Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615.
"19. The contentious pleadings and the assertions thereupon in the backdrop of the evidence as a whole have been analyzed. The pleading PC No. 194/10/01 Pushpa Sharma Vs State Page 9/20 perspective notwithstanding, the purport and play of Section 63 of Indian Succession Act (hereinafter referred to as 'the Act') read with Section 68 and 71 of Indian Evidence Act, 1872 (hereinafter referred to as '1872 Act'), it would thus be apt, nay, imperative to refer to these legal provisions before embarking on the appreciation of evidence to the extent indispensable.
20. Section 63 of the Act and Sections 68 and 71 of the 1872 Act are thus extracted hereunder for ready reference:
20.1 Section 63 of the 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) The testatrix shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testatrix, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(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 or will, in the presence and by the direction of the testatrix, or has received from the testatrix a personal acknowledgment of his signature or mark, or the signature of such other person; and PC No. 194/10/01 Pushpa Sharma Vs State Page 10/20 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.
20.2 Section 68 & 71 of the 1872 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 its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
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.
21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the testatrix would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testatrix or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testatrix sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testatrix, or has received from the testatrix, personal PC No. 194/10/01 Pushpa Sharma Vs State Page 11/20 acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testatrix. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.
22.1 In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.
22.2 These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 PC No. 194/10/01 Pushpa Sharma Vs State Page 12/20 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence. 22.3 Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient would be, to scrutinize the evidence adduced by the parties."
27 In order to prove the Will, the propounder has to show that the Will was signed by the testatrix; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testatrix is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions PC No. 194/10/01 Pushpa Sharma Vs State Page 13/20 appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testatrix's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. Reliance is placed on H. Venkatachala Iyengar Vs B.N. Thimmajamma, ( (1995) Supp.1 SCR 426 and Rani Purnima Devi Vs Kumar Khagendra Narayan Dev, (1962) 3 SCR 195.
28 The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testatrix has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testatrix alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of PC No. 194/10/01 Pushpa Sharma Vs State Page 14/20 fraud, coercion or undue influence is raised, the burden would be on the caveator. Reference is made to Benga Behera and Anr. Vs Braja Kishore Nanda and Ors., MANU/SC/7673/2007;
Madhukar D. Shende Vs Tarabai Shedage, MANU/SC/00162002; and Sridevi and Ors. Vs Jayaraja Shetty and Ors (2005) 8 SCC 784.
29 The law is well settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of free volition of the executants who had voluntarily executed the same after noting and accepting the contents of the Will. Execution of Will is a solemn act of the executants who must own up the recitals in the instrument and there must be clear evidence that the puts his signature in a document after knowing fully its contents. The executant of a document must, after fully understanding the contents and tenor of the document put his signature or affix his thumb impression. In other words, the execution of the document does not mean merely signing but signing by way of assent to the terms of contract of alienation embodied in the document.
30 The fundamental plea of respondent no. 8 is in three fold. Firstly she challenged the will on the ground that the alleged will is manipulated and forged as same has been executed under the influence and force mischievously by the petitioner. Secondly, Smt. Anar Devi was not having any right to executed any will in respect of property No. A-50-A, Vivek Vihar, Delhi and lastly, that the suit property was allotted to Sh. Sujan Singh Sondhi and upon PC No. 194/10/01 Pushpa Sharma Vs State Page 15/20 his death the plot was mutated in favour of his real son Sh. Gurbux Singh on 27.5.1981. Thereafter as per policy of DDA for conversion it was applied for free hold by late Sh. I.P. Singh, Husband of respondent no. 8 and brother of petitioner, as purchaser.
31 Smt. Krishna Sharma, R8W1 appeared in the witness box and tendered her evidence by way of affidavit Ex. R8W1/X and relied upon the documents Ex. RW-1/A to Ex. RW-1/J which are the documents in the name of deceased late Sh. I.P. Sharma applied for conversion of the property in question with the DDA.
32 Ld. Counsel for the petitioner Sh. Santosh cross- examined her in detailed. She deposed that her father in law namely Sh. Hans Raj Sharma expired in the year 1992. The house in question was constructed in the year 1987. She made construction of one room on the second floor in 2006. The lengthy cross-examination was conducted on the point of right, title and interest of the parties. She deposed that Ex. PW-1/2 does not bear the signatures of her deceased, mother-in-law. However, she admitted the signatures of deceased, mother-in-law on Ex. R8W1/2, i.e Passport of the deceased. She further deposed that Gurbax Singh had executed a Will in favour of her husband, late Sh. I.P. Sharma, however, the same has not been filed on record.
33 She further deposed that her husband was having his own business of iron foundry and tool machines and consultancy and the said but same was grabbed by his sisters. Another business of alluminium plants at Karawal Nagar also grabbed. She denied the knowledge of the fact that late Sh. Hansraj Sharma, her PC No. 194/10/01 Pushpa Sharma Vs State Page 16/20 father in law paid a sum of Rs. 50,000/- by chque to Sh. Gurbax Singh . She did not produce any documentary proof of business of late Sh. I.P. Sharma, her husband. However, she denied the suggestion that her husband Sh. I.P. Sharma never purchased the property in question from Sh. Gurbux Singh.
34 The whole testimony of R8W1 Smt. Krishna concentrated on the right, title and ownership of the property in question. The affidavit Ex. R8W1/X has not deposed any fact with regard to averments made in the objections as highlighted hereinabove. There is no iota of any objection regarding the manipulation, pressure, influence by the petitioner on the deceased for execution of the Will Ex. PW-1/2. There is no deposition in the affidavit regarding the objection that any manipulation or forgery committed by the petitioner. As there is no description of any property in the alleged Will Ex. PW-2/1. She is silent on these vital and important objections taken by her. She diverted her testimony to the ownership of the property in question. In these circumstances, the law is well settled in the case titled as Talat Parveen Naqvi Vs Delhi Development Authority & Anr, 163. ( 2009), Delhi Law Times 622, Delhi High Court wherein it was held that :-
"It is settled law that Probate Court only determines genuineness of the Will. Grant of Probate does not confer any title on the person in whosoever favour probate is granted. A person is free to make Will in respect of any property, whether he owns it or not. A person can make Will in respect of his neighbour's properties or any Government land. There is no bar on making Will by a person of President's House or Red Fort. Merely because Will is a genuine Will neither the President's House nor the Red Fort would be owned by the legatee.PC No. 194/10/01 Pushpa Sharma Vs State Page 17/20
The title of the property in favour of the legator has to be established independent of the Will, before legatee can claim any right under a Will."
35 Now applying the above said principle laid down in the above said judgment Talat Parveen Naqvi Vs DDA & Anr ( SUPRA) the respondent no. 8 Smt. Krishna Sharma failed to prove the issue no. 2, therefore same is decided against her and in favour of the petitioner.
36 The petitioner examined herself as PW-1 and proved affidavit Ex. P1. She further proved the Will of deceased Smt. Anar Devi Ex. PW-1/2, Death certificate Ex. PW-1/1. In the cross-examination she admitted that the property in question was alloted to Sh. Gurubux Singh on 17.08.1981. She admitted that there is no document of sale in favour of deceased Anar Devi on record. She admitted that her brother deceased, Sh. I.P. Sharma applied to DDA for conversion of property in question. In the whole cross- examination only one suggestion on the Will I.e Will in question is forged and it was prepared at Noida where she resides was put. The rest of the cross-examination is on the application made by deceased late Sh. I.P. Sharma in DDA.
37 PW-2 Sh. Prem Kumar, attesting witness appeared in witness box and proved his affidavit as Ex. PW-2/A. In the cross- examination he deposed that Smt. Anara Singh used to come his office as her grand daughter Anu Sharma was working with him. He deposed that Will was prepared at the office of Sub-Registrar , Sector-16, Noida. At that time he, testatrix and another attesting witness Chander Shekhar and one more person was there. He further deposed that Will was signed by Smt. Anar Devi, himself at PC No. 194/10/01 Pushpa Sharma Vs State Page 18/20 two places and also by other witness. He denied all the suggestions put to him. He remained consistent, coherent withstood the test of cross-examination.
38 After examining the testimony of PW-1 & PW-2 as discussed hereinabove and the well settled law, accordingly to Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act one attesting witness is sufficient to prove the Will. The petitioner examined one attesting witness, who proved all the vital ingredients regarding the execution of Will Ex. PW-1/2 by deceased Anar Devi. He also established that the same was got registered at Sub-Registrar office, Noida. She further proved that the Will was signed by deceased Smt. Anar Devi and another attesting witness Sh. Chander Shekhar. In the cross-examination both the witnesses remained coherent, cogent and reiterated the fact as stated in the petition regarding the execution, registration and genuineness of the Will duly executed by the deceased Smt. Anar Devi.
39 On the basis of above discussion and observation issue no. 1 & 3 are decided in favour of petitioner and against respondent no. 8, Smt. Krishna Sharma.
40 In the present case, the petitioner has prayed for grant of Probate/Letter of Administration in respect of the Will dated 21.09.1996 executed by Late Smt. Anar Devi, however the perusal of the said Will ( Ex. PW-1/2) reveals that petitioner has 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 petitioner in accordance with the provisions of Section-222 of Indian Succession PC No. 194/10/01 Pushpa Sharma Vs State Page 19/20 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, the petitioner shall be entitled only to Letter of Administration in respect of the property mentioned in the said Will.
41 Relief In view of my findings on issue no. 1, 2 & 3, a Letter of Administration is granted in favour of the petitioner Smt. Pushpa Sharma and other daughters/legal heirs ie. Respondent no. 2 to 7 of the deceased Smt. Anar Devi in respect Will dated 21.09.196 as per their share mentioned above in respect of the immovable property bearing House No. A-50-A, Vivek Vihar, Delhi after obtaining requisite Court Fee and Administration Bond for a the valuation of the subject property as and when valuation report filed by the concerned SDM with one surety of like amount.
42 Further, the petitioner and respondent no. 2 to 7 are directed to file the inventory in respect of the immovable property in question within six months and final statement of account within one year from the date of receipt of formal letter of administration.
43 It further clarified that the question of title, share or ownership of movable property mentioned hereinabove is not decided by this Court.
File be consigned to the Record Room.
(Announced in the open (SANJAY KUMAR)
court on 11th May 2016 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 194/10/01 Pushpa Sharma Vs State Page 20/20