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IN THE HIGH COURT OF DELHI AT NEW DELHI

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FAO 36/2010

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Date of Decision: June 27^th, 2014

KAVITA KANWAR

..... Appellant

Through: Mr.Arun Khosla with Ms.Shreeanka

Kakkar, Advocates

versus

STATE (N.C.T.Delhi) & ORS

.... Respondents

Through: Mr.P.Banerjee with Ms.Nidhi

Parashar, Advs for respondent no.2.

Ms.Maninder Acharya, Sr.Adv. with Mr.Anuj

Aggarwal, Mr.Yatish Chandra & Mr.Gaurav

Khanna, Advocates for respondent no.3.

CORAM:

HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J

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1.

Present is an appeal under section 299 of the Indian Succession Act,

1925 (hereinafter referred to as „the Act‟) wherein challenge has been made

to the judgment dated 23.11.2009 passed by the ld.Addl. District Judge in

Probate Case no.465/2006 whereby the probate petition filed by the

appellant has been dismissed.

2.

Briefly the facts relevant for disposal of the present appeal are as

under:-

Appellant had filed a probate petition for the grant of probate of Will

dated 20.5.2003 alleged to have been executed by her mother, Smt.Amarjeet

Mamik w/o late Shri D.S.Mamik, in respect of property no.D-179, Defence

2014:DHC:2988

Colony, New Delhi excluding its ground floor. The mother of parties i.e.

appellant and respondents No.2 and 3 had died on 21.5.2006. The appellant

is the executor named and one of the beneficiaries in the said Will. It was

alleged that the Will dated 20.5.2003 was executed by her mother in the

presence of two witnesses, namely, Major General Manjit Ahluwalia r/o D-

34, Defence Colony, New Delhi and Sh.Urvinder S Kohli r/o 227, Jor Bagh,

New Delhi. It was further alleged that her father was the owner of the

aforesaid property constructed on a plot of land measuring 325 Sq.yards

comprising of a ground floor, first floor, terrace thereon and an annexe

block of garage and servant quarter thereon. It was stated that the ground

floor of the aforesaid property had already been gifted to the appellant by

her father vide registered gift deed dated 25.1.2001. Her father had

bequeathed to the testatrix i.e., Smt.Amarjeet Mamik the first floor, the

terrace thereon and all other portion of the aforesaid property except the

ground floor vide registered Will dated 14.2.2001. Her father predeceased

her mother. The testatrix died on 21.5.2006 leaving behind two daughters,

namely, Smt.Kavita Kanwar, Smt.Pamela Mehta i.e. appellant and

respondent no.2 and one son Col.Prithvijit Mamik, respondent no.3. It was

further alleged that by virtue of aforesaid Will the assets which were likely

to come in the hands of the appellant were the first floor and other portions

of the aforesaid property save and except the ground floor of the building

and to carry out the two options of constructing either on the terrace of the

first floor of the said building or to demolish the said building and to re-

construct and give the highest floor of the said building to respondent no.2

and retaining the terrace rights thereon. It was alleged that as per aforesaid

Will, the balance in the saving bank account maintained with Central Bank

2014:DHC:2988

of India, Defence Colony as mentioned in Schedule-B annexed with Probate

Petition would go to her brother Col.(Rtd.) Prithvijit Mamik i.e., respondent

no.3. It was therefore prayed that probate in respect of aforesaid Will be

granted in favour of the appellant.

3.

Respondent no.2 initially did not file any objections to the petition or

written statement before the ld.ADJ. Later on when the case was at the

stage of evidence, respondent no.2 sought permission to file written

statement which was dismissed vide order dated 3.7.2008 passed by the

ld.ADJ. However, respondent no.2 continued to contest the matter.

4.

Respondent no.3 had filed objections before the ld.ADJ by contending

that the Will propounded by the petitioner was forged and fabricated one

and the same was not executed b