Swaran Singh v. State

ORDER (ORAL) % lA No.9861/2012 In view of the fact that the petitioner has since placed on record the original Will dated 23.03.2007, the present application for summoningof the witness as mentionedin the applicationto prove the certifiedcopy of the aforesaidWill has become infructuous. Dismissed as infructuous. TEST CAS.43/2011

¶1The petitioner has filed the present petition under Section 272 of the Indian Succession Act, 1925, seeking probate of the Will dated

23.3.2007 of Late Sh.Om Prakash Sahni.

¶2It is averred in the petition that the deceased Late Sh.Om Prakash Sahni died on 31.1.2008, leaving behind a Will dated

23.3.2007, whereby he bequeathedhis immovableproperty bearing Khasra No.259/2, measuring 5 Bighas 11 Biswas situated in Village Rangpuri,TehsilMehrauli,New Delhi infavourofthe petitioner.The Will dated 23.3.2007 is stated to be executed by the testator in the presence of two witnesses, namely, Sh.Manjit Singh and Sh.Satish Grewal.

¶3Noticeofthe filingof thepetitionwas issuedto the Stateand to Sh. Siddhanth Sahni, son of the deceased testator, the only legal heir left behindthe testator,in responseto which Sh. SiddhanthSahni has filed his 'No Objections' to the grant of probate in favour of the petitioner. Publicationof citationwas also got effectedin the Delhi edition of the 'Statesman' dated 23.01.2012, copy whereof is placed on record. No objectionwhatsoeverto the grant of probatein respect of the Will dated 23.3.2007 have been received from members of generalpublic.Noticewas also issuedto the concernedChiefRevenue ControllingAuthorityfor ValuationReport, which has_ been received from the Tehsildar, Vasant Vihar, valuing the property bearing No.259/2 (5-11), Village MalikpurKhoi, Tehsil Vasant Vihar, New Delhi to be in the sum of Rs.61,28,125/-.

¶4Petitioner has tendered in evidence his affidavit by way of evidence,and affidavitbyway of evidenceof Sh.ManjitSingh,one of the attestingwitnessesto the Will,whichare exhibitedas Ex. PW 1/A and Ex. PW 2/A respectively.PWl, Sh. Swaran Singh, the petitioner herein,inhis evidencebyway of affidavit,Ex. PW 1/A, has reiterated the contents of the petitionand proved on record the original death certificate of the deceased as Ex. PW 1/1 and the 'No Objection' fik by the son ofthe deceasedtestatoras Ex. PW 1/2.

¶5PW2, Sh. Manjit Singh, in his evidence tendered by way of affidavit, Ex.PW 2/A, has deposed that he knew the deceased personallyas he was workingwithhim. He statedthatthe testatorLate Sh.OmPrakashrequestedthe deponentto cometo his residenceas he intended to execute a Will in favour of Sh. Swaran Singh and requested the deponent to sign as one of the witnesses. On the morning of the next day, the deponentreachedthe residenceof the testatorand thereafter,the testatoralongwiththe deponentwent to the officeof the Sub Registrar,Kapashera,New Delhi. The Will was got draftedby one ofthe advocatesand the photographofthe testatorwas affixed on the Will. PW-2 further deposedthat the deceasedtestator was mentallyand physicallyfit and was ofsoundmindto executethe Will and had signed the Will at two places in the presence of the witnesses,who had also signed in the presenceof the executant.He identifiedthe signaturesofthe testatoron the Will at Points 'A' and 'B'. The deponentidentifiedhis own signatureson the Will at I'oints 'C and 'D', and the signatureofthe other attestingwitness,namely, Sh. SatishGrewal,who also signedin the presenceofthe deponentas well as the executant at Point 'E'. He deposed that the Will was executedby the testatorwithout any pressure, coercion or fraud on him, in any manner. Original Will dated 23.3.2007was proved on recordby PW2as Ex PW 2/1.

¶5The evidence of the petitioneris um-ebutted on record. The only legal heir of the testator, Sh.SiddharthSahni has filed his 'No Objection' to the grant of probate of the will propounded by t petitioner,duly supportedby an affidavit,admittingthe genuineness, authenticityand correctnessofthe Will dated 23.3.2007,executedby his father in favour of the petitioner.

¶6In view of the aforesaid, the due execution of the Will dated

23.3.2007 of Late Sh. Om Prakash Sahni stands established on record. This Court is satisfied that the testator - Shri Om Prakash Sahni at the time of the executionof the Willwas of sound disposingmind andhad executedthe Will in the presenceof the attestingwitnessesand the attestingwitnesseshad signedthe Will in the presenceof the testator and in the presence of each other. The Will in question is duly witnessedand registeredin the officeof Sub-Registrar-IX,New Delhi videRegistrationNo.232in bookNo.3, VolumeNo.420atpages20 to 21 on 23.03.2007. Thoughprobateof the Will in questioncannotbe granted to the petitionerin view of the statutory bar contained in Section 222 of the Indian SuccessionAct, there is no impediment in grantingLetters of Administrationwith Will annexed in his favour. Furthermore,the petitioneris the only beneficiarynamed in the Will with respectto the propertymentionedthereinand is not requiredto furnishadministration/suretybond as envisagedunder Section291 of the Indian SuccessionAct, 1925, in light of the judgments of this Court rendered in the cases of Richa Pardeshi Vs. State, 2012 (139) DRJ 92 and SanjaySuri Vs. Stateand Ors.,AIR 2004DELHI 9.

¶7Accordingly,the presentpetitionis allowedby grantingLetters ofAdministrationinrespectofthe Will dated23.03.2007infavourof the petitioner in respect of the property mentioned in the Will,^ exemptingthepetitionerfrom furnishingofanAdministrationBond.

¶8Thepetitionstandsdisposedof inthe aboveterms. OCTOBER 08, 2012 K

REVA KHETRAPAL, J. T "?>V° $-30. * IN THE HIGH COURT OF DELHI AT NEW DELHI + TEST.CAS. 43/2011 SWARAN SINGH Petitioner Through: Mr. Pramod Ahuja with Mr. Gaurav Sharma, Advocates % versus STATE Through: CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI ORDER

23.08.2013 Respondent LA. No.13208/2013 This application has been filed by the petitioner to seek modification/clarificationin the order dated 08.10.2012,whereby probate was granted by this court in respect of the registered will dated 23.03.2007 of late Sh, Om Prakash in favour of the petitioner. The submission of petitioner is that the testator had bequeathed his agricultural land which was 10/57 share in the land admeasuring28 Bighas 10 Biswas, details whereof are mentioned in the will itself The petitioner submits that even though the will itself mentions that the said share is equal to 5 Bighas, due to typing/clerical error in the petition, the petitioner had / incorrectly mentioned the area as 5 Bighas 11 Biswas. The petitioner submits that on account of the said error, in the final order dated 08.10.2012 granting probate, the area of the land has been mentioned as 5 Bighas 11 Biswas, whereas the same should be 5 Bighas only. I have perused the original will Exh. PW-2/1. The said will mentions the area of the land bequeathedas 5 Bighas. The error committedby the petitioner in noting the said area as 5 Bighas 11 Biswas is patent. The petitioner is seeking reduction of the area to 5 Bighas and, therefore, no prejudice can be sufferedby any other person. The petitionerhas already depositedthe court fees on the basis of the valuationreport for 5 Bighas 11 Biswas. In these circumstances,I am inclinedto allow this application. The area of the land bequeathedbe read as 5 Bighas in place of 5 Bighas 11 Biswas in the order dated 08.10.2012. Since the petitioner is not seeking refund of any part of the court fees, no fresh valuation report is necessary and the probate be drawn on the court fee filed by the petifioner, if the same is found to be in accordance with the valuation already placed on record. Application stands disposed of.

VIPIN SANGHI, J. AUGUST 23, 2013 sr

IN THE HIGH COURT OF DELHI AT NEW DELHI + TESTCAS.43/2011 SWARANSINGH Petitioner_ Through: Mr. Pramod Ahuja, Advocate. Versus STATE Respondent Through: None. DateofJudgment:8"^ October,2012 CORAM: HON'BLE MS. JUSTICE REVA KHETRAPAL