Point of Law: In case of an unregistered will, mutation would be done if no objection is furnished by legal heirs and if no objection is not furnished then a notice would be issued to legal heir to provide their no objection within one month and in case no objection are received or in case no objections are not received within prescribed period, then mutation shall be granted.

JUDGMENT :

Sanjeev Sachdeva, J.

1. Petitioner seeks quashing of letter dated 09.07.2021 whereby the respondent Corporation has directed petitioner to obtain a NOC from the other legal heirs and the legal member surviving certificate from the concerned SDM for the purposes of proceeding with the mutation.

2. Learned senior counsel for the petitioner submits that petitioner is the sole and absolute owner of the subject property. He submits that the property was originally owned by his late father and mother and his mother has gifted her 50% share in the subject property by way of a registered gift deed dated 25.01.2007 and father has willed his half share in the property by way of Will dated 07.05.2000.

3. Learned senior counsel submits that father on his death left behind besides the petitioner, his mother and his two sisters.

4. Learned senior counsel submits that one of the sisters Smt. Charu Mehra had filed a suit for injunction in the year 2006 which was registered as C.S. No.1571/2006 which was thereafter registered again as Suit No.269/2009.

5. Learned senior counsel submits that by order dated 23.02.2010, plaint in the said suit was rejected as being barred by Section 41(h) of the Specific Relief Act. He submits that the plaint was rejected on the ground that a simplicitor suit for injunction was not maintainable in the absence of the plaintiff therein specifically challenging the validity of the Will of late father.

6. Learned senior counsel further submits that no further proceedings were taken, after the impugned judgment and the judgment has become final. He submits that at no point of time did the sister ever challenge the validity of the Will of the father dated 07.05.2000. He submits that in view of Section 57 of the Indian Succession Act, 1925, no probate is required to enforce the right under a Will except in case the Will is under challenge.

7. Learned senior counsel submits that since the Will has never been challenged, respondent cannot deny mutation or require the petitioner to produce an NOC from the other legal heirs

8. In the Court Affidavit, Respondents have relied on circular dated 08.08.2011 to contend that in the cases of beneficiaries of unregistered Will either no objection certificate is to be furnished by all the legal heirs and in case no objection certificate is not furnished by any one of the legal heirs then a notice would be issued to the said legal heir for filing objections if any within a period of one month.

9. Learned counsel appearing for the respondent submits that a letter was issued to the petitioner on 08.11.2021 requiring the petitioner to furnish the latest names and addresses of the other legal heirs of the deceased father - Sh. S.K. Duggal.

10. Learned counsel submits that by response dated 12.11.2021, names and addresses of the legal heirs of Sh. S.K. Duggal have been provided.

11. Circular dated 08.08.2011 inter-alia provides as under:-

CIRCULAR

Pursuant to Departmental Circular No.Tax/HQ/2009/GRP/D/194/A&C/P.Cell dated 11.08.2010 dealing with mutation procedure in case of Unregistered Will, it was notified that "In case of Unregistered Will, the beneficiaries must be asked to obtain Succession Certificate/ Probate Order from a Competent Civil Court."

The matter has been re-examined. After having considered, the Hon'ble Lt. Governor, Delhi has been pleased to waive the condition of the beneficiaries of an Unregistered Will obtaining Succession Certificate/ Probate Order from a Competent Civil Court and to direct that Mutation may be allowed in cases of Unregistered Will in favour of beneficiary with certain safeguards. In pursuant thereof mutation u/s 128 of the DMC Act following an "Unregistered Will" will be done as under:-

(a) If the no objections of other legal heirs of the deceased are made available by persons claiming mutation or;

(b) In case no objections are not furnished by the person in whose favour mutation is sought, a notice to that effect will be issued by the Deptt. to other le