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2012 DIGILAW 2431 (DEL)

PARVATI SHARMA v. STATE

2012-08-07

V.K.JAIN

body2012
JUDGMENT V.K.JAIN, J. TEST.CAS. 18/2007 & IAs 3314/2007(u/S.151 CPC), 6541/2007(u/S.151 CPC), 8968/2007(u/S.192, 247 & 269 of Indian Succession Act), 2680/2010, CCP 98/2007 1. This is a petition for grant of letter of administration in respect of the Will alleged to have been executed by late Shri Bishan Dass Sharma on 28.10.2002. Late Shri Bishan Dass Sharma died on 19.02.2007. This petition was filed by his widow – Smt. Parvati Sharma. Late Shri Bishan Dass Sharma was survived by his wife, three daughters and two sons. Smt. Parvati Sharma died during pendency of this petition on 19.10.2009. IA 2680/2010 has been filed by her son namely Shri Ajay Sharma. The other son Sanjay Sharma is represented by Mr. Arun Khosla whereas the daughters are represented by Mr. Vikas Mehta. All the counsels state that no one is now the opposing grant of letter of administration. Mr. Khosla states that the objections which his client Sanjay Sharma had filed may be treated as withdrawn. All the parties are now admitting genuineness of the Will set up in the petition. 2. The Will purports to have been executed in the presence of two attesting witnesses namely Mr. S.P.Tandon and Mr. J.P.Jain. The affidavit of Mr.S.P.Tandon has already been filed along with the petition. In his affidavit, Mr. S.P.Tandon had stated that late Shri Bishan Dass Sharma had signed the Will in his presence and the presence of other witness Mr. J.P.Jain, all of whom were present at the same time. 3. The execution of an unprivileged Will is governed by Section 63 of Indian Succession Act which, to the extent it is relevant, provides that the Will shall be attested by two or more witnesses, each of whom has seen the Testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the Testator, or has received from the Testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the Testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. Section 68 of Evidence Act, to the extent, it is relevant, provides that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness 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. Since the Will is a document required by law to be attested by at least two witnesses, the petitioner could have proved it by producing one of the attesting witnesses of the Will. The execution of the will has been duly proved by way of affidavit of the attesting witness Mr S.P. Tandon. The execution of the Will thus stands duly proved. There are no suspicious circumstances surrounding execution of Will in question. 4. The execution of the Will, which is otherwise being admitted by all the legal heirs of late Shri Bishan Dass Sharma, has been proved. The petitioner has died during pendency of this petition. Section 218 of Indian Successions Act deals with the persons to whom Letter of Administration may be granted, where deceased is a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person. To the extent it is relevant, the aforesaid Section provides that administration of estate of a may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased' s estate. It further provides that when several such persons apply for such administration, it shall be in the discretion of the Court to grant it to any one or more of them. The learned counsel appearing for Mr Sanjay Sharma, other son of the petitioner, insists that the Letter of Administration should be granted jointly to all the legal heirs of the deceased petitioner and not to Shri Ajay Sharma, applicant in IA No. 2680/2010 alone. I see no reason for not acceding to this prayer made by Shri Khosla. There is no particular reason for granting Letter of Administration only to one son, when all the children of late Smt. Parvati Sharma are her Legal Representatives. I see no reason for not acceding to this prayer made by Shri Khosla. There is no particular reason for granting Letter of Administration only to one son, when all the children of late Smt. Parvati Sharma are her Legal Representatives. It is, therefore, directed that Letter of Administration, with copy of the Will executed by late Shri Bishan Dass Sharma on 28.10.2002 annexed to it, be issued jointly to all the five children of late Shri Bishan Dass Sharma and late Smt. Parvati Sharma, namely, Smt. Veena Dhiman, Smt. Renu Saka, Smt. Anju Sharma, Sh. Ajay Sharma and Sh. Sanjay Sharma. The petition as well as all pending IAs stand disposed of in terms of this order.