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2018 Supreme(Del) 2530
IN THE HIGH COURT OF DELHI AT NEW DELHI
G.S. SISTANI, SANGITA DHINGRA SEHGAL, JJ.
Rajinder Mehra - Petitioners
Versus
Rajesh Tuli And Anr. - Respondents
FAO(OS) 335 of 2016
Decided On : 07-08-2018
For the Petitioners:Mr. Arvind Bhatt and Mr. Kuber Giri, Advocates.
For the Respondents:Mr. Ripu Daman Bhardwaj, CGSC and Mr. T.P. Singh, Advocate .
The grant of probate decides the genuineness of the will and the executor's right to represent the estate.
Headnote:
Probate - Property Mutation - Indian Succession Act 1925 - Section 276, 333, 334 - The court discussed the probate of a will and the mutation of property based on the Indian Succession Act 1925. It highlighted the legal provisions under Section 276, 333, and 334 and their interpretations, emphasizing that the grant of probate decides the genuineness of the will and the executor's right to represent the estate.
Fact of the Case:
The appellant sought mutation of a property after the grant of probate of a will, but the executor refused to provide the required affidavit, causing a delay in the mutation process.
Finding of the Court:
The court found that as per the office order No.5/2009, it is not necessary for the Executor to provide the letter as per office order No.3/89, subject to the applicant providing the certified copy of the Will and the probate.
Issues: Delay in property mutation due to the executor's refusal to provide the required affidavit.
Ratio Decidendi: The court held that the grant of probate decides the genuineness of the will and the executor's right to represent the estate, and based on the office order No.5/2009, the executor's letter as per office order No.3/89 was not necessary.
Final Decision: The appeal was disposed of accordingly, allowing the mutation of the property without the executor's letter as per office order No.3/89.
G.S. SISTANI, J.
1. The present appeal is directed against the order dated 05.09.2016 passed by the learned Single Judge of this Court, by which an application being I.A. No.2697/2016 filed under Section 151 CPC has been rejected.
2. In this case, probate of a will of late Sh.Vidya Bhushan Mehra who died on 30.09.1984 was granted on 28.01.1985. Post the grant of probate the appellant had approached the L&DO for mutation of the property. L&DO called upon the appellant/applicant Rajinder Mehra to file an affidavit of the Executor of the Will stating that he had no beneficial interest in the bequeathed property, and consequently, he had handed over possession of the property to the beneficiary.
3. Admittedly, as submitted by counsel for the appellant, on account of family discord, the Executor of the said Will is not cooperating with the appellant and the executor has refused to provide the affidavit and for this reason the mutation is being held up.
4. Counsel for the L&DO has relied upon an office order to justify calling upon the appellant to file an affidavit of the executor. Copy of the office order No.3/89 dated 15.02.1989 has been handed over which reads as under:-
“No.24(7)/76-CDN
Date 15.02.1989
Office Order No. 3/89
Subject :-Substitution on the basis of Letter of Administration granted by the Court under Section 276 of Indian Succession Act 1925.
It has been observed that in certain cases the lessee leave behind a will bequeathing the property in favour of one of his legal heirs and appoint another person or the beneficiary himself/herself as Executor for the purpose of the Administration of the property and this office mutate the property in the name of the Executor/Administrator till he executes an assent deed under Section 333 and 334 of the Indian Succession Act 1925.
The matter has, therefore, been reviewed in consultation with the Assistant Legal Adviser and it has been decided as follows:
1. When the beneficiary and the Executor/Administrator is one and the same person the property should be mutated straightway in favour of the beneficiary in accordance with the will.
2. In cases where the Executor/Administrator happens to be another person, but he gives us a letter that he has no beneficial interests in the bequeath property and has also handed over the possession of the property to the beneficiary the property Will be mutated in the name of the beneficiary without insisting upon the assent deed as the assent given by the Administrator is sufficient to the vesting of beneficial interest and legal title to the beneficiary in accordance with the will.
(Krishan Gopal)
Public Relations Officer”
5. Counsel for the appellant has handed over another office order No.5/2009 dated 29.05.2009 which deals with the substitution on the basis of a ‘Will’. Same is also reproduced below:-
“No.24(735)09/CND/167
Date 29.05.2009
Office Order No. 5/2009
Sub :-Substitution on the basis of a ‘Will’.
As per the existing policy for substitution on the basis of a ‘Will’ by lessee, in case of death of the lessee, no objection affidavits of all legal heirs of the deceased lessee are required to determine the genuineness of the ‘Will’. If that is not possible, the beneficiaries are asked to got the ‘Will’ probated through a Competent Court of Law. In case of certified copy of probate is submitted, affidavits, death certificate or other documents are not required. Now the DDA has decided to dispense with the requirement of NOC from all other family members or legal heirs.
This issue has been examined in consultation with M/o Law & Justice & in view of judicial announcements. M/o Law has opined, that a probate means a copy of the will certified under the seal of a competent court with a grant of administration of the estate to the executor of the Testator. A probate granted by a competent court is conclusive evidence of the validity of the ‘Will’ until it is revoked and no evidence can be admitted to impeach it except in a proceeding to revoke
