Delhi High Court
Simrit Singh vs State Of Delhi & Ors on 24 May, 2012
Author: A.K. Pathak
Bench: A.K. Pathak
$~19
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TEST.CAS. 56/2010
Decided on 24th May, 2012
SIMRIT SINGH ..... Petitioner
Through :Mr. Mukul Dhawan, Adv. `
with petitioner in person
Versus
STATE OF DELHI & ORS ..... Respondents
Through :Ms. Priyam Mehta, Adv.
with respondent no. 3 in
person.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J. (ORAL)
1. Petitioner has filed this petition under Section 276 read with Section 222 of the Indian Succession Act, 1925 (for short hereinafter referred to as the "Act") for grant of probate of Will dated 10th May, 2006 of Late Shri Gautam Singh (for short hereinafter referred to as "Testator").
2. As per the petition, Late Shri Gautam Singh died on 19 th June, 2010. At the time of his death testator was a permanent resident of Delhi. He has left behind petitioner, Mr. H.B. Singh and Ms. Jasvinder Kaur, as his legal heirs. Petitioner is mother of the TEST CAS 56/2010 Page 1 of 6 testator; whereas respondent No.2 Mr. H.B. Singh and respondent No.3, Ms. Jasvinder Kaur are father and widow of testator. State has been impleaded as respondent no. 1. Testator had solemnized court marriage with the respondent no.3 on 11th February, 2003 at New Delhi, in presence of the witnesses. At the time of her marriage, respondent no.3 was a divorcee with six years old child. After sometime, relations between the testator and his wife, that is, respondent no.3, became sour and she walked out of the matrimonial home sometime in the month of August, 2003. Testator owned and possessed a Fixed Deposit Receipt (FDR) of `43,00,000/- (Rupees Forty Three Lacs Only) issued by HDFC Bank, South Extension, Part II Branch, New Delhi. Testator was also maintaining a Saving Bank Account with the same bank, wherein a sum of `1,08,308/- (Rupees One Lac Eight Thousand Three Hundred and Eight Only) was lying deposited at the time of death of testator. Details of the FDR and Saving Bank account have been given in para 6 of the petition. It is alleged that Testator had made a Will dated 10th May, 2006 declaring to be his last Will and testament. Will dated 10th May, 2006 was made by the testator in the presence of two attesting witnesses, namely, Brigadier (Retd.) D.S. Khurana and Dr. Priti Sarin Dhawan. By virtue of this Will, TEST CAS 56/2010 Page 2 of 6 testator has bequeathed all his moveable assets to his mother, that is, the petitioner.
3. After service of notice, respondent nos. 2 and 3 have appeared in Court. Respondent no. 2 has not opposed the grant of probate of Will dated 10th May, 2006 to petitioner. He has filed his "No Objections". As regards respondent no. 3, initially she filed „objections‟ on 13th January, 2011.
4. Issues were framed on 26th July, 2011. However, subsequently matter was referred to the Delhi High Court Mediation and Conciliation Centre, where petitioner and respondent no. 3 have arrived at an amicable settlement which has been recorded in the Settlement Agreement dated 28th April, 2012. In view of the settlement, respondent no. 3 sought permission to withdraw her „objections‟ by filing an application being IA No. 8761/2012 under Section 151 Code of Civil procedure, 1908 (for short "CPC"). This application has been allowed vide order dated 11th May, 2012 and respondent no. 3 has been permitted to withdraw „objections‟, inasmuch as, issues have been recalled.
5. Since only movable assets are involved in this case, no "Valuation Certificate" is required from respondent no. 1.
6. Respondent no. 3 is present in Court today and she has re- iterated that she has no objection, in case probate of the Will is TEST CAS 56/2010 Page 3 of 6 granted to the petitioner. It may also be noted that citation was also published in the newspapers "The Statesman" English edition and "Dainik Jagran" Hindi edition to inform the general public about the Will and also inviting objections, if any, from them. No one has filed any objection, to the grant of probate.
7. Petitioner has stepped in the witness box as PW1 and has tendered her affidavit in evidence, which has been marked as mark "C-1". She has corroborated the averments made in the petition, which have been narrated, in brief, in the preceding paras hereinabove. Death Certificate of the testator has been proved as Ex. PW1/1. Medical records of the testator have been proved as Ex. PW1/2 to Ex. PW1/5. Marriage Certificate of the testator and respondent no. 3 has been proved as Ex. PW1/6. Will dated 10 th May, 2006 has been proved as Ex. PW1/7. Copy of the original FDR has been proved as Ex. PW1/8; the letter issued by HDFC Bank stating therein that `1,08,308/- (Rupees One Lac Eight Thousand Three Hundred Eight Only) is lying in the Saving Bank account of the testator has been proved as Ex. PW1/9.
8. One of the attesting witnesses to the Will, namely, Brigadier (Retd.) D.S. Khurana has also stepped in the witness box as PW2 and has tendered his affidavit which has been marked as mark "C- TEST CAS 56/2010 Page 4 of 6 2". He has categorically deposed that testator was a permanent resident of house No. G-8, 1st Floor, South Extension Part - II, New Delhi - 110049. Testator has executed a Will dated 10th May, 2006 voluntarily, without any influence or under any pressure from any source or person, in a sound health and disposing mind, in his presence and in the presence of the witness. This was the last Will and testament of the testator. The Will dated 10th May, 2006 was duly signed by the testator as well as the attesting witnesses, that is, himself and Dr. Priti Sarin Dhawan in presence of each other. Statements of both these witnesses have remained unchallenged, inasmuch as, there is no opposition to the grant of probate.
9. No executor has been named in the Will by the testator. Accordingly, in my view, probate of the Will cannot be granted. Section 222 of the Act provides that probate can only be granted to an executor appointed by the Will. However, Section 232 of the Act provides that when deceased has executed 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 testator or before he has proved the Will or executor dies after having proved the Will but before he has administered all the estate of the deceased, an universal or a residuary legatee can be admitted to prove the Will, and "Letters of Administration" with the Will TEST CAS 56/2010 Page 5 of 6 annexed can be granted to him in respect of the whole estate. It is Section 278 of the Act which deals with the applications for "Letters of Administration". Petitioner is the beneficiary under the Will. Accordingly, present petition is treated under Section 278 of the Act.
10. From the evidence adduced by the petitioner, in my view, she has succeeded in proving that the testator had executed the Will Ex.PW1/7 and the same is his last Will and testament, accordingly, I do not find any impediment in granting "Letters of Administration" with the Will dated 10th May, 2006 annexed, to the petition.
11. For the aforesaid reasons, "Letters of Administration" with the Will dated 10th May, 2006 annexed is granted to the petitioner, subject to however, her paying requisite Court Fee and furnishing Administrative Bond with one surety, to the satisfaction of Registrar General of this Court.
12. Petition is disposed of in the above terms.
A.K. PATHAK, J.
MAY 24, 2012 rb TEST CAS 56/2010 Page 6 of 6