Research › Search › Judgment

Delhi High Court · body

2006 DIGILAW 509 (DEL)

RACHNA KUMAR v. STATE

2006-03-13

SANJAY KISHAN KAUL

body2006
SANJAY KISHAN KAUL, J. ( 1 ) TEST. CAS. No. 8/1992 the petitioner has filed this petition under Sections 276 and 300 of the indian Succession Act for grant of probate of the last Will and Testament dated 26. 07. 1991 of the deceased Dr. (Mrs.) Kusum Kanwar Krishna, who passed away on 28. 12. 1991. ( 2 ) THE petitioner is the residuary legatee under the aforesaid Will. The petitioner is not directly related to the Testator and the legal heirs of the deceased Testator have been set out in para 5 of the petition. The legal heirs had filed objections being respondents No. 1, 2, 5, 6, 7a, 7b, 7c and 8. The parties have settled the dispute and on 03. 01. 2006, the Objectors sought to withdraw the objections. The objections were to be treated as withdrawn in view of the settlement embodied in the Agreement dated 30. 11. 2004 as modified by the undertaking dated 02. 01. 2006. ( 3 ) THE original Will dated 26. 07. 1991 has been placed on record in terms whereof mr. Gulab M. Primlani was appointed as the Executor who expressed his unwillingness to act as the Executor. ( 4 ) THE Agreement dated 30. 11. 2004 accepts and acknowledges that the Testator had entered into an Agreement to Sell with Mr. Sanjay Raina and Mrs. Kavita Raina in respect of Flats No. 1a and 1b, First Floor, Block-A, Sector-12, Ramprastha colony, Ghaziabad, U. P. The legal heirs of the Testator agreed to honour the commitment made by the Testator to the said two persons and in terms thereof payments had to be made by the said two persons to the legal heirs. The said payments are stated to have been made and copies of the receipts have been placed on record having been filed in Court. The Agreement also records understanding between the parties to deal with the properties in terms of the will. ( 5 ) AN undertaking was also filed of Smt. Indu Kaul on behalf of Mrs. Kavita Raina and Mr. Sanjay Raina for the payment of the amounts which have been paid as per the receipts mentioned aforesaid. The Agreement also records understanding between the parties to deal with the properties in terms of the will. ( 5 ) AN undertaking was also filed of Smt. Indu Kaul on behalf of Mrs. Kavita Raina and Mr. Sanjay Raina for the payment of the amounts which have been paid as per the receipts mentioned aforesaid. ( 6 ) IN view of the fact that the judgment in a testamentary case would be a judgment in rem, it was directed that the petitioner should file an affidavit of evidence including of at least one attesting witness. Learned counsel for the petitioner has placed on record the affidavits in Court today. ( 7 ) THE petitioner has filed an affidavit affirming to what has been set out in the Will. In terms of the Will, the manner of disposal of the personal effects and jewellery, cash, etc. to the legal heirs, Mother Theresa Missionaries and charity, Blind Relief Association and the petitioner have been set out. The details of the bank accounts, properties and assets have been set out in annexure - I to the affidavit. It has also been stated that the respondents include the near relatives of the deceased and the legatees under the Will. ( 8 ) ANOTHER affidavit has been filed by Shri S. K. Gandhi, Advocate, who is one of the attesting witnesses to the Will. The witness has stated that the original will dated 26. 07. 1991 was executed by the Testator in his presence and in the presence of two other witnesses - Mr. Rajiv Savara and Mr. Rickinder Singh Bawa before the Notary Mr. O. P. Abbott. After the Testator had signed the Will, Mr. Gandhi and the other two witnesses signed the said Will in the presence of the testator and in the presence of each other. The Testator is stated to be in sound physical and mental condition at the time of execution of the Will and the will is sought to be exhibited as Exhibit - A. ( 9 ) ON a consideration of the aforesaid testimony of the witnesses, it is established that the Testator had executed the last Will and Testament dated 26. 07. 1991 which was signed by three witnesses. The Testator signed in the presence of the witnesses, who in turn signed in the presence of the Testator and in the presence of each other. 07. 1991 which was signed by three witnesses. The Testator signed in the presence of the witnesses, who in turn signed in the presence of the Testator and in the presence of each other. ( 10 ) THERE is no other legal impediment pointed out to the grant of probate. The valuation report has, however, not been received from the revenue controlling authority respondent No. 1. ( 11 ) A perusal of the amended memo of parties also shows that the same does not correctly reflect the parties as the State has not been shown as respondent No. 1. Learned counsel for the petitioner is granted leave to file a corrected amended memo of parties within a week. ( 12 ) PROBATE is granted of the last Will and Testament dated 26. 07. 1991 of the deceased Dr. (Mrs.) Kusum Kanwar Krishna. The valuation report be called from the State. On the petitioner depositing the requisite stamp duty the probate be issued. ( 13 ) IT is, however, clarified that in view of the rights in respect of Flats No. 1a and 1b, First Floor, Block-A, Sector-12, Ramprastha Colony, Ghaziabad, U. P. having already been transferred by the Testator during the lifetime of the testator and the amounts having been received by the legal heirs under the agreement dated 30. 11. 2004 for any residuary rights in the said flats, the amount received by the legatees shall alone form part of the grant of probate. ( 14 ) THE petition stands disposed of. .