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IN THE HIGH COURT OF DELHI AT NEW DELHI

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TEST.CAS. 12/2013

NAVIN SOI

..... Petitioner

Through

Ms. Sonia A. Menon, Advocate

with Mr. S.Krishna Murthy,

Advocate.

versus

STATE & ORS

...... Respondents

Through

Mr. Jagjit Singh, Advocate for

respondent No.2.

%

Date of Decision: 14^th February, 2019

CORAM:

HON'BLE MR. JUSTICE MANMOHAN

J U D G M E N T

MANMOHAN, J: (Oral)

1.

Present petition has been filed under Section 276 of the Indian

Succession Act, 1925, for grant of probate of Will dated 11^th March,

2010, executed by late Mrs. Pushpa Kumari Soi.

2.

In the petition it has been averred that the petitioner is the

executor of Will dated 11^th March, 2010 and son of the testatrix, late

Mrs. Pushpa Kumari Soi, who expired on 24^th May, 2012 in New

Delhi. The testatrix is stated to have executed a registered Will dated

11^th March, 2010, which was duly attested by Mr. Anil Sapru and Mr.

Ashok Kumar. The Will dated 11^th March, 2010 executed by the

testatrix is reproduced herein below:-

“WILL

EIC No.NCJO639302”

3.

It is stated that the deceased left behind two legal heirs, i.e. her

son (petitioner) and daughter (respondent no. 2).

4.

Notice was issued on the present petition on 27^th February,

2013. Citations were also directed to be issued, which came to be

published in the newspapers “The Statesman” and “Dainik Bhaskar”.

5.

Notices were duly served on the State and the other

respondents. Valuation reports have been filed by the State.

6.

The probate petition is contested by the respondent no. 2,

daughter of the testatrix. The gist of the objections filed by the

respondent no. 2 is that after execution of the Will dated 11^th March,

2010, late Mrs. Pushpa Kumari Soi executed a partition deed dated

12^th September, 2011 and relinquished her right in the subject

property. Therefore the Will dated 11^th March, 2010 became

infructuous, incompetent, redundant and obsolete. In support of his

submission, learned counsel for respondent no.2 relies upon the

judgment of the Supreme Court in H. Venkatachala Iyengar vs. B. N.

Thimmajamma & Ors., AIR 1959 SC 443.

7.

On 03^rd September, 2013 the following issues were framed:-

“1.

Relief.”

8.

Mr. Navin Soi, petitioner and son of the testatrix has filed an

affidavit by way of evidence and the said affidavit has been marked as

Ex. PW3/A. It has been stated by the petitioner in his affidavit that the

testatrix was in a sound disposing mind at the time of signing the Will

which was duly executed by her in the presence of the witnesses. It is

further stated that the testatrix expired on 24^th May, 2012 at New

Delhi leaving behind her last Will and testament dated 11^th March,

2010. The petitioner has proved the original Death Certificate of the

testatrix as Ex.PW3/1.

9.

Mr. Anil Sapru and Mr. Ashok Kumar, attesting witnesses have

filed their affidavits by way of evidence. The said affidavits have been

marked as Ex. PW1/A and Ex.PW2/A, respectively. The attesting

witnesses have proved the Will dated 11^th March, 2010 and have

identified their signatures.

10.

In view of the above, the Court is satisfied that the petitioner

has succeeded in proving the testatrix late Mrs. Pushpa Kumari Soi

had executed the Will dated 11^th March, 2010 and the said Will was

her last will and testament.

11.

This Court is also of the opinion that the scope and jurisdiction

of this Court in the present proceeding is limited.

12.

It is settled law that title disputes cannot be gone into in probate

proceedings. In Kanwarjit Singh Dhillon Vs. Hardyal Singh Dhillon

& Ors., AIR 2008 SC 306, the Apex Court has held as under:-

“10…...It was, therefore, not competent for the Probate Court to

properties of the testator.”

(emphasis supplied)

13.

The judgment of the Apex Court in H. Venkatachala Iyengar

(supra) refe