JUHI MISHRA vs STATE OF NCT & ORS.
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 3rd May, 2024
+ TEST.CAS. 65/2018
JUHI MISHRA
W/o Pramod Kumar Mishra
Flat No. C-501, Jagran Apartments,
Plot No.17, Sector 22, Dwarka,
New Delhi-110077.
….. Petitioner
Through: Mr. Rajesh Rai and Mr. Rohan Rai, Advocates.
versus
1. STATE OF NCT
Through Revenue Department
2. SMT. SHANTI DEVI
W/o Late Diva Kant Thakur
R/o Flat No.193, Vishwas Apartments,
Plot No.6A, Sector-23,
Dwarka, New Delhi-110077.
3. SMT. POONAM JHA ANAND
W/o Sh. Vinay Kumar Anand
R/o Flat No.2D, Block-C, Ideal Regency,
46, DH road, Thakur Pukur,
Koklata, 700063, West Bengal.
4. SH. PRAKASH CHANDRA JHA
H/o Late Smt. Seema Jha
R/o Flat No.262, Vishwas Apartments,
Plot No.6A, Sector-23, Dwarka,
New Delhi-110077.
5. SH. PRASHANT JHA
S/o Late Smt. Seema Jha,
R/o Flat No.262, Vishwas Apartments,
Plot No.6A, Sector-23, Dwarka,
New Delhi-110077.
6. SMT. SONALI PRIYA JHA
D/o Late Smt. Seema Jha
R/o Flat No.262, Vishwas Apartments,
Plot No.6A, Sector-23, Dwarka,
New Delhi-110077.
7. SMT. AMRITA MAITHIL
D/o Mrs. Juhi Mishra
Flat No.C-501, Jagran Apartments,
Plot No.17, Sector 22, Dwarka,
New Delhi-110077.
8. MS. KADAMBARI JHA
D/o Mrs. Poonam JhaAnand
R/o Flat No.2D, Block-C, Ideal Regency,
46, DH Road, Thakur Pukur,
Kolkata, 700063, West Bengal
….. Respondents
Through: None.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
1. The petitioner, Smt. Juhi Mishra w/o Shri Pramod Kumar Mishra, has filed the present Petition under Section 276 and 278 of the Indian Succession Act, 1925 for grant of Letter of Administration in respect of the last Will of Late Shri Diva Kant Thakur, dated 06.04.2012.
2. Late Shri Diva Kant Thakur expired on 06.04.2017. He was survived by his wife Smt. Shanti Devi/ respondent No. 2 and three daughters i.e. Smt. Juhi Mishra /Petitioner, Smt. Poonam Jha/respondent No.3, and late Smt. Seema Jha (represented by her legal heirs viz. her husband Sh.Prakash Chandra Jha/respondent no. 4 and her son Sh. Prashant Jha/respondent No. 5, and daughter Smt. Sonali Priya Jha/respondent No. 6); and Smt. Amrita Maithil/respondent No. 7, daughter of the petitioner and Smt. Kadambari Jha/respondent No. 8,daughter of respondent No. 3.
3. The Testator i.e. Late Shri Diva Kant Thakur, s/o Sh. Jokhe Lal Thakur,was last residing at Flat No.193, Vishwas Apartments, Plot No. 6A, Sector-23, Dwarka, New Delhi. He left behind his last and final Will dated 06.04.2012whereby he bequeathed the immovable properties owned by him in the following manner: –
I, Diva Kant Thakur, S/o Sh Jokhe Lal Thakur, a permanent resident of Village and P.O. Tiswara Harlochaupur, P.S. Sarairanjan Distt. Samastipur Bihar, presently residing at Vishwas Apartments, flat no. 193, Plot No. 6A, Sector 23, Dwarka, New Delhi-110075 declare my WILL in writing which will be effective after my death which is as follows:
A
i) Flat No 193 in Vishwas Apartments, Plot no 6A, Sector 23, Dwarka, New Delhi-110075 will go to my eldest daughter Ms. Juhi Mishra W/o Sh. Pramod Kumar Mishra, residing at Jagran Apartments, Flat No. C 501, Plot No. 17, Sector 22 Dwarka, New Delhi- 110075
ii) Flat No. 203 in Shanti Niwas Apartments located at Dhirachak, Anisabad, Patna 800002 will go to my second daughter Seema Jha w/o Sh Prakash Chandra Jha, residing at Krishna Kunj Apartments, Flat No. 202, Gandhinagar-382421, Ahamdabad, Gujrat.
iii) Flat no 201 in Shanti Niwas Apartments located at Dhirachak, Anisabad, Patna-800002 will go to my third daughter Poonam JhaAnand w/o Vinay Kumar Anand resident of Village-Taruni, Distt. Darbhanga, Bihar.
iv) Flat no 202 in Shanti Niwas Apartments located at Dhirachak, Anisabad, Patna-800002 will go to my eldest daughter Ms. Juhi Mishra w/o Sri Pramod Kumar Mishra.
B. Distribution of cash as FD, PPF, and Saving accounts –
In case of my death before my wife Shanti Devi, she willget Rs. 15 Lac.
ii) Rs. 5 Lac will be kept reserved with my eldest daughter for our (self and wife) Shradh (last rites).
iii)Rs. 1 Lac will also be kept reserved with my eldest daughter for our (self and wife) Shradh anniversary to be performed at my Natini (granddaughter) place. Tiswara and feast may be given to villagers if possible.
iv) Rs. 5 lac will go to my Natini (granddaughter) Amrita Maithil, D/o Juhi Mishra, my eldest daughter.
v) Rs. 5 Lac will go to my third Natini (granddaughter) KadambriJhaAnand, D/o Poonam JhaAnand, my third daughter.
C. Inherited landed property located at my Natini’s place Village and P.O. Tiswara-Harlochaupur, P.S. SarairanjanDistt. – Samastipur, Bihar will have joint ownership of all my three daughters. For sale of any part of land will require the consent of all three daughters.
D. After distributing the cash as stated above the remaining cash will be equally distributed among my three daughters.
4. The Will of the Testator was attested by two witnesses, namely Sh. Ajit Rohilla and Sh. Prabhat Kumar Mishra. Sh. Ajit Rohilla has filed his Affidavit Ex. PW-1/A stating that he was present and saw the Testator sign and affix his signature on the Will dated 06.04.2012.
5. The present petition has thus, been filed for grant of Letter of Administration in respect of the last Will dated 06.04.2012of Late Shri Diva Kant Thakur.
6. Citation was received vide Order dated 26.03.2019 were published in daily newspaper The Statesman (English Edition) on 01.02.2019. Also, no third person has filed objections to the petition pursuant to the citation.
7. The legal heirs of the deceased Shri Diva Kant Thakur, i.e. respondent No. 2 to respondent No. 8, have filed their respective Affidavit giving No Objection to the grant of Letter of administration.
8. The Valuation Report in respect of property bearing address Flat No. 201, 202, 203 in Shanti Niwas Apartment, Dhirachak, Anisabad, Patna -800002 was submitted by Sub-Divisional Officer, Anisabad, Patna Sadar. A verified copy of the Minimum Valuation Register (MVR) of the land and plot of Dhirachak, Anisabad, Patna-2, effective 01.02.2016, determined by the District Valuation Committee was submitted by Sub-Divisional Officer, Anisabad, Patna Sadar.
9. PW-1Sh. Ajit Rohilla, the Attesting Witness has deposed in his affidavit of evidence Ex. PW-1/A that Will Ex. PW1/2 dated 06.04.2012, of deceased Late Shri Diva Kant Thakur was his last and final Will which bears the signature of the Testator at Point A and his signature at Point B. He has also proved the Death Certificate of the Testator as Ex. PW-1/1, Death Certificate of deceased daughter of Testator, Mrs. Seema Jha as Ex. PW-1/3, Copy of Certificate of Share Certificate PW-1/7 and copies of 07 FDRs with true typed copies of 02 FDRs in the name of the Testator as Mark-B (colly).
10. The Petitioner as PW-2 has deposed in her affidavit of evidence Ex. PW-2/A that Will dated 06.04.2012 Ex. PW1/2 was her fathers last and final Will.
11. Submissions heard.
12. The first aspect in the Testamentary Petition is to establish due execution of the Will. Section 63 of Indian Succession Act, 1925 (hereinafter referred to as the Act) provides for the substantive law on Execution of Unprivileged Wills. Section 63 (a) & (b) of the Act, 1925 provides the requisites of a valid Will. It states that the testator must affix his signature on the Will and it shall appear that it was intended thereby to give effect to the writing as a will. Further, 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.
13. Thus, to prove the valid execution of unprivileged wills, it is apposite to establish that – firstly, the Will was duly singed by the testator or bears the affixation of his Mark; secondly, the Mark so affixed or the signatures of the testator was so placed that it appears that it was indented to be executed by the Testator in the manner as specified and with a dispensing mind free from all extraneous influences; thirdly, it 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 further provides the mode of proof of the Will and requires that at least one attesting witness to the Will, must be examined.
15. The execution of the Will has been proved by PW-2, Smt. Juhi Mishra who, in her affidavit of evidence Ex. PW-2/A has deposed that her father late Shri Diva Kant Thakur expired on 06.04.2017. He last resided at Flat No. 193, Vishwas Apartments, Plot No. 6A, Sector-23, Dwarka, New Delhi.PW-1 has further deposed that her father had left his last and final Will dated 06.04.2012 Ex. PW-1/2 which was executed by him and that the testator was of sound and deposing mind at the time of signing.
16. PW-1, Sh. Ajit Rohilla, the Attesting Witness corroborated the testimony of PW-1 and deposed in his affidavit of evidence Ex. PW-1/A that Death Certificate of Late Shri Diva Kant Thakuris Ex.Ex. PW-1/1. He executed his last and final Will dated 06.04.2012,Ex. PW1/2. The Will bears the signature of the Testator at Point A and his signature at Point B.
17. The Petition is not contested by the Respondents, the other legal heirs of the deceased. Respondent No. 2 to 8 are beneficiaries under the Will and have given their No-objection/consent by way of Affidavits. Also, no third person has filed any objection pursuant to the citation in the Newspapers.
18. The unchallenged and unrebutted testimony of PW-2 Smt. Juhi Mishra which is supported by PW-1 Sh. Ajit Rohilla, attesting witness, proves the genuineness and the authenticity of the Will dated 06.04.2012 Ex. PW-1/2 of Late Shri Diva Kant Thakur.
19. The present petition is hereby allowed and Letter of Administration with Will annexed, is hereby granted in favour of the Petitioner.
20. The Petitioner shall furnish Administrative Bond and 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 Administration shall be issued in respect of the Will dated 06.04.2012.
22. List before the Joint Registrar on 28.05.2024 for depositing of the bond.
(NEENA BANSAL KRISHNA)
JUDGE
MAY 3, 2024/va
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