Rajinder Kumar vs State and Others

Manmohan Singh, J.—This petition has been filed by the petitioner under Sections 276 and of the Indian Succession Act, 1925 seeking grant of probate of the entire estate of Late Shri Chander Pal (hereinafter referred to as the deceased). As per the averments made in the petition, the deceased died on 13.01.2006 at his fixed place of abode at House No. G-13, Arjun Nagar, Delhi-110051. A copy of the identity card issued by the Election Commission of India on 28.02.1995 whereby the said address of the deceased is mentioned. Copy of the death certificate of the deceased,. During his lifetime the deceased had made a Will dated 28.04.2005 of his moveable and immoveable assets, which was his last Will and testament, and the same was registered in accordance with law.

Further, it is stated in the petition that by way of the said Will dated 28.04.2005 the deceased bequeathed all his moveable and immoveable assets in favour of the petitioner herein including the property being House No. G-13, Arjun Nagar, Delhi-110051 which was the self acquired property of the deceased. The deceased upon his death, left behind the following legal heirs:

(i) Smt. Vimla Devi-wife of the deceased (respondent No. 2),

(ii) Shri rajinder Kumar-son (petitioner),

(iii) Shri Rakesh Kumar-son ( respondent No. 3) and

(iv) Smt. Anjana Jain-daughter (respondent No. 4).

It is further averred in the petition that the respondent No. 2 to 4 were not given any right in the estate of the deceased as he was harassed by the respondent Nos.2 to 4 herein. The deceased had made several formal complaints to the concerned authorities in this regard. He even issued a Notice dated 02.07.2004 in a National daily i.e. Rashtriya Sahara whereby the general public was put to notice that the deceased has severed all his relations with respondent Nos.2 to 4 herein.

The respondent Nos.2 to 4 filed their objections to the present petition stating that the Will dated 28.04.2005 is a forged and fabricated document, however, it appears from the order sheets that they failed to lead any evidence in support of their defense. Vide order dated 02.04.2008 this Court passed a status -quo order in respect of the property being House No. G-13, Arjun Nagar, Delhi. But, the respondent Nos.2 to 4 created third party interest in the said property. Thus the petitioner filed CS (OS) No. 515 of 2010 seeking cancellation of the said transaction. Further, contempt proceedings were also initiated against the respondent Nos.2 to 4, which are also pending this Court and the respondent Nos.2 to 4 have been served through publication.

In the present case, the petitioner lead his evidence by way of affidavit Ex. PW 1/A wherein he proved the following documents:

(i) Exhibit P-1/1- Copy of the identity card issued by the Election Commission of India on 28.02.1995.

(ii) Exhibit P-1- Copy of the death certificate of the deceased.

(iii) Exhibit P-1/2- Copy of the said Will dated 28.04.2005.

(iv) Exhibit P-1/3- Copy of the receipt dated 16.10.1980 for a sum of Rs. 20,000/-.

(v) Exhibit P-1/4(Colly) & Exhibit P-1/5- Copies of the formal complaints of the deceased against the respondents Nos.2 to 4 and the Public Notice dated 02.07.2004 respectively.

(vi) Exhibit P-1/6- Copy of the paper book of the suit for declaration filed by respondent No. 3 before the Court of the Civil Judge, Karkardooma Courts, Delhi.

(vii) Exhibit P-1/7- & Exhibit P-1/8- Copies of the reply to the Notice dated 23.12.2005 and the anticipatory bail order dated 21.04.2005 respectively.

(viii) Exhibit P-1/9 (Colly)- Copies of the electricity bills in respect of the property in question.

The Will dated 28.04.2005 is attested by the witness namely Shri Garib Ram and Shri Ramesh Chand. Shri Garib Ram, who is also PW-2 in this case, proved during his examination in chief that the deceased appended his signatures in the office of the Sub-Registrar in his presence, out of his own free will. The testimony of the said witness has not been converted by the respondents.

Citation of these proceedings have been effected in "The Statesman" dated 30.09.2011. Valuation report in respect of property being House No. G-13, Arjun Nagar, Delhi has also been received by the Sub-Divisional Magistrate of the area.

I have heard the counsel for the parties, perused the pleadings and the documents placed on record. From the order dated 15.10.2009, it is clear that despite various opportunities give by the Court to cross-examine PW-1, Mr. Rajinder Kumar, the respondents failed to do so and their right to cross-examine PW-1 was closed. Therefore, the testimony of said PW-1 is taken as correct deposition.

In view of the above, the petition is allowed and probate is granted to the petitioner in respect of the Will dated 28.04.2005 of the deceased subject to the petitioner filing a surety bond and necessary court fees. The petition stands disposed of.