DR. DHARAM CHAUDHURY vs THE STATE & ORS

2024-04-29 Information

$~24

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision:29th April, 2024
+ TEST.CAS. 68/2017
Dr. Dharam Chaudhury,
S/o Late Sh. Ishwar Deen Chaudhury,
R/o 95, Block-E, MIG, DDA Flats,
Saket, New Delhi-110017 Petitioner

Through: Mr. Vinod Kumar, Advocate.
versus

1. THE STATE & ORS
2. Mrs. Kalawati Chaudhury
Wife of Late Sh. Ishwar Deen Chaudhury,
R/o 95, Block-E, MIG, DDA Flats,
Saket, New Delhi-110017

3. Madhu Verma,
W/o Sh. Ajay Verma
R/o 153-5255, Palmetto Place,
Mississauga Ontario,
L5M0H2

4. Dr. Sushila Kumar,
W/o Sh. Rajesh Kumar
R/o 640, Khra Khurd,
Gurukul Road, Delhi-110082 ….. Respondents
Through: Mr. Divyam Nandrajog, Panel Counsel, GNCTD with Ms. Surbhi Soni, Advocate.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)

1. The petitioner, Dr. Dharam Chaudhury, has filed the present petition under Section 276 of the Indian Succession Act, 1923 for grant of Probate in respect of Will dated 18.09.2014 executed by his father late Sh. Ishwar Deen Chaudhury.
2. Briefly stated, late Sh. Ishwar Deen Chaudhury was the owner and in possession of property bearing number 95, Block-E, MIG, DDA Flats, Saket, New Delhi-110017. Shri Ishwar Deen Chaudhury expired on 10.01.2017 and was survived by his wife Sm. Kalawati Chaudhury (respondent No. 2), son Dr. Dharam Choudhury (petitioner) and two daughters Madhu Verma & Dr. Sushila Kumar (respondent Nos. 3&4 respectively).
3. The deceased acquired the following immovable and movable properties during his lifetime:
Immovable properties :
a. E-95, DDA Flats, Saket New Delhi-110017.
b. Flat No. 1596, Sector-10, Housing Board Gurgaon, Haryana.
c. Plot No. 5A and 5 B and 50, KH. No. 24/22, Ground Floor BLK-A Deep Vihar Pansali, Near Near Balaji Mandir, Rohini, Delhi
d. Plot No. 15, Khasra No. 24/23, Ground Floor, Block-A, Near Balaji Mandir, Deep Vihar, Pansali, Rohini, New Delhi-110042
e. 9/175, Galla Mandi, Bachrawan, Distt. Rai Barely, Uttar Pradesh.
f. Agricultural Land in Village Rampur Moidduinpur, Post-Thulandi, Bachrawan, Distt. Rai Barely, Uttar Pradesh.
Movable properties:
a. Bank accounts
b. FDR’s
c. Post Office
d. Shares
4. Late Shri Ishwar Deen Chaudhury during his life time, while possessing sound state of mind without any force, pressure or undue influence, executed a Will dated 18.09.2014 which is his last and final testament in the presence of two attesting witnesses.
5. The petitioner, has therefore, sought for a Letter of Probate on the basis of Will dated 18.09.2014.
6. Citations were published in daily newspaper The Statesman English Edition on 23.01.2018 and Jan Satta Hindi Edition on 23.01.2018.
7. Valuation report of property bearing E-95, DDA Flats, Saket New Delhi-110017 has been filed by the SDNT, Gurugram, Haryana and Rai Barely, Uttar Pradesh.
8. The other legal heirs of the deceased Shri Ishwar Deen Chaudhury, Respondent Nos. 2 to 4, have not filed their Objections before this court despite service. Also, no third person has filed objections to the petition pursuant to the citation.
9. PW1 Dr. Dharam Chaudhary, petitioner tendered his Evidence by way of Affidavit Ex PW1/A. He produced the address proof Ex PW1/1 and Death Certificate Ex PW1/2 of his father. He also produced a copy of the Will dated 18.09.2014 Mark A.
10. PW2 Mr. Anil Sharma, the advocate who drafted the Will dated 18.09.2014 and is also the attesting witness, tendered his affidavit as Ex. PW2/A to prove the execution of Will of Late Shri Ishwar Deen Chaudhury Ex PW2/1.
11. Submissions heard and the record perused.
12. The relevant portions from Will dated 18.09.2014 are as under:
As long as 1 am alive, I shall remain the owner of my movable and immovable properties. In absence of me (mortal call of God), my all properties movable and immovable shall devolve in the mode and manner as mentioned below.
My daughters namely Smt. Madhu Verma and Dr. Sushila Kumar are blissfully married and I had give them substantial gifts/jwellery at the time of their respective marriages and thus not making any provision for them from my estate.
I hereby device and bequeath all my aforementioned immovable properties and movable properties (including Bank accounts, FDR’s, Post Office and Shares) in favour of my son Dr. Dharam Chaudhary, exclusively, however my wife Smt. Kalawati Chaudhary shall have the right of residence in all my properties as per her wishes. I have drawn this Will in order to avoid any family conflict amongst my legal heirs after my demise.
I hereby appoint my son Dr. Dharam Chaudhary as sole executor of the will.

13. Section 63(c) of the Indian Succession Act, 1925 provides that a Will must be attested by two or more witnesses, each of whom should have seen the testator sign or put his mark on the Will. The Will must be signed by the witnesses in the presence of the testator, but it is not necessary that more than one witness should be present at the same time.
14. Section 68 of Indian Evidence Act, 1872 provides the mode of proof of the Will and requires that at least one attesting witness to the Will, must be examined.
15. PW1 Dr. Dharam Chaudhary has deposed that the Will dated 18.09.2014 is the last and final testament of his father which has been duly signed by two attesting witnesses. He has further deposed that his father was in a sound state of mind and executed the Will without any force, pressure or undue influence. Further, he is named as the Executor in the Will. The unchallenged testimony of PW-1 thus, proves the execution of Will.
16. The testimony of PW-1 is corroborated by PW2 Mr. Anil Sharma, who has deposed that he is a practising advocate and has known the Late Shri Ishwar Deen Chaudhury since 1996. The Will Ex.PW2/1was drafted by him as per the instructions of Shri Ishwar Deen Chaudhury. The contents of the Will were explained and the Will was voluntarily signed by the deceased on all the three pages, at point A on 18.09.2014 at his residence. Thereafter, both witnesses had signed the Will in the presence of each other and the testator at point A.
17. All the respondents had been duly served. However, the petition is not contested by respondent Nos. 2 to 5 who are the mother and sisters of the petitioner and Objections have not been filed on their behalf. Also, no third person has filed any objection pursuant to the citation in the Newspapers.
18. The unchallenged and unrebutted testimony of PW1 Dr. Dharam Chaudhary and PW2 Mr. Anil Sharma proves the genuineness and authenticity of the Will dated 18.09.2014 Ex PW2/1.
19. A Letter of Probate in respect of the Will dated 18.09.2014 Ex PW2/1 is hereby granted in favour of the petitioner, the named Executor subject to payment of requisite court fees.
20. Petitioner shall furnish Administrative Bond with one Surety to the satisfaction of the learned Joint Registrar General of this court.
21. On payment of the requisite court fee and other formalities noted above, the Letter of Probate in respect of the Will dated 18.09.2014 Ex PW2/1, shall be issued by the Registry.
22. The petition stands allowed and accordingly disposed of in the above terms.
23. List before the Joint Registrar on 16.05.2024 for depositing of the bond.

(NEENA BANSAL KRISHNA)
JUDGE
APRIL 29, 2024/RS

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