Praveen Aggarwal v. State

1. The Petitioner has filed the present petition under Section 276 of the Indian Succession Act, 1925 seeking probate of the will dated 29th November, 1990 of her maternal aunt, Late Sarla Gupta (hereinafter referred to as the ‘Testatrix’).

2. The Testatrix had during her lifetime purchased a property bearing No. B-107, Swasthya Vihar, Delhi- 110092 admeasuring 390 sq. yards by way of a perpetual sub-lease deed executed in the year 1979. Subsequently, the said property was converted from leasehold to freehold and accordingly, a Conveyance Deed was executed in favour of the Testatrix which is registered with the Sub-Registrar-IV, Delhi. During her lifetime, the Testatrix executed a Will dated 29th November 1990 in respect of the said property relinquishing the entire share, title and interest in the said property in favour of the Petitioner.

3. It is stated that as the Testatrix was unmarried during her life and her parents have pre-deceased her therefore, no class-1 legal heir is in existence. The Respondents No. 2 and 3 are the real sisters of the Petitioner while the Respondents No. 4 to 6 are the cousin sisters of the Petitioner, being the daughters of the late brother of Smt. Sarla Gupta, Sh. Jugal Kishore.

4. It is stated that the entire family, as stated aforesaid, enjoys a good relationship between themselves and owing to the cordial family relations, all the Respondents have given their consent for the grant of Letters of Administration in respect of the Will dated 29th November

1990. The relevant portion of the written statement filed by the Respondents No. 2 and 3 are as follows: “That Late Dr. Sarla Gupta executed a WILL dated 29.11.1990 out of her own volition with free consent and without any undue influence bequeathed her property bearing no. B-107, Swasthya Vihar, New Delhi - 110092 in favour of Sh. Praveen Aggarwal i.e. the Petitioner, and at that time she was fully of a sound mind. The said Will is the last WILL and testament of Late Dr.Sarla Gupta. That the answering Respondents were well acquainted with Late Dr.Sarla Gupta since their childhood and have no objection if the Letters of Administration with the Will annexed is granted in favour of the Petitioner.” The relevant portion of the written statement filed by the Respondents No. 4 to 6 are as follows: “That Late Dr. Sarla Gupta executed a WILL dated 29.11.1990 out of her own volition with free consent and without any undue influence bequeathed her property bearing no. B-107, Swasthya Vihar, New Delhi - 110092 in favour of Sh. Praveen Aggarwal i.e. the Petitioner, and at that time she was fully of a sound mind. The said Will is the last WILL and testament of Late Dr.Sarla Gupta. That the answering Respondents were well acquainted with Late Dr.Sarla Gupta since their childhood and have no objection if the Letters of Administration with the Will annexed is granted in favour of the Petitioner.” The Valuation Report in respect of the said property is as under: Area of Plot 326.09 sq. mtrs. Covered Area 264 sq. mtrs. (GF + FF) Use Factors Residential Category „D‟ Year of Construction 1983-84 Land Rates Rs. 102144/- per SqMtrs Cost of Land 326.09 × 102144= Rs. 3,33,08,137/- Cost of Construction 8928 × 0.[8] × 264 = Rs. 18,85,594/- Total Value of plot: Rs.3,33,08,137/- + Rs.18,85,594/- = Rs.3,51,93,731/-

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: “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 carefully perused the Will dated 29th November 1990 exhibited as PW-1/2. It is attested by two witnesses. With respect to the first witness Sh. H.K. Goyal s/o Lala Laxmi Narayan, it is submitted that he is very old, indisposed and presently, is not in a position to swear in affidavit in support of his attestation. The second witness is Sh. Mahesh

7. The Petitioner has been examined as PW-1 and his affidavit of evidence is exhibited as Ex.PW-1/A. He has identified the signatures of the Testatrix at point ‘A’ on all the three pages of the Will and has brought forth documents Ex.PW-1/5 to Ex.PW-1/9 which are the ‘No Objection Certificates’ of the Respondents No. 2 to 6 and Ex. PW-1/10 which contains the copy of the Aadhar Cards of the Respondents No. 2 to

6. He has not been cross-examined by the Respondents.

8. The petition is not contested by the Respondents and the citation has been carried out in the two leading Newspapers and no objections have been received from any third person.

9. The unchallenged and unrebutted testimony of the Petitioner who appeared as PW-1 is supported by the testimony of attesting witness PW-

2 Mr. Mahesh K Chaudhary who has identified the signatures of the Testatrix Late Sarla Gupta on the Will. The authenticity of the Will dated 21st November 1990 of Late Sarla Gupta is hereby proved.

10. The present petition is allowed. Letter of Administration with Will dated 21st November 1990 exhibited as PW-1/2 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.

11. The valuation filed by the Tehsildar concerned, is on record.