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2017 DIGILAW 972 (DEL)

ISHAN KAPUR v. STATE

2017-03-17

DEEPA SHARMA

body2017
JUDGMENT : DEEPA SHARMA, J. 1. The present petition is filed by the petitioner through Power of Attorney namely Ms. Avani Kapur for grant of probate of the Will dated 01.09.2005 executed by his father Sh. Shiv S. Kapur in respect of his estate under Section 276 of the Indian Succession Act, 1925. It is submitted that his father had expired on 06.02.2010 leaving behind his wife, son and a daughter. Smt. Suvira Kapur wife of the testator also died on 24.11.2011 executing a Will dated 10.04.2008 and a codicil dated 09.09.2010, by which she had appointed her daughter namely Ms. Kavita Dina Medland as the sole executor of her Will. The petitioner was also appointed as an executor in her Will but he expressed his unwillingness to act as an executor. The testator had two sons and a daughter. Sh. Rajiv Alochan Kapur, pre-deceased son of the testator had a daughter, Ms. Avani Kapur who besides being a legal heir of testator, is acting as a power of attorney of the petitioner. It is submitted that in the said Will the testator had appointed his brother-in-law Mr. Prahlad Dev Malhotra as the administrator of the Will. The Will also stipulated that on the demise of Mr. Prahlad Dev Malhotra, the petitioner shall be the administrator of the Will. It is submitted that Mr. Prahlad Dev Malhotra had expired on 16.05.2010 before he could administer the Will. Hence the petitioner is the sole surviving administrator of the said Will. The petitioner is the son and the respondent no. 2 is the daughter and the respondent no. 3 is the widow of the pre-deceased son Mr. Rajiv Alochan Kapur, of the testator. It is submitted that the testator was the permanent resident of property bearing Flat No. 14 and Barsati at 45, Friends Colony (East), New Delhi and the said Will was executed by him on his own free will and without any force and coercion and undue influence and in his sound disposing mind and health. In the said Will, he had bequeathed 50% joint share in the said property (house) in favour of his wife creating life interest and after her demise, its distribution in equal proportion to petitioner and the respondent no. 2. On these submissions, it is prayed that probate of the Will be granted to the petitioner. 2. In the said Will, he had bequeathed 50% joint share in the said property (house) in favour of his wife creating life interest and after her demise, its distribution in equal proportion to petitioner and the respondent no. 2. On these submissions, it is prayed that probate of the Will be granted to the petitioner. 2. The notice of the petition was issued to the State as well as to the legal heirs of the testator i.e. respondents no. 2 to 4. The citation was published in ‘Times of India’ and ‘Navbharat Times’ on 15.02.2013. The valuation report was also sought and the Assistant Collector, New Delhi has submitted his report whereby valuing the property at Rs.1,75,34,731/-. The respondents no. 2 and 4, the sister and the niece of the petitioner have furnished their no objections along with their affidavits. None presented any objection to the said Will. Respondent no. 3, the daughter-in-law of the testator did not respond to any court processes. 3. The petitioner has examined two witnesses i.e. his attorney as PW-2 and one of the attesting witness of the Will Mr. A.V. Ravindranath as PW-1. The attesting witness Mr. A.V. Ravindranath (PW-1) has tendered his evidence by way of affidavit Ex.PW-1/A. He has identified his signatures on the original Will produced before the court at point ‘D’ and that of testator at point ‘E’ and signatures of another witness at point ‘F’. He has also duly deposed that the testator had signed the Will in his presence and in the presence of other witness Mr. J.S. Nirody. He has also deposed that he had signed the Will in the presence of the testator and the other attesting witness. He has thus duly proved the execution of the Will. PW-2 has proved the power of attorney Ex.PW-2/1 issued in her favour by the petitioner. She has proved original Will. She has proved the death certificate of Sh. Shiv S. Kapur dated 06.02.2010 as Ex.PW-2/3. She has also proved that the deceased was survived by his wife (now deceased), the petitioner, respondent no. 2, respondent no. 3 (daughter-in-law) and respondent no. 4 (grand-daughter) as the only Class I legal heirs and the list is proved as Ex.PW-2/4. 4. I have heard arguments and perused the relevant records. 5. From the testimony of PW-1, I am satisfied that Sh. Shiv S. Kapur had executed a valid Will. 2, respondent no. 3 (daughter-in-law) and respondent no. 4 (grand-daughter) as the only Class I legal heirs and the list is proved as Ex.PW-2/4. 4. I have heard arguments and perused the relevant records. 5. From the testimony of PW-1, I am satisfied that Sh. Shiv S. Kapur had executed a valid Will. The Will was signed by him in the presence of two attesting witnesses and the witnesses also signed the Will in the presence of the testator. The contents of the Will clearly establishes that the testator had appointed initially Mr. Prahlad Dev Malhotra, his brother-in-law as administrator of his estate and in eventuality of his demise, the burden was put on the petitioner to act as a sole administrator of the said Will. The witnesses have also duly proved that at the time of his death, the testator was survived by his wife, son, daughter and grand-daughter. The Will also records that his pre-deceased son Mr. Rajiv Alochan Kapur and his first wife had divorced each other and thereafter his son married to Ms. Smrithi Talwar (respondent no. 3) but the marriage between them did not last very long. The testator had further noted that they were living separately from 2005 and that they had started the divorce proceedings by way of mutual consent but he was not aware of the outcome of the divorce proceedings. The testator, thus, has not termed respondent no. 3 as a divorced wife of his pre-deceased son namely Mr. Rajiv Alochan Kapur. No evidence has been produced by the petitioner to prove that his pre deceased brother had divorced respondent no. 3. Therefore, the respondent no. 3 is also the Class I legal heir of the testator. However, despite the service of processes and the citation, she had not filed any objection in this petition. Other respondents i.e. respondent no. 2 and respondent no. 4 have filed their no objections supported by affidavits. Respondent no. 2 is the sister of the petitioner and respondent no. 4 is the daughter of pre-deceased brother of the petitioner and she in fact is also the power of attorney of the petitioner. She has also filed a no objection to this petition. 2 and respondent no. 4 have filed their no objections supported by affidavits. Respondent no. 2 is the sister of the petitioner and respondent no. 4 is the daughter of pre-deceased brother of the petitioner and she in fact is also the power of attorney of the petitioner. She has also filed a no objection to this petition. Vide this Will the testator had wished to grant the Letter of Administration of the Will to the petitioner and hence, I am satisfied that there is no impediment in granting Letter of Administration to the petitioner. I grant Letter of Administration of the estate of the deceased to the petitioner subject to his paying requisite court fees. Requisite court fees shall be paid upon the valuation of the various properties under the Will. The valuation be done by the Registrar General within three months from this order of the court of all the properties mentioned in the Will except the property of which the valuation report is submitted by the Assistant Collector, New Delhi vide his report dated 31.12.2016 and thereafter on payment of the court fee on such valuation by the petitioner, the Letter of Administration shall be granted to him on his furnishing administrative bond with one surety to the satisfaction of the Registrar General of this court. 6. The petition stands disposed of in the above terms.