CHANDER KANTA PATHAK vs STATE OF NCT OF DELHI & ORS.

$~67
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:- 20th May, 2024.

+ TEST.CAS. 109/2021
CHANDER KANTA PATHAK ….. Petitioner
Through: Mr. Sagar Shivam Jaiswal, Adv. (M-8010164371)

versus

STATE OF NCT OF DELHI & ORS. ….. Respondents
Through: Mr. Jatin Dua, Adv.

CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J.(Oral)
1. This hearing has been done through hybrid mode.
I.A. 29613/2024 (for exemption) in TEST.CAS.-109/2021
2. The present testamentary case was disposed of vide order dated 4th August, 2023. The Petitioner, by way of the present petition under Section 276 of the Indian Succession Act, 1925, sought probate of the Will dated 9th May, 2017 executed by Late Sh. Hansraj Pathak. Witnesses were examined and there were no objections.
3. The three children of the testator i.e., Respondent Nos. 2 to 4 had filed their respective no objection affidavits for grant of probate of the Will in favour of the Petitioner. The details of the only immovable property which is the subject matter of the Will has been set out in para 4 of the petition and is property bearing ‘C-1/20, Janakpuri, New Delhi-110058’. Upon notice being issued in the present petition on 20th December, 2021, citation was directed to be published, but no objections were received from any person whatsoever. The valuation report in respect of the property was also filed by the Respondent No. 1 on 21st August, 2022. As per the said valuation report, the value of the property has been assessed as Rs.3,65,82,840/-. The relevant portions of the order dated 4th August, 2023, is as follows:
“6. As per Section 68 of the Indian Evidence Act, a ‘will’ is required to be proved by at least one of the two attesting witnesses. In the present case, both the attesting witnesses namely Shri Kulbhushan Malhotra and Shri Satish Kumar Ailawadi have deposed that the testator had signed the subject ‘will’ in their presence. They have also stated that the subject ‘will’ was executed voluntarily by the testator who was in a sound disposing mind at the time of execution of the ‘will’. As noted hereinabove, no objections whatsoever to the petition have been received either from the respondents or from any other member of the general public. In the light of this unchallenged and unrebutted testimony of the petitioner which is supported by the testimony of the two attesting witnesses, I am of the considered opinion that the petitioner has been able to prove the ‘will’ dated 09.05.2017 executed by the testator and being the Executor, she is entitled to be granted probate of the same in her favour.
7. The petition is, accordingly, allowed by directing that subject to the petitioner filing the requisite Court fees, probate of the ‘will’ dated 09.05.2017 be issued in her favour. The petitioner shall furnish administration bond and surety bond, to the satisfaction of the Registrar General of this Court, for which purpose the matter be placed before the learned Registrar General on 11.09.2023.
8. The petitioner is also granted liberty to apply as per law for return of the original documents filed with the petition.”

4. Ld. Counsel for the Petitioner submits that this is an application seeking exemption from furnishing surety bond.
5. In support of his case, Ld. Counsel for the Petitioner relies upon the decision of this Court in Rajesh Singh & Ors. v. State [2015:DHC:3104]. The relevant paragraphs of the said judgment are extracted herein below:
“10. Therefore, wherever probate has been sought of the bequest in favour of the natural heirs, and the petitioners have sought exemption from furnishing Administration Bonds/Surety Bonds they have ordinarily been exempted, reason being that a person, who is the sole beneficiary under a will, is not required to undertake duties of an administrator who in the said capacity, is expected to maintain true accounts and a complete inventory of the estate of the deceased and administer the said estate. The aforesaid line of thought has been expressed in the cases of Sanjay Suri (supra), Sudershan K. Chopra (supra) and Richa Pardeshi (supra).
11. The same view finds resonance in cases where there are more than one beneficiary/legatee of the estate of the deceased. While reiterating the principle that the objective of testamentary and intestate jurisdiction is to enable the Court to accord legitimacy and authenticity by giving its seal of approval to succession of the estate of the deceased, the courts have observed that the ultimate objective is of grant of succession and to realize the said objective, the statutory provisions and rules ought to be interpreted in a manner that are in furtherance to realizing the intention of the deceased, instead of obstructing it by getting hypertechnical. At the same time, the courts have been cautious in cases of intestate succession for the reason that a greater degree of care is required to be taken when an administrator is to be appointed with a surety and security taken for due administration of the estate of the deceased.
12. In the present case, the petitioners are the natural heirs of the deceased, late Shri Tarini Prasad Sinha. Petitioners No.2 and 3 have issued letters of authorization in favour of the petitioner No.1 authorizing him to pursue the case on their behalf and they have no objection to the letters of administration being granted in favour of the petitioner No.1. The citations that have been issued in the press have not elicited any objections from any quarter. Being satisfied with the evidence produced by the petitioners, letters of administration were granted in favour of the petitioner No.1, vide order dated 18.9.2013. After the grant of the letters of administration, petitioner No.1 has already furnished the Administration Bond and deposited the court fee stamps and now he seeks exemption from filing the surety bond.
13. In view of the fact that letters of administration have been granted to the petitioner No.1 in the absence of any contest, this Court is of the opinion that the condition of filing a Security Bond for the entire value of the estate of the deceased, assessed at `6,37,60,383/- would be extremely onerous on him. It is therefore deemed appropriate to allow the present application and permit the petitioner No.1 to furnish a Surety Bond for a sum of ?10 lacs (rupees ten lacs) as this would serve the purpose without unnecessarily burdening him. Needful shall be done within two weeks. ”

6. Further, in Arvind Nand v. State [2020:DHC:1457], this Court has observed as under:
“10. The settled case law, therefore, clearly lays down the following principles: – (1)The imposition of a condition for furnishing an indemnity/security is at the discretion of the Court.
(2)Whenever the Court is of the opinion that a condition is required to be imposed due to any debts and the fact that there is a possibility of other claimants raising claims, the condition may be imposed.
(3)In every case involving the grant of a succession certificate, a mechanical approach of imposing a condition for furnishing the surety/security and insisting on the indemnity bond is not required.
(4)When an exemption from filing any surety is sought, the Court has to consider the entire conspectus and exercise its discretion depending on the facts of each case, in accordance with law.
(5) As held by the ld. Division Bench of this Court in Rajesh Kumar Sharma (supra), the imposition of a condition is not mandatory.”

7. Considering the above decisions, and the fact that the probate in respect of the Will dated 9th May, 2017 has been granted to the Petitioner uncontested, this Court is of the opinion that the requirement of furnishing of the surety bond can be dispensed with. Also considering that there were no objections at all to this petition and probate has already been granted, in terms of the settled law, the Petitioner is exempted from filing the surety bond.
8. Application is disposed of. No further orders are called for.

PRATHIBA M. SINGH
JUDGE
MAY 20, 2024
Rahul/dn

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