K.M.S. Khan v. State

* IN THE HIGH COURT OF DELHI AT NEW DELHI ^4 Date of decision: 05*'' May, 2010 + Test Case No.37/2007 K.M.s: KHAN Petitioner Through i\/ls. Reema Kaira, Adv. versus STATE Respondent Through jvjr. Harish jVjalhotra,Sr. Adv. with Ms. Tanuj Khurana, Adv. for R-2 & 4. Mr. Rajshekhar Rao, Adv. for Ms. Anju Kapoor & Ms. Kamlesh Mal<er Ms. Sujata Kashyap, Adv. with Ms. Deepa Tiwari, Adv. for R-7. CORAM: HON'BLE MS. JUSTICE GITA MITTAL

¶1Whether reporters of local papers may be allowed to see the Judgment?

¶2To be referred to the Reporter or not? A/o

¶3Whether the judgment should be reported in the Digest? A/o . GITA MITTAL. I (Oral)

¶1The present petition has been filed under Section 276 of the Indian Succession Act, 1925 for grant of probate of the Will dated 9'^May, 2006 of late Shri Vishwanath Khanna, son of late Shri Ram Narain stated to be permanent resident of 8-B, Rajpur Road, Delhi. The petition has been filed by Shri K.M.S. Khan who was appointed executor under the said Will and testament.

¶2The petitioner has given the details of the survivinglegal heirs of the deceased Shri Vishwanath Khanna in para 5 of the petition. Notices of the petitionwere duly issued to these legal heirs. Notices of the petitionwere also issued to the Chief Controlling Revenue Authority and public notice was -1 - directed and published in the newspaper "Statesnnan", (Delhi, Pune and Bangalore Edition) by the order passed on July, 2007.

¶3The record shows that notices were duly served and the legal heirs have put in appearance in the matter. Public notice was also published as directed. No objections have been received from any member of the public.

¶4It requires to be noticed that objections to the said Will were originally filed by three daughters of the deceased namely Mrs. Kamlesh Maker, Ms. Rajni Suri & Ms. Anju Kapur and two sons Shri Mahesh Khanna and Shri Mukesh Khanna.

¶5The legal heirs of the deceased Shri Vishwanath Khanna were referred to mediation by an order dated 22"^^ December, 2009 passed in CS (OS) NO.113A/2001. With the intervention of mediator of the Delhi High Court Mediation & Conciliation Centre, the parties have arrived at a settlement which has been placed on record in the said suit, also listed today.

¶6In view of the settlement arrived at between the parties, the objectors in the present case namely Mrs. Kamlesh Maker, Ms. Rajni Suri & Ms. Anju Kapur, Shri Mahesh Khanna & Shri Mukesh Khanna, sought permission_to withdrawthejajiLe. These legal heirs also filed affidavitsacceptingthe due V execution and validity of the Will dated 9*^^ May, 2006 as having been duly executed by Late Shri Vishwanath Khanna as his last Will and testament. It is stated on their behalf that they have no objection if the probate of the said Will is granted to the petitioner. Shri Mahesh Khanna and Shri Mukesh Khanna also filed affidavits to this effect. As such, all objections which had been in the present case were permitted to be withdrawnby the order dated 23'^^ April, 2010.

¶7The petitioner has stated that late Shri VishwanathKhanna executed his last Will and testament on 9'^ May, 2006 (Exh.PW 1/1) with regard to his -2-V, entire estate in the presence of Shri Rajinder Singh and Shri Dev Sharma'/ who are attesting witnesses thereto. The Will was registered vide RegistrationNo.2276 in Book No.3 Volume No.606 at pages 123 to 130 with the office of the Sub-Registrar at Kashmere Gate, Delhi. The original registered Will has been enclosed with the present petition.

¶8Perusal of the Will Exh. PW 1/1 would show that the testator Shri Vishwanath Khanna had appointed Shri K.M.S. Khan, the petitioner herein as ^ ^ the executgrjD-t-t-he-WiH.

¶9Late Shri Vishwanath Khanna is stated to have expired on the 7'^ January, 2007. The original death certificate issued by the Municipal Corporation of Delhi has been proved on r,ecord as Exh. PW 3/1.

¶10The petitioner has enclosed with the petition as annexure 'C a list of all movable and immovable properties which form the estate of late Shri Vishwanath Khanna which are the subject matter of the bequests made by him in the aforesaid Will.

¶11Shri Rajinder Singh jyala and Shri Dev Sharma have appeared before this court on 24'^ April, 2010 as PW 1 & PW 2 respectively and have supported their testimonies which were filed in the form of affidavit evidence (Exh. PW 1/A and PW 2/A respectively). The affidavits have been sworn on 23"^^ April, 2010. Both the witnesses have explained their respective intimacy with the deceased Shri Vishwanath Khanna. It is stated that Shri Vishwanath Khanna had already got his Will and testament (Exh.PW 1/1) prepared when he had called the said two witnesses. Apart from these two persons, Smt. Brij Rani Khanna, widow of the testator, Shri K.M.S. Khan-the present petitioner and one Shri U.K. Maurya are also stated to have been present at the time of execution of the said Will.

¶12In their depositions, the witnesses confirm that the testator had -3 - signed the Will on 9^^ May, 2006 on each page of the document in their presence at his residence. PW 1-Shri Rajinder Singh Jyala and PW 2-Shri Dev Sharma thereafter signed the Will as witnesses in the presence of the testator and each other.

¶13The two attesting witnesses had accompanied the testator Shri Vishwanath Khanna to the office of the Sub-Registrar No.l at Kashmere Gate, Delhi along with Smt. Brij Rani Khanna and Shri K.M.S. Khan. For the reason that the deceased testator was unable to climb stairs and no lift was I available,the Sub-Registrarwas requestedto cometo the groundfloor. Shri Vishwanath Khanna is stated to have duly submitted an application in this if behalfwhich was presentedby Shri K.M.S. Khan on 9*^^ May, 2006. The Sub-Registrarfully satisfied himselffrom Shri Vishwanath Khanna about the due execution of the Will and thereafter obtained the signatures and thumb impressions of the testator as well as the attesting witnesses. The Sub-Registrar made the endorsement of registration of the Will only thereafter.

¶14Perusal of the Will would show that the testator has carefully drawn ^ the same and made bequests of his movable and immovable properties thereunder. The petitioner has duly proved the execution of the Will dated \K.. 9'^ of May, 2006 (Exh.PW 1/1) by late Shri VishwanathKhanna as his last Will and testament in the presence of the attesting witnesses PW 1 & PW 2.

¶15All legal heirs of the deceased testator have made statements confirmingthe valid execution and confirmedthat the same is the last Will -— I and testament of the deceased Shri Vishwanath Khanna.

¶16In view of the above, it is held that the document dated 9^'' May, 2006 is the validly executed last Will and testament of Shri VishwanathKhanna who died at Delhi on the 7^^ of January, 2007. The deceased has also appointedShri K.M.S. Khan the petitionerherein,as the executorof the said -4-L Will. \ Issue no.l is accordingly answered in favour of the petitioner. I, accordingly, direct issuance of the probate of the Will dated 9'^ of May, 2006 (Exh.PW 1/1) to the-petltioner subject to his furnishing the requisite administration bond and one surety bond as well as the depositing the court fee with regard to the valuation of the properties which form part of the estate of the Will. This petition is allowed in the above terms. GIT/5/MITTAL, J MAY 05, 2010 aa -5-