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2017 Supreme(Del) 4291
IN THE HIGH COURT OF DELHI AT NEW DELHI
SANJEEV SACHDEVA, J.
Vijay Nagar – Petitioner
Versus
State & Ors. – Respondents
TEST. CAS. No. 79 of 2012
Decided On : 18-09-2017
For the Petitioner:Mr. Ashish Mohan and Mr. Mohit Kumar, Advocates
For the Respondent: Mr. D.P. Kaushik, Adv.
Grant of Letter of Administration and exemption from furnishing an Administration Bond under section 291 of the Indian Succession Act, 1925
Headnote:
Indian Succession Act - Grant of Letter of Administration - Section 278 of the Indian Succession Act, 1925 - Section 291 - Summary: The court granted the petitioner, the elder daughter, a Letter of Administration in respect of the Will and Testament of late Sh. Banarasi Dass Sharma dated 07.08.1997. The court also exempted the petitioner, who was the sole beneficiary under the Will, from furnishing an Administration Bond under section 291 of the Act.
Fact of the Case:
The petitioner filed a petition under Section 278 of the Indian Succession Act, 1925 for grant of Letter of Administration in respect of the Will and Testament of late Sh. Banarasi Dass Sharma. The deceased had executed a Will dated 07.08.1997, and the petitioner, his elder daughter, sought the Letter of Administration.
Finding of the Court:
The court allowed the petition and granted the petitioner the Letter of Administration. The court also exempted the petitioner, who was the sole beneficiary under the Will, from furnishing an Administration Bond under section 291 of the Act.
Issues: Grant of Letter of Administration, Validity of the Will, Requirement of Administration Bond under section 291 of the Act
Ratio Decidendi: The court found that the petitioner had proved the due and valid execution of the Will, and the death of the deceased. The court also held that requiring the sole beneficiary to furnish an Administration Bond under section 291 would lead to absurd consequences, and thus granted exemption to the petitioner from executing an administration bond.
Final Decision: The petition was allowed, and the petitioner was granted the Letter of Administration. The petitioner was exempted from executing an administration bond under section 291 of the Act.
SANJEEV SACHDEVA, J.
1. The petitioner has filed this petition under Section 278 of the Indian Succession Act, 1925 (hereinafter referred to as the Act) for grant of Letter of Administration in respect of Will and Testament dated 07.08.1997 of late Sh. Banarasi Dass Sharma.
2. Shri Banarasi Dass Sharma expired on 26.12.2009.
3. At the time of his demise, late Sh. Banarasi Dass Sharma was permanent resident of A-6/170A Janta Flats, Paschim Vihar, New Delhi.
4. Shri Banarasi Dass Sharma is stated to have left immoveable property situated at New Delhi and within the territorial jurisdiction of this court.
5. As per the petitioner, the deceased Shri Banarasi Dass Sharma executed his last Will and Testament on 07.08.1997, which was signed and executed on 11.08.1997.
6. The Will dated 11.08.1997 was registered vide Regn. No. 19467 in Addl. Book No. III, Vol. 2912 on pages 91 to 92 on 11.08.1997 in the office of Sub-Registrar-I.
7. The deceased late Sh. Banarasi Dass Sharma was Hindu by religion and at the time of his death was survived by his wife Smt. Gianwati and two daughters Smt. Vijay Nagar and Smt. Veena Nagar @ Jyoti Nagar.
8. The petition seeking Letter of Administration has been filed by the elder daughter Smt. Vijay Nagar.
9. Notice was issued in the petition. Citation was published in Jansatta (Hindi Edition) on 25.12.2012 and The Statesman (English Edition) on 27.12.2012.
10. The respondent no. 3 i.e. Smt. Veena Nagar @ Jyoti Nagar entered appearance through counsel on 12.07.2013 and sought time to file reply. Four weeks’ time was granted to file reply, however, no reply was filed.
11. On 28.01.2014 counsel for Smt. Veena Nagar @ Jyoti Nagar – respondent no. 3 sought further time to file objections. Further four weeks’ time was granted to respondent no. 3.
12. Respondent no. 2 who had been served but had not entered appearance was proceeded exparte on 28.01.2014.
13. Further time was sought by respondent no. 3 to file objections within four weeks, which was granted by order dated 10.07.2014. Even that order was not complied with.
14. On a contention of counsel for respondent no. 3 made on 08.09.2014 that objections could not be filed as certified copy was not received from counsel for the petitioner. Further opportunity of four weeks was granted to file objections.
15. Objections were filed by Respondent No. 3 but they were defective and were returned by the Registry under defects. The defects were not cured.
16. None appeared for Respondent on 31.10.2014 and accordingly Respondent no. 3 was proceeded exparte. The petition was listed for arguments on 17.12.2014.
17. Respondent no. 3 filed an application seeking setting aside of the order proceeding exparte. By order dated 16.02.2016, in view of the fact that repeated opportunities had been granted to the respondent to file objections and no objections were filed, no ground was found for recalling of the order. The application was dismissed. Thereafter the petition was placed for recording of evidence of the petitioner to prove the Will.
18. Respondent No. 3 did not take any further steps and accordingly order dated 16.02.2016 became final.
19. Petitioner has led his evidence and has examined two witnesses.
20. PW1 Sh. R.C. Tomar, one of the attesting witnesses of the Will and PW2 is the petitioner herself.
21. Sh. R.C. Tomar (PW1) in his evidence affidavit has stated as under:
1. I state that Banarasi Dass Sharma had executed a registered Will which was scribed by me on 07.08.1997 upon his instructions and executed and registered on 11.08.1997 in my presence and I am one of the witnesses to the same.
2. I state that I had signed the said Will, which was scribed on 07.08.1997 and executed and registered on 11.08.1997 as a witness at the request of Late Shri Banarasi Dass Sharma who had admitted the same to be his last will and testament. Will dated 11.08.1997 is marked as PW1/1.
3. I state that Banarasi Dass Sharma first affixed his signature to the will in my presence and after him Sh
