Delhi District Court
Sh. Suresh Kumar Sharma vs The State on 23 January, 2020
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-01
SHAHDARA DISTRICT, KARKARDOOMA COURTS: DELHI.
Presided by :SH. VINEET KUMAR
PC No.33/2018
Sh. Suresh Kumar Sharma,
S/o late Daulat Ram Sharma,
R/o C-36, Anand Vihar,
Delhi-110092 .....Petitioner
Versus
1. The State
(Govt. of N.C.T. of Delhi)
2. Smt. Naveen Sharma,
W/o Shri R.K.Sharma,
R/o C-5-C/32C, Janakpuri,
New Delhi
3. Smt. Neelam Sharma,
W/o Shri R. K. Sharma,
R/o 1349, Sector-4,
Urban Estate, Gurgaon,
Haryana.
4. Smt. Anita Sharma,
W/o Shri B. K. Sharma,
R/o C-35, Ekta Nagar,
Barielly, U.P.
5. Smt. Shushma Bhardwaj,
W/o Shri J. R Bhardwaj,
R/o H. No. 137A, UNA Enclave,
Mayur Vihar, PH-I, Dehli ....Respondents
P. C. No. 33/18 Sh. Suresh Kumar Sharma. Vs. The State & Ors. Page no. 1/10
Date of Institution : 11.09.2018
Arguments heard on : 21.11.2019
Date of decision : 23.01.2020
JUDGEMENT
1. This is a petition u/s 276 of the Indian Succession Act. The petition is filed seeking probate of the Will dated 30.08.2014 executed by late Smt. Shanti Devi Sharma. Late Smt. Shanti Devi Sharma is the mother of the petitioner.
2. It is also contended that the deceased has one son-petitioner and four daughters i.e. respondent no. 2 to 5. The father of petitioner late Shri Daulat Ram Sharma had predeceased her mother. He expired on 24.09.1989. It is further contended that respondent no.2 to 5 relinquish their share in the aforesaid plot in favour of the deceased and petitioner in equal proportion and a registered relinquishment deed dated 08.01.1990 was executed by respondent no.2 to 5 in favour of deceased and petitioner. A conveyance deed dated 20.06.2002 ( as document No.3414, Book No.1, Volume No. 655, on page 92 to 93 dated 22.06.2002, with the office of Sub registrar-VIII, Delhi) was executed in favour of deceased and petitioner, thereby deceased and the petitioner became joint owner of the property in question having equal share in the property.
3. The deceased Smt. Shanti Devi Sharma died on 07.09.2016. It is pleaded that she was owner of built up property bearing no. C-36, Measuring Area 180 Sq Yards situated in Railway Board Employees Co-operative House P. C. No. 33/18 Sh. Suresh Kumar Sharma. Vs. The State & Ors. Page no. 2/10 Building Society Ltd, know as Anand Vihar, Delhi-110092 jointly with the petitioner. Before her death, she executed a Will dated 27.08.204 in favour of petitioner in the presence of two attesting witnesses namely Sh. Rajesh Goel and Shri Sushil Kumar. By the said Will the testatrix bequeathed property bearing C-36, Anand Vihar, Delhi-110092 in favour of the petitioner. At the time of her death, the deceased was having fixed place of abode at C-36, Anand Vihar, Delhi- 110092 which falls within the jurisdiction of this court.
4. It is further contended that the testator had died on 07.09.2016 leaving behind the petitioner (son) as the only surviving legal heir. The said Will is the first and last testament executed by the deceased Smt. Shanti Devi Sharma and the petitioner is the legatee/ beneficiary of the said Will. The cause of action arose on 27.08.2014 when the testarix executed a Will in favour of petitioner and again arose on 07.09.2016 when the testarix had expired. Hence, the petitioner prayed for grant of probate of the Will.
5. Citation was ordered to be published and notices were also ordered against the respondents. All the respondents were served, however ld. Counsel representing R-2 has orally submitted that R2 asked him to file memo of appearance on her behalf, but did not come forward to sign vakalatnama. Thus, R2 was well aware of this proceeding and can be deemed to be served. The petitioner got published the citation in "Rashtriya Sahara" issue dated 16.10.2018. No caveat is entered thereupon.
6. In response to the notice issued to the State, the office of SDM, Vivek Vihar had furnished the valuation report P. C. No. 33/18 Sh. Suresh Kumar Sharma. Vs. The State & Ors. Page no. 3/10 of the immovable property i.e. C-36, Anand Vihar, Delhi- 110092. The value of the property is mentioned at Rs.2,24,05,251.61/-. None from the State appeared nor filed any objections.
7. It is further contended that R3 to 5 have filed their no objection and also contended that R2 to 5 had already executed a relinquishment deed in favour of the petitioner and petitioner's mother.
8. To prove the Will, petitioner examined two witnesses. Petitioner examined himself as PW1 reiterating the petition averments in his affidavit Ex.PW1/A. He relied on Original Death certificate of Smt. Shanti Sharma at Ex.PW1/1; Original Will dated 27.08.2014 at Ex.PW1/7 bearing thumb impression of Smt. Shanti Devi Sharma at Point A and that of witnesses at Points B and C; Photostat copy of Adhar Card of deceased at Ex. PW1/2 and Aadhar Card of petitioner at Ex.PW1/3; Death certificate of Shri Daulat Ram Sharma is at Ex. PW1/4; certified copy of registered relinquishment deed dated 08.01.1990 is at Ex. PW-1/5; Copy of conveyance deed dated 22.06.2002 is at Ex. PW1/6 and original Will dated 27.08.2014 is at Ex. PW1/7.
9. Petitioner examined another witness Sh. Sushil Kumar as PW-2 who is an attesting witness to the Will. He supported the deposition of PW-1. He deposed in his affidavit and identified thumb impression of Smt. Shanti Devi Sharma on the Will Ex.PW1/7 at Point A and his signatures at point C. Petitioner closed his evidence.
10. The respondent State neither appeared nor objected the petition by filing its objections. There are no P. C. No. 33/18 Sh. Suresh Kumar Sharma. Vs. The State & Ors. Page no. 4/10 rival claims consequent to publication of the citation.
11. Perused the Will. The testatrix claimed in the Will that she is the owner and in possession of the property bearing no. C-36, Anand Vihar, Delhi-110092 jointly with the petitioner.
12. The testatrix has not appointed any administrator or executor in the Will but directly assigned the same to the petitioner. Thus, a letter of administration can be granted as per law. The deceased Smt. Shanti Devi Sharma had permanent abode fixed within the jurisdiction of this court. The property mentioned in the Will also falls within the territorial jurisdiction of this court.
13. 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 arguments, it has been admitted by the counsel for the petitioner that no executor has been appointed in the Will by the testator (mother of the petitioner herein). Accordingly, probate cannot be granted. However, Section 232 of the Act provides that when testator has made a will, but has not appointed an executor, or testator 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, 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 him of the whole estate. It is Section 278 of the P. C. No. 33/18 Sh. Suresh Kumar Sharma. Vs. The State & Ors. Page no. 5/10 Act which deals with the applications for letters of administration. The petitioner before this court is the beneficiary under the will dated 27.08.2014 Accordingly, by virtue of Section 232 read with Section 278 of the Act, the present petition is treated as one under Section 278 of the Act ( Sanjay Suri v. State & Ors. 2003 (71) DRJ 446).
14. The proposition of law is well settled that while deciding a petition under Section 276 or 278 of the Act, this court is acting as a probate court. The jurisdiction of the probate court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the proceedings and construction of a will relating to the right, title and interest of any other person is beyond the domain of the probate court (Krishna Kumar Birla v. Rajendra Singh Lodha. (2008) 4 SCC
300)
15. What is germane for this court to decide is whether the will in question is a genuine will and whether testator Smt. Shanti Devi Sharma was of sound mind at the time of signing and attestation of the will. It is the duty of the propounder of the will to prove the will in question in accordance with law. Before this court proceeds further holding whether the will is a genuine or false, forged and fabricated will, an extremely important aspect which cannot be lost sight of is that one of the attesting witnesses to the will namely, Shri Sushil Kumar, has deposed in favour of the will and for grant of probate in favour of the petitioner.
16. Hon'ble High Court relied upon the ratio of the Hon'ble Supreme Court's judgment in M.B. Ramesh (Dead) P. C. No. 33/18 Sh. Suresh Kumar Sharma. Vs. The State & Ors. Page no. 6/10 by LRs v.K.M. Veeraje Urs (Dead) by LRs and Ors, (2013) 7 SCC 490, with respect to the validity and proving of will. A will has to be executed in the manner required by Section 63 of the Act. Section 68 of the Indian Evidence Act, 1872 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.
17. 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 testator, 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 testator 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 testator, or has received from the testator a personal acknowledgement 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 testator, but it shall not be necessary that more than one witness be P. C. No. 33/18 Sh. Suresh Kumar Sharma. Vs. The State & Ors. Page no. 7/10 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."
18. It is observed that the respondent Nos. 2 to 5 have led no evidence to prove that the will in question is a forged and fabricated will. It is also observed that the respondent Nos. 2 to 5 failed to lead any evidence to prove that at the time of signing and registration of the will, the testator was not in good physical health and his mental state was questionable. The respondents have not raised any claim whatsoever of suspicious circumstances. Thus, this court holds that nothing has been elicited with regard to the execution, attesting of the will and as well as to the state of health and mental soundness of the testator to execute the P. C. No. 33/18 Sh. Suresh Kumar Sharma. Vs. The State & Ors. Page no. 8/10 will.
19. This court observes that the examination of the witnesses namely PW-1 and PW-2 has proved the Will as per requirement of Section 68 Evidence Act. The testimony of PW-1 & 2 coupled with the original documents corroborates the case of petitioner. The petitioner has established the execution and attestation of the Will as per law. Respondent no. 2 to 5 had already made a registered relinquishment deed in favour of petitioner. The total value of the property bearing No. C-36, Anand Vihar, Delhi-110092 is Rs.2,24,05,251.61 as per the valuation report furnished by SDM, Vivek Vihar, Delhi and the same has not been objected by any of the parties. In the instant case, execution and attestation of the Will is proved on record.
20. In view of the above factual and legal position, I hold that the petitioner has proved that Smt. Shanti Devi Sharma duly executed the will dated 27.08.2014 in favour of the petitioner and respondent no. 2 to 5 had already relinquished their rights. Hence, the following order:
ORDER Let the letters of administration of the estate of Smt. Shanti Devi Sharma (deceased) comprising of properties viz., bearing No. C-36, Anand Vihar, Delhi-110092 with the copy of the will dated 27.08.2014 annexed be granted to the petitioner with the seal of this court in the form set forth in Schedule VII of the Act and also, subject to completion of requisite formalities, such as:
P. C. No. 33/18 Sh. Suresh Kumar Sharma. Vs. The State & Ors. Page no. 9/10
(a) furnishing ad-valorem court fees on the total value of the above properties, and
(b) furnishing of an administration bond by the petitioner along with the bond of one surety each.
File be consigned to record room only after completion of all necessary compliances and due formalities, Digitally signed as per Rules. VINEET by VINEET KUMAR KUMAR Date:
2020.01.23 15:39:53 +0800 Typed to the dictation directly, (Vineet Kumar) corrected and pronounced in Additional District Judge-01, open court on 23.01.2020 Shahdara/KKD Courts, Delhi.
P. C. No. 33/18 Sh. Suresh Kumar Sharma. Vs. The State & Ors. Page no. 10/10