Arjun Vishnu Kirpalani v. The State of NCT of Delhi & Anr.

1. By way of this application, the petitioner seeks early hearing of the instant matter.

2. Learned counsel appearing on behalf of the petitioner does not wish to press the instant application and submits that the same may be treated as infructuous.

3. The instant application is dismissed as infructuous.

1. The Petitioner has filed the present petition under Section 276 of the Indian Succession Act, 1925 seeking probate of the will dated 11th June 2020 of his father, Late Vishnu Kirpalani (hereinafter referred to as the ‘Testator’).

2. Testator was married to Late Prakash Kirpalani and out of the wedlock, two children namely Arjun Vishnu Kirpalani and Tara Kirpalani Dev, i.e., Petitioner and Respondent No.2 respectively, were born. The Testator died on 28th November 2020 leaving behind the Petitioner and the Respondent No.2 as the two Class-I heirs. Vide Will dated 11th June 2020, the Testator bequeathed the entire ownership in the property bearing House No. 3, Ashoka Avenue, Chattarpur Farms, Mehrauli, New Delhi- 110074 to the Petitioner as the sole beneficiary.

3. It is stated there is no other Class-I legal heir or other near relations left behind by the Testator and he was competent to deal with the said property being the absolute owner thereof. It is further stated that the Testator was in a sound state of mind and in good health at the time of the execution of the said Will and has executed the said Will out of his own choice without any force or compulsion. The Respondent No.2 has given her consent for the grant of probate in respect of the Will dated 11th June 2020 in favor of the Petitioner. The relevant portion of the no objection certificate is reproduced below: “That as per the WILL dated 11.06.2020, I do not desire to make any claim on Khasra no. 1494/2 (3-12), 1494/1(1-04), 1495/2(4-07) measuring 9 Bighas and 3 biswas situated in revenue Estate of Village Chattarpur, tehsil Haus Khas, New Delhi now known as House No.3, Ashoka Avenue, Chattarpur Farms, Mehrauli, New Delhi-110074 held by the deceased. I hereby agree to renounce all my rights existing as well as they may accrue to me in future in respect of the aforesaid property. I declare that I have no objection whatsoever in transmitting the entire Khasra no. 1494/2(3-12), 1494/1(1-04), 1495/2(4-

07) measuring 9 Bighas and 3 biswas situated in revenue Estate of Village Chattarpur, tehsil Haus Khas, New Delhi now known as House No.3, Ashoka Avenue, Chattarpur Farms, Mehrauli, New Delhi-110074 in the name of my brother Sh. Arjun Vishnu Kirpalani, S/o Late Sh. Vishnu Hiranand Kirpalani, R/o House No. 3, Ashoka Avenue, Chattarpur Farms, Mehrauli, New Delhi-110074 (Brother) as per registry details given below: Registry 1: Khasra no. 1494 - 1 Bigha and 4 Biswas Registered via Sale Deed 7th Day of October, 1965 by Shri Mukat Ram Budhwar son of Shri Bihari Lal as VENDOR. Registered via Sale deed dated 07.10.1965 vide Registered No. 6554 in Additional Book no. 1, Volume No. 1406 on pages 139 to 141 dated 15.10.1965 through Sh. Mukat Ram Budhwar. Registry 2: Khasra no 1494-3 bighas 12 biswas Khasra no 1495 - 4 bighas and 07 biswas The 2nd Registry on Khasra No. 1494 and 1494 is made on 7th October 1965 by D.L.F. Housing & Construction Private Limited, a joint stock company with registered office F-Block Connaught Place, New Delhi 110001 by Shri Ram Kishan Jain, M.Sc. son of Shri Banarsi Dass, Secretary of the said company. Under Power of Attorney registered as NO. 516/237 in additional book No. IV, Volume No. II on pages 174 to 178 on 6th Day of September, 1956. I am executing this no objection to be submitted to the concerned government authorities.

4. The Valuation Report in respect of the said property is as under: Category „H‟ Area of Built-up area 842 Sq. Mtrs. Cost of Land 7711 × 18624: Rs. 14,47,81,728/- (Approx) Total Cost of Construction 842 × 2784 × 0.9:Rs. 21,09,715/- Value of Property Rs. 14,68,91,443/- (Approx) (Rs, fourteen crore, sixty eight lakh Ninety one thousand, four hundred Fourty three only/-)

5. Section 68 of the Indian Evidence Act, 1872 requires a Will to be proved by examination of at least one of the two attesting witnesses. For a better understanding, Section 68 has been reproduced below: “Section 68- Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.”

6. I have perused the death certificate of the Testator issued by the South Delhi Municipal Corporation marked as EXHIBIT PW1/1 and have also carefully perused the Will dated 11th June 2020 executed by the Testator, Late Vishnu Kirpalani, marked as EXHIBIT PW2/A which has been witnessed by two witnesses namely, Sh. Mobin Khan and & Sh. Mukesh Mandal. In the affidavit of Evidence of Shri Mobin Khan, PW-2 he has deposed that he and the other attesting witness, Sh. Mukesh Mandal were present and had seen the testator Late Vishnu Kirpalani signing the said Will dated 11th June 2020 at Point A, whose signature he can identify. He has further deposed that he had signed on the said Will at point B in presence of the other attesting witness as well as the Testator and also, identifies the signature of other attesting witness at point C. He has also deposed that the Testator was in a sound state of mind when he signed the Will dated 11th June 2020.

7. As there was no objection to the present petition by the other Class-1 legal heir being Respondent No.2, no cross-examination of PW-2 was carried out. The Petitioner has been examined as PW-1 and he has deposed that the Testator died on 28th November 2020 leaving behind two Class-1 legal heirs, being the Petitioner and Respondent No.2. He has appended a copy of Legal Surviving Member Certificate of Late Vishnu Kirpalani marked as EXHIBIT PW1/3 issued by the Office of District Magistrate, South District, Delhi. It is further deposed that the said Will is the last Will and Testament of the deceased Testator by way of which the Petitioner has been made as the sole beneficiary under the Will and the executor and, a no-objection certificate has already been executed by the Respondent No. 2 in favour of the Petitioner.

8. Ms. Tara Kirpalani, Respondent No.2 was examined RW-2 by the local commissioner on 23rd June 2022 and she has confirmed that she has given a no-objection to the grant of probate to Will dated 11th June 2020 which is EXHIBIT RW2/A.

9. The petition is not contested by the Respondents and the citation has been carried out in two daily newspapers, one having wide circulation in NCT of Delhi and the other in Edina, Minnesota, USA. No objections have been received from any third person.

10. The unchallenged and unrebutted testimony of the Petitioner who appeared as PW-1 is supported by the testimony of attesting witness PW-2 Mr. Mobin Khan who has identified the signatures of the testator Late Vishnu Kirpalani on the Will. The authenticity of Will dated 11th June 2020 is hereby proved.

11. The present petition is allowed. Probate of Will dated 11th June 2020 is hereby granted to the Petitioner, subject to payment of requisite court fees. The Petitioner shall furnish Administrative Bond with one surety to the satisfaction of the learned Registrar General of this Court.