Delhi District Court
Sh. Arun Kapoor vs State on 1 March, 2014
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE
-12 (CENTRAL) DELHI.
PC-23/13/08
In the Matter of:
Sh. Arun Kapoor
S/o Late Sh. Des Raj Kapoor
R/o C-12, Kailash Colony,
New Delhi. .......Petitioner.
VERSUS
1. State.
2. Smt. Krishna Bhatia
D/o Late Sh. Des Raj Kapoor,
W/o Sh. H. K. Bhatia,
R/o H. No. 195, Sector-14,
Faridabad (Haryana).
3. Sh. Satish Kapoor,
S/o Late Sh. Des Raj Kapoor,
R/o C-314B, First Floor, Sushant Lok, Phase-II,
Gurgaon (Haryana)
4. Smt. Sanyongita Mehta
D/o Late Sh. Des Raj Kapoor
W/o Sh. P. G. Mehta
R/o 41, Kailash Apartments,
Kailash Colony, New Delhi.
PC-23/13/08 Page No. 1/23
5. Sh. Jayant Malhotra,
S/o Sh. R. N. Malhotra
C-201, 6, Aurangzeb Road,
New Delhi-110011.
6. Sh. Rohit Malhotra,
S/o Sh. R. N. Malhotra,
R/o 95 Stirrup Lane, Mutton Town,
New York 11791, USA.
7. Smt. Payal Rani
D/o Sh. Rakesh Anand
C/o Sh. Rohit Malhotra,
R/o 95 Stirrup Lane, Mutton Town,
New York 11791, USA.
8. Sh. Jatin Anand,
S/o Sh. Rakesh Anand
C/o Sh. Rohit Malhotra,
R/o 95 Stirrup Lane, Mutton Town,
New York 11791, USA.
9. Smt. Rita Kapoor
Wd/o Sh. Harish Kapoor,
10.Sh. Dhiraj Kapoor,
S/o Late Sh. Hartish Kapoor,
Both R/o 501, Ahlcon Apartments,
Sector-3, Vaishali, Ghaziabad (U. P.)
11.Ms. Shivali Kapoor
D/o Late Sh. Harish Kapoor,
R/o 150, Kohat Enclave,
Pitampura, New Delhi.
PC-23/13/08 Page No. 2/23
12.Smt. Punita Chopra,
D/o Late Sh. Harish Kapoor,
C-3/44, First Floor, Sushant Lok,
Phase-I, Gurgaon (Haryana). ......Respondents.
Date of Institution: 21.10.2008
Date of Assignment to this court: 07.05.2013
Date of Arguments: 19.02.2014
Date of Decision: 01.03.2014
JUDGMENT
1. This is a petition under section 276 of the Indian Succession Act, 1925 for grant of letter of administration in respect of Will dated 17.11.1987 of late Smt. Shanti Rani widow of Sh. Des Raj Kapoor filed by petitioner against the respondents. The brief facts of the case are that Late Smt. Shanti Rani Kapoor widow of Sh. Des Raj Kapoor was Hindu by birth and was ordinary resident of Delhi who executed a Will in her own hand-writing dated 17.11.1987 which was registered a document No. 4890, in Addl. Book No. III, Vol. No. 423 at paged 47- 49 dated 17.11.87 in the office of Sub-Registrar, Delhi in favour of petitioner. It was also stated that late Smt. Shanti Rani left behind the respondents No. 2 to 12 as her legal heirs and expired on 11.03.1998. It was also stated that Late Smt. Shanti Rani left behind the property bearing No. C-12, Kailash Colony, New Delhi PC-23/13/08 Page No. 3/23 which she bequeathed in favour of petitioner. It was also pleaded in petition that Late Smt. Kamla Anand, daughter of Late Sh. Des Raj Kapoor and mother of respondent No. 7 and 8 and Sh. Harish Kapoor son of late Sh. Des Raj Kapoor had expired during the life time of the deceased Smt. Shanti Rani Kapoor. It was also averred in petition that Smt. Shanti Rani Kapoor was having a sound disposing mind and she executed the said hand-written Will in her own handwriting in the presence of Sh. C. P. Kapoor son of Sh. Ram Lal Kapoor and Sh. S. C. Singhal, advocate, hence, it was prayed that probate/letter of administration in respect of the Will dated 17.11.87 be granted in favour of petitioner.
2. During proceedings, citation of the petition to the general public by way of publication in the daily newspaper was issued. Notice of the petition was also directed to be issued to the respondents and concerned Collector.
3. The publication of the citation was effected in the newspaper "The Statesman" on 29.10.2008.
4. During proceedings, none appeared on behalf of respondent No. 5 despite service, hence respondent No. 5 was proceeded ex-parte vide order dated 13.01.2009.
5. Respondents No. 9 to 12 filed their joint objection to the present petition stating that present petition is not maintainable as same is not in conformity with mandatory provisions of Section 276, 277, 279, 280 and 281 of Indian Succession Act. It was also stated that PC-23/13/08 Page No. 4/23 there is no legally enforceable and binding Will so alleged by petitioner and entire petition is nothing but a fraud and misrepresentations only. It was also stated that Smt. Shanti Rani widow of Late Sh. Des Raj Kapoor was a illiterate lady who was not conversant with the English or Hindi language and also the other details to be incorporated in the Will. It was also stated in reply that property in question was acquired from the ancestral funds and Late Shanti Rani was having no income at all from any source so even otherwise was not competent to execute any such alleged Will in respect of property not acquired and owned by the exclusively and independently. It was also averred in reply that witnesses so procured on false will are none else then persons acting on the dictates of petitioner. It was also stated that Late Smt. Shanti Rani during her life time was not capable to right even a letter to any relation so the question of writing any Will by her does not arise. It was also pleaded that all the time, under threats and humiliations, the petitioner Arun Kapoor was compelling his mother Smt. Shanti Rani to sign one or the other paper for which she was quite ignorant. Hence, it was prayed that petition so filed by petitioner be dismissed with costs.
6. Respondents No. 2 to 4 had filed their separate objections in the present petition stating that present petition is not maintainable as same is not in conformity with mandatory provisions of Section 276, 277, 279, 280 and 281 of Indian Succession Act. It was also stated PC-23/13/08 Page No. 5/23 that there is no legally enforceable and binding Will so alleged by petitioner and entire petition is nothing but a fraud and misrepresentations only. It was also stated that Smt. Shanti Rani widow of Late Sh. Des Raj Kapoor was a illiterate lady who was not conversant with the English or Hindi language and also the other details to be incorporated in the Will. It was also stated in reply that property in question was acquired from the ancestral funds and Late Shanti Rani was having no income at all from any source so even otherwise was not competent to execute any such alleged Will in respect of property not acquired and owned by the exclusively and independently. It was also averred in reply that witnesses so procured on false will are none else then persons acting on the dictates of petitioner. It was also stated that Late Smt. Shanti Rani during her life time was not capable to right even a letter to any relation so the question of writing any Will by her does not arise. It was also pleaded that all the time, under threats and humiliations, the petitioner Arun Kapoor was compelling his mother Smt. Shanti Rani to sign one or the other paper for which she was quite ignorant. Hence, it was prayed that petition so filed by petitioner be dismissed with costs.
7. Petitioner had also filed reply to objections of respondents No. 2 to 4 and 9 to 12 thereby denying the contents of objections and reiterating the contents of petition.
8. Thereafter, respondents No. 2, 3, 4 had filed their separate no PC-23/13/08 Page No. 6/23 objections in the present matter stating that they filed objections through Sh. H. L. Kapoor and Sh. Ashish Kapoor, Advocates in respect of petition as they did not see the original Will. It was further stated that they have now seen the original Will on record and therefore is not interested to pursue the objections. It was also stated that they admit the writing and signature on Will dated 17.11.1987 which belong to their mother. Hence, it was prayed that objections dated 05.02.2009 filed by them be dismissed as withdrawn and they have no objections, if probate/letter of administration of Will dated 17.11.1987 is granted to the petitioner.
9. Respondent No. 6 had filed no objection stating that contents of Will are true and correct and said Will is the last and valid Will of Late Smt. Shanti Rani. It was also stated that respondent No. 6 has no objection, if the letter of administration is granted to petitioner in respect of said Will.
10.Respondent No. 7 and 8 had also filed objection to the present petition wherein it was stated that alleged Will is a result of fraud, forgery and is not legally tenable and enforceable document. It was stated that Late Smt. Shanti Rani was in illiterate lady who could not write English or Hindi except putting her signature, therefore, the question of her executing the alleged Will in her own hand writing does not arise at all. It was also averred that Late Smt. Shanti Rani expired on 11.03.1998 and present petition has been filed almost after 10 years of her death, only when all the legal heirs of Late Smt. PC-23/13/08 Page No. 7/23 Shanti Rani started asking for the partition of the estate of Late Smt. Shanti Rani. It was also stated that deceased had no independent income of her own and the property in question was acquired by her through ancestral fund. Hence it was prayed that present petition be dismissed with costs.
11.Petitioner had also filed reply to objections of respondent No. 7 and 8 thereby denying the contents of objections and reiterating the contents of petition.
12.On the pleadings of parties, the following issues were framed vide order dated 13.11.2009:-
1) Whether the Will dated 17.11.1987 propounded by the petitioner is the last Will and testament of deceased Smt. Shanti Rani Kapoor and was executed by her in sound disposing state of mind?OPP
2) Whether petitioner is entitled to the grant of probate/Letters of administration of Will dated 17.11.1987?OPP
3) Relief.
13.In evidence, petitioner had produced three witnesses including himself as PW-1 namely Sh. Arun Kapoor who had relied upon several documents. Sh. C. P. Kapoor was examined as PW-2 and Sh. S. C. Singhal, Advocate was examined as PW-3. All the witnesses of petitioner were duly cross-examined and thereafter, P.E. was closed by petitioner.
14.In defence, respondents had produced Mrs. Punita Chopra as RW-1. Thereafter, opportunities were granted to respondent to lead further PC-23/13/08 Page No. 8/23 evidence, however same was not availed despite opportunities including last opportunity, hence R.E. was closed by court on 12.09.2013.
15.During proceedings of present petition, an application was filed U/o 39 Rule 1 and 2 CPC and Ld. District Judge, after hearing the arguments, vide its order dated 09.04.2012 had disposed off the said application and restrained the petitioner from selling, creating any third party interest in the property in question till the disposal of probate petition.
16.I have gone through the records and have heard the arguments of petitioner. My issue-wise findings are given below:-
17.Issue No. 1. Whether the Will dated 17.11.1987 propounded by the petitioner is the last Will and testament of deceased Smt. Shanti Rani Kapoor and was executed by her in sound disposing state of mind?OPP and Issue No. 2. Whether petitioner is entitled to the grant of probate/Letters of administration of Will dated 17.11.1987?OPP:- Both these issues are taken up together as they are inter-connected. The onus to prove these issues was on the petitioner. Before proceeding to decide this issue, I would like to discuss the relevant law and judgments on this point. Section 278 of Indian Evidence Act deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the PC-23/13/08 Page No. 9/23 administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
18.Section 2(h) of the Indian Succession Act describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes executable after the death of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.
2) The testator, while executing the will, was in a sound and disposing state of mind.
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, fear or force when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vs. State. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Chandan Vs. Longa Bai."
PC-23/13/08 Page No. 10/23In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
19.Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
20.Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign 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 testator, 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 testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the PC-23/13/08 Page No. 11/23 direction of the testator, or has received from the testator a personal acknowledgment of his signatures of such other person; and each of the witnesses shall sign the Will in the presence of the testator 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."
21. So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to PC-23/13/08 Page No. 12/23 Gullan Devi Vs. Mst. Punu @ Puran Devi AIR 1989 J&K 51. In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three PC-23/13/08 Page No. 13/23 illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR 578. The decisive aspect is to ascertain as to whether the Will is genuine PC-23/13/08 Page No. 14/23 and duly executed by testator so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of-course the reasonable restrictions imposed by the civilized society in various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound PC-23/13/08 Page No. 15/23 disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
22.The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is PC-23/13/08 Page No. 16/23 determined according to that intention."
Similarly, in P. Manavala Chetty V. P. Ramanujan Chetty, it has been further held as under:
"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of PC-23/13/08 Page No. 17/23 collateral circumstances."
23. In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
24. Now I have to see whether in the present case the above principles have been duly made out or not. I have perused the Will. First of all, the Will dated 17.11.1987 is duly registered Will with office of Sub- Registrar. The Will in question is Ex. PW-2/1, death certificate of deceased Shanti Rani Kapoor is Ex. PW-1/1, list of assets of deceased Shanti Rani Kapoor is Ex. PW-1/2, list of near relations of deceased Shanti Rani Kapoor is Ex. PW-1/3. All these documents are available on record and have been duly proved by petitioner. Rather, the will in question is not typed but is hand-written document in the handwriting of deceased. The deceased Shanti Rani Kapoor had died on 11.03.1998. She had died after near about 11 years of execution of the Will so it can be presumed that she was in good health and cognitive faculties were in tact. No contra record has been produced by objectors. Initially, respondent No. 2 to 4 had filed their objections in the present matter for grant of probate/letter of administration in favour of petitioner, however later on, later on, PC-23/13/08 Page No. 18/23 they have withdrawn the objections and had given no objection qua present petition in favour of petitioner stating that they filed objections through Sh. H. L. Kapoor and Sh. Ashish Kapoor, Advocates in respect of petition as they did not see the original Will. It was further stated that they have now seen the original Will on record and therefore is not interested to pursue the objections. It was also stated that they admit the writing and signature on Will dated 17.11.1987 which belong to their mother and prayed that objections dated 05.02.2009 filed by them be dismissed as withdrawn and they have no objections, if probate/letter of administration of Will dated 17.11.1987 is granted to the petitioner. Respondent No. 6 had also filed no objection stating that contents of Will are true and correct and said Will is the last and valid Will of Late Smt. Shanti Rani. It was also stated that respondent No. 6 has no objection, if the letter of administration is granted to petitioner in respect of said Will. Only respondent No. 7 to 12 are contesting the present petition. PW-1 in his evidence has stated that Late Smt. Shanti Devi was running business under the name and style of M/s Des Raj Kapoor & Sons and was an income tax assessee. PW-1 further identified the signature and thumb impression of his mother Smt. Shanti Devi and stated that he had seen her signing and writing. PW-2 Sh. C. P. Kapoor who is attesting witness of the Will has deposed that they had signed the Will in presence of each other. Rather, PW-2 had denied the suggestion put to him during cross-
PC-23/13/08 Page No. 19/23examination that Smt. Shanti Rani was not in sound disposing state of mind at the time of execution of Will or that Will was not executed with the consent of Smt. Shanti Rani. PW-3 Sh. S. C. Singhal, Advocate, has also deposed in the same fashion and had stated that the Will Ex. PW-2/1 in the very first instance was signed by Shanti Rani and thereafter by him and thereafter by Sh. C. P. Kapoor. PW-3 further stated that Will was signed by Shanti Rani, himself and C. P. Kapoor before presentation of the Will for its registration before the Sub-Registrar and Will was signed again by all of us when the Will was presented before the Sub-Registrar for its registration. Rather he had denied the suggestion put to him that Will Ex. PW-2/1 is not in the handwriting of Shanti Rani or that same was written at the instance of petitioner. When execution of Will by deceased Shanti Rani Kapoor in his own handwriting has already been proved by producing PWs and onus has been discharged qua proving of execution of Will thus now onus shifts upon objectors to disprove the execution of Will in own handwriting of deceased. However, the objectors had failed to prove that Will was not executed in own handwriting of deceased. The objection has also been raised by objectors in respect of para added in last page of Will in Hindi by Sh. S. C. Singhal, Advocate, which fact has also been admitted by Sh. S. C. Singhal, however same is not relevant and objection to that does not hold water at all as objectors have failed to prove that Will has not been validly executed by deceased and addition of para in PC-23/13/08 Page No. 20/23 handwriting of an advocate does not mean that Will has been forged and fabricated. Even if this paragraph would not have been there, it had not vitiated the Will. This para was with respect to endorsement that Will has been signed in each other's presence which otherwise has been deposed so. It has further been argued by counsel for objectors that Sh. S. C. Singhal, Advocate had handled 2/3 cases on behalf of petitioner so he was interested witness though this fact has been denied in cross-examination of PW-3. Still otherwise, there is no bar that if an Advocate who had handled litigation of some person, cannot stand witness in any legal document/Will of said person. This is his profession and he can provide any kind of legal service to his client as per law under parameters of his profession. On the other hand, objectors have produced only single witness i.e. RW-1 Mrs. Punita Chopra as self-serving statement who had relied upon family settlement Ex. RW-1/P-1. RW-1 in her cross- examination has admitted that her grandmother organized her marriage and her Kanya daan on her marriage was performed by her paternal uncle i.e. petitioner. RW-1 had also stated that neither she nor her mother ever made any complaint with any authority for the maltreatment given by the petitioner to my grand mother. She had also not deposed much about execution of the Will by deceased and had failed to create any dent to the evidence lead by the petitioner. The petitioner has examined both attesting witnesses and perusal of Will Ex. PW-2/1 shows that same is a in Hindi handwriting PC-23/13/08 Page No. 21/23 and rather, same is registered document. The formation of words in the Will as well as in the signatures from the bare look clearly shows that both are same and both have been written by the same person. The testimony of PWs had remained un-rebutted, unchallenged and un-controvered as objectors have failed to create dent to the veracity and authenticity of the Will in question and objectors have failed to establish that Will was executed by deceased in absence of sound disposing mind. Accordingly, I find no reason to disbelieve the version of PWs and the petitioner is entitled for the relief as claimed in present petition. In view of the above, no suspicious circumstances can be attached to the Will in question and disposition made in the Will are not unnatural, improbable and unfair. So, I held that the Will dated 17.11.1987 is true and depicts real intention of executant and is genuine, last testamentary disposition of deceased. However, perusal of Will shows that no executor was appointed hence probate cannot be granted and letter of administration is to be issued. Accordingly, the case is made out in favour of petitioner for grant of letter of administration. Both the above issues are decided in favour of petitioner and against the respondents/objectors.
25.Relief:- In view of the above finding, the petition is allowed. Letter of administration be issued in favour of petitioner in respect of estate of deceased to enable the petitioner to administer the property of deceased. It be accordingly granted after completion of PC-23/13/08 Page No. 22/23 required formalities in this context i.e. filing of requisite court fee, administration bond alongwith one surety bond of the amount of valuation in accordance with law. This file be consigned to record room.
Announced in the open court on (AJAY GOEL)
01.03.2014 ADJ-12(Central)Delhi.
All pages from No. 1 to 23 have been signed by me.
PC-23/13/08 Page No. 23/23