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IN THE HIGH COURT OF DELHI AT NEW DELHI
MANMOHAN, J.
S. Surjit Singh Sahani - Appellant
Versus
State & Anr - Respondent
Test Case No. 27 of 2018; Interlocutory Application No. 6245 of 2018
Decided on : 21-02-2019
Indian Succession Act - Probate - Section 276 - Summary of Acts and Sections: Indian Succession Act, 1925, Section 276, Section 69 of the Indian Evidence Act, 1872 - The court discussed the requirements for proving a will under Section 69 of the Indian Evidence Act, 1872 and the conversion of the petition to Letters of Administration with Will annexed under Section 232(a) of the Indian Succession Act, 1925.
Fact of the Case:
The petition was filed under Section 276 of the Indian Succession Act, 1925 for grant of probate in respect of a Will dated 27th April, 1987. The deceased, Mrs. Gian Kaur, had executed the Will leaving the property to her nephew. The attesting witnesses to the Will had expired, and the petitioner sought to prove the Will under Section 69 of the Indian Evidence Act, 1872.
Finding of the Court:
The court found that the petitioner had succeeded in proving that the testatrix had executed the Will dated 27th April, 1987, and the Will was her last valid will and testament. However, as no executor had been appointed in the Will, the court converted the petition to Letters of Administration with Will annexed in accordance with the judgment in Preethi Swaminathan Vs. Govt. of NCT of Delhi & Others, 2018 SCCOnLine(Del) 9949.
Issues: The issues involved the proof of the Will under Section 69 of the Indian Evidence Act, 1872 and the conversion of the petition to Letters of Administration with Will annexed due to the absence of an executor in the Will.
Ratio Decidendi: The court applied the provisions of Section 69 of the Indian Evidence Act, 1872 to determine the proof of the Will and relied on the judgment in Preethi Swaminathan case to convert the petition to Letters of Administration with Will annexed.
Final Decision: The court allowed the petition and granted Letters of Administration with a copy of the Will dated 27th April, 1987 annexed thereto in favor of the petitioner, enabling him to administer the estate of deceased Mrs. Gian Kaur.
Manmohan, J.
Today in Court, learned counsel for petitioner has handed over an additional affidavit of Smt. Maninder Kaur, real sister of the testatrix, which is taken on record.
2. It is pertinent to mention that present petition has been filed under Section 276 of Indian Succession Act, 1925 for grant of probate in respect of Will dated 27th April, 1987, of late Mrs. Gian Kaur wife of late Shri S. Rattan Singh Khanpuri.
3. In the petition it has been averred that the petitioner is the sole beneficiary under the Will dated 27th April, 1987 and is the nephew of the testatrix, late Mrs. Gian Kaur wife, who expired on 02nd April, 2011 in New Delhi. The testatrix is stated to have executed a registered Will dated 27th April, 1987, which was duly attested by Late S. Rattan Singh Khanpuri (husband of the testatrix) and Mr. S. Bhola (Advocate of the testatrix). The Will dated 27th April, 1987 executed by the testatrix is reproduced herein below:-
“WILL
This deed of Will and testament of Shrimati Gian Kaur wife of S. Rattan Singh Khanpuri (Aged about 60 years), R/o 32/2 East Patel Nagar, New Delhi is executed in Delhi on this 27th Day of April, 1987.
Life is short and uncertain, God knows when it may come to end. Hence I with my free will and consent, without any pressure, duress, influence and compulsion from any quarter, I am making this Will in good health and sound mind. Whereas I am owner and in possession of the following property:
One building bearing No. 32/2, area 200 sq.yds. situated in East Patel Nagar, New Delhi, with lease hold rights vide registered sale deed No. 10951, Additional Book No. I, Volume No. I, Volume No. 1650, paged 109-113, regd. on 15.7.66 by Sub-Register, Delhi and bounded as under:-
North : Another plot of land South : House
East : Gali West : Road.
And whereas I have no issue, My husband S. Rattan Singh Khanpuri is alive. Moreover my husbands nephew Shri Surjit Singh Sahni is also living with me since childhood and he has been brought up by me as a son and is looking after me.
In order to avoid any dispute or controversy in future, I hereby bequeath that so long as I am alive, I shall remain owner and in possession of my aforesaid property. After my death, the above mentioned property and other moveable assets, shall west in S. Surjit Singh Sahni to the exclusion of all other legal heirs, Shrimati Maninder Kaur his wife is living with me and serving me in all respects.
In case anyone raises any objection to this will, the same shall be treated as null and void in any court of law. Hence, I testatrix have executed this will at Delhi on the date month and year first above written in the presence of and hearing of the following witnesses. Text of the Will has been explained to me in my mother tongue and I have fully understood it.
TESTATRIX
Sd/-
Mr. S. Bhola
WITNESSES.
1. Sd/-
(Rattan Singh Khanpuri)
S/o. Sh. Ram Singh, R/o. 32/2 East Patel Nagar,
New Delhi”
4. It is stated in the petition that the deceased died issueless and the petitioner and his wife were taking care of the testatrix. It is further stated that the husband of testatrix, Late S. Rattan Singh Khanpuri also expired on 23rd May, 1995.
5. Notice was issued on the present petition on 07th May, 2018. Citations were also directed to be issued, which came to be published in the English edition of the daily newspaper “The Statesman” Delhi edition and “Navbharat Times” (Hindi) Delhi edition.
6. No objections have been received to the Will after publication of the citations.
7. Notices were duly served on the State and the other respondents. Valuation reports have been filed by the State. Respondent nos. 3 to 13 have filed their “No Objections” supported by affidavits. The relevant portion of one such no objection affidavit filed by respondent no. 3 is reproduced hereinbelow:-
“(2) I say that the testatrix Late Gian Kaur and her husband Late S. Rattan Singh Khanpuri were my Brotherin-law and Sister-in-law (elder brother of my husband Late S. Bhagat Singh Sahni an
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