Pushpa Rani and Others vs State and Others

A.K. Pathak, J.—By this petition u/s 276 of the Indian Succession Act, 1925 (hereinafter referred to as the "Act"), petitioners have prayed for grant of probate of Will dated 15th March, 2007 executed by Late Shri Dev Raj Sokhal (hereinafter referred to as "Testator"). Earlier, petitioner no. 1 had preferred a petition u/s 270 and 276 of the Act before the District Judge, Delhi being Probate Petition No. 35/2008. Since one of the properties was situated outside Delhi, the said probate petition was disposed of as withdrawn vide order dated 7th October, 2009 passed by the Additional District Judge with liberty to the petitioner to file a fresh petition on the same cause of action within one month in the court of competent jurisdiction. Hence the present petition.

Petitioner no. 1 is widow and petitioner no. 2 is son of Testator. Respondent nos. 2 and 4 are sons; whereas respondent no. 3 is daughter of Testator. It is alleged in the petition that the Testator died on 25th April, 2007 at Delhi after a brief illness. Before his death, Testator executed a Will dated 15th March, 2007, whereby he bequeathed all his immovable and movable properties/assets in favour of petitioner no. 1 during her lifetime. After her death the immovable property was to devolve on all the legal heirs i.e. petitioner no. 2 and respondent nos. 2 to 4, in the ratio as detailed in the Will. Details of the properties have been mentioned in Annexure D.

Respondents have been duly served. Respondent nos. 2 to 4 have filed affidavits stating therein that they have no objection in case probate of the Will is granted to the petitioners.

Citation has been published in two newspapers i.e. "The Times of India" (English edition) and "Navbharat Times" (Hindi edition) both dated 3rd February, 2010. However, no one has filed any objection opposing the grant of probate to the petitioners pursuant to the said publication

Valuation report in respect of Gurgaon property has been received from SDM, Gurgaon. However, valuation report in respect of Delhi property has yet not been received from the concerned authorities

Petitioners have led evidence. Petitioner no. 2 has examined himself as PW1. He has filed his affidavit in evidence wherein he has corroborated the averments made in the petition. He has deposed that he is well conversant with the facts of the case. He is son of Late Shri Dev Raj Sokhal. Testator was residing at S-325, Ground Floor, G.K. II, New Delhi - 110048 before his death. Testator died on 25th April, 2007 after a brief illness at Delhi. Death certificate of the Testator has been proved by him as PW1/1. He has further deposed that he is one of the beneficiaries under the Will executed by the Testator. The Will Ex.PW1/2 was executed at Delhi and was the last Will of the Testator. Vide the Will dated 15th March, 2007 Testator had bequeathed all his immovable and movable properties/assets in favour of the petitioner no. 1 during her lifetime and after her death the immovable property is to be divided in the ratio as described in the Will amongst all the legal heirs, that is, petitioner no.2 and respondent nos. 2 to 4. He being one of the beneficiaries was competent to file the present petition. Testator had left behind five legal heirs being the petitioners and respondent nos. 2 to 4 and there was no other Class-I heir of the testator. Schedule of the properties, in respect whereof probate has been sought, has been marked as PW1/4 in his affidavit. He has further deposed that there was no impediment for grant of probate/letter of administration of Will dated 15th March, 2007 in favour of the petitioners.

One of the attesting witness to the Will namely, Mr. Bharat Prasad Singh, has been examined as PW2. He has deposed in his affidavit that Testator was known to him for the last twenty five years. He was his neighbour. Late Shri Dev Raj Sokhal executed the Will dated 15th March, 2007 in his presence and in presence of Mr. Arun Kumar Singh. All of them were present at the time of execution of the Will and they had signed the Will in presence of each other. Late Shri Dev Raj Sokhal was physically and mentally fit at the time of execution of the Will.

From the statements of the witnesses more particularly, PW2, in my view, petitioners have succeeded in proving that Late Shri Dev Raj Sokhal had executed the Will dated 15th March, 2007 (Ex.PW1/2) in sound disposing mind and same is the last Will and Testament of the Testator.

Section 222 of the Act envisages that probate shall be granted only to the "Executor" appointed by the will. Sub-Section 2 of Section 222 of the Act further provides that the appointment may be expressed or by necessary implication. In the present case, no named Executor is there in the Will. It is also not the case of petitioners that "Executor" had been appointed by the testator. If that is so, then probate in respect of the Will Ex. PW1/2 cannot be granted. However, Section 228 of the Act envisages for grant of "Letters of Administration with a copy of Will annexed? in case Will has been proved and deposited in a Court of competent jurisdiction. Thus, in my view, "Letters of Administration with a copy of Will annexed? can be granted to the propounder of the Will. In this case, petitioners have propounded the Will and have proved the same, thus, "Letters of Administration" has to be granted to them.

For the foregoing reasons, Letters of Administration with a copy of Will annexed is granted to the petitioners in respect of Will dated 15th March, 2007 of Late Shri Dev Raj Sokhal, subject to their paying requisite Court Fee, valuation of Delhi properties and furnishing the Administrative Bond with one surety to the satisfaction of Registrar General. Petition is disposed of in the above terms.