Mrs. Jamuna Moorjani vs State

S. Ravindra Bhat, J.—The present proceeding seeks probate of Will of late Sh. Hari Ram Shivlani (hereafter called "the testator"), executed on 03.05.1993. The Will has been exhibited as Ex. P-2.

The petitioner is the daughter and one of the legal representatives of the testator, who is pre-deceased by his wife, Smt. Savitri Devi on 25.06.1990. The testator had five issues, i.e. the petitioner and Respondent Nos. 2 to 6. It is submitted that the testator bequeathed his immovable properties to the petitioner and all his other daughters, i.e. Respondent Nos. 2 to 5. The testator''s son - Sh. Jai Prakash Shivlani arrayed as the sixth respondent was a limited beneficiary under the Will though he was not entitled to any immovable property or share in it.

The petition averments are that the testator died on 10.05.1994; a Death Certificate issued by the Municipal Corporation of Delhi (MCD) has been placed on record and marked as Ex. P-1. The petitioner relies upon the Will and submits that it was duly attested by two witnesses and also witnessed by Sh. Kailash Narain, who had drafted the Will. At the time of filing the petition, Sh. N.K. Jha, one of the attesting witnesses had deposed in support of the proceedings by an affidavit dated 23.08.1994; the same is part of the record. Apparently, the said attesting witness died during the course of the proceedings.

After notice was issued to the other parties/relatives, Respondent Nos. 2 to 5, who are the petitioner''s sisters, caused appearance to be entered before the Court and filed affidavits on 15.03.1995, recording their no-objection; these no-objections were in the form of written statements duly supported by affidavits. Since one of the attesting witnesses was untraceable, and the other, Sh. N.K. Jha expired during the proceedings, the petitioner examined Sh. Kailash Narain, who deposed on affidavit, on 30.11.2009. The same was tendered on 01.12.2009. The witness, PW-2 stated that the Will (Ex. P-2) had been signed by the testator in his presence. PW-2 identified the signatures of the testator; he also deposed that the same was signed in the presence of two witnesses, Sh. N.K. Jha and Sh. M.N. Rakheja in his presence and that all of them, i.e. he and the two attesting witnesses had signed on the Will in the presence of each other.

By an order dated 22.03.2004, the petitioner had confined the relief in respect of the immovable property described in Clause 1 of the Schedule (to the petition), i.e. the flat at Punjabi Bagh, Delhi. The only son of the testator, Sh. Jai Prakash Shivlani, who was arrayed as the sixth respondent did not enter appearance and was set-down ex-parte by an order dated 09.11.2009.

Having considered the materials, the Court is of the opinion that the petitioner has proved the due execution of the Will (Ex. P-2 which is also a registered one), which confers equal rights to the petitioner and Respondent Nos. 2 to 5 in all the properties except some movables (which have fallen to the share of the sixth respondent). The Will does not appoint any executor. The deposition of PW-2, Sh. Kailash Narain, who was present at that time, corroborates the petition averments. Similarly the unchallenged affidavit of Sh. N.K. Jha, who had deposed at the time the petition was filed, in accordance with Section 281 of the Indian Succession Act also substantiates the petitioner''s contention.

As noticed earlier, the Will does not nominate an Executor. In terms of Section 234 of the Indian Succession Act, 1925, the petitioner cannot claim probate but would be entitled to Letters of Administration.

In view of the above discussion, it is held that the petitioner is entitled to administer the estate of late Sh. Hari Ram Shivlani, in accordance with the Will (Ex. P-2). Let Letters of Administration (with Will attached) be issued in her favor subject to her furnishing Administration & Surety bonds and valuation within eight weeks (based on objective material as on the date the present proceedings were filed, i.e. in 1994).

TEST.CAS. 44/1994 is allowed in the above terms.