RAJENDRA PRASAD GOYAL vs THE GOVERNMENT OF NCT OF DELHI & ANR.

2024-02-16 Information

$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:16th February, 2024
+ TEST.CAS. 82/2021
RAJENDRA PRASAD GOYAL (DECEASED)
Through LR Sh. Vijay Krishan Goyal
S/o Late Mr. Rajendra Prasad Goyal
R/o South City, Tower – 5, Flat 11A, 375,
Prince Anwar Shah Road, Jodhpur Park,
Circus Avenue, Kolkata – 700068. ….. Petitioner
Through: Mr. Akshay Sapre and Mr. Abhijeet Swaroop, Advocates.

Versus

1. THE GOVERNMENT OF NCT OF DELHI
National Capital Territory of Delhi
(Email::- standingcounselgnctd@gmail.com) …Respondent No. 1

2. CHIEF REVENUE CONTROLLING AUTHORITY,
Department of Revenue,
Govt. of NCT of Delhi,
5, Sham Nath Marg,
Delhi-110054
Email: divcom@nic.in ….Respondent No.2

Through: Mr. Divyam Nandrajog, Panel Counsel, GNCTD with Mr. Jatin Dua, Advocate for R1.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (Oral)

1. The petitioner, Mr. Rajendra Prasad Goyal s/o Late Mr. Uma Shankar Goyal, has filed the present Petition under Section 276 of the Indian Succession Act, 1923 for grant of Probate in respect of the last Will of Late Mr. Uma Shanker Goyal, dated 5th February 2008. The Petitioner, Sh. Rajendra Prasad Goyal and Sh. Vijay Krishan Goyal are the named Executors of the Will. Sh. Rajendra Prasad Goyal (since deceased) was one of the attesting witnesses to the Will and also one of the beneficiaries of the Will.
2. The petitioner has stated that the Testator i.e. Mr. Umashanker Goyal, s/o the Late Mr. Totaram Goyal, was last residing at Chandra Priya Apartments, Flat No. 40, Pocket A, Sector 8, Rohini, Delhi 110085 and expired on 11.08.2020. He left his last Will dated 05.02.2008 which mentions that the below mentioned properties comprise of the estate of the Testator at the time of execution of the Will:-
I. Immovable Properties
a) One House property situated at A-78/3 Wazirpur Industrial Area, Delhi – 110 052. (“Wazirpur House”);
b) Second House property situated at Chandrapriya Apartments, Flat No. 40, Pocket A, Sector 8, Rohini, Delhi 110085. (“Rohini Flat”); and
c) Interest in the House Property and Land situated at Bhiwani, Haryana., as a coparcener in the Hindu Undivided Family called Umashanker Goyal & Sons. (“Bhiwani House & Land”)

II. Movable Properties/Assets
a) Loans given to Shree Niketan Sarees Pvt. Ltd., 82/114 Bhadaini, Varanasi – 221 005, U.P. (IT PAN No. (AAFCS2865P);
b) Loans given to Shri Niketan (Bangalore}, No. 83 J.M. Road, 2nd Floor, Bangalore – 580 002, Karnataka (IT PAN No. AABHG1189B);
c) Loans given to Shree Niketan Creations Pvt. Ltd., 107 A Park Street, 3rd Floor, Kolkata – 700 016 (IT PAN No. AAHCS5044C).

3. Late Mr. Umashanker Goyal is survived by the following legal heirs:-

i. Mr. Rajendra Prasad Goyal (Petitioner/ son of the Testator);
ii. Mrs. Shakuntala Goyal (wife of the Petitioner/ daughter-in-law of the Testator);
iii. Mr. Vijay Krishna Goyal (son of the Petitioner / grandson of the Testator);
iv. Mr. Atul Krishna Goyal (son of the Petitioner / grandson of the Testator);
v. Mrs. Anupama Garg (married daughter of the Petitioner and grand-daughter of Testator);
vi. Ms. Vidushi Goyal (granddaughter of the Petitioner / great-granddaughter of the Testator);
vii. Ms. Vedika Goyal (granddaughter of the Petitioner / great-granddaughter of the Testator);
viii. Mr. Sanjeev Kanodia (grandson of the Petitioner/ great-grandson of the Testator);
ix. Ms. Yamini (granddaughter of the Petitioner/ great-granddaughter of the Testator).

4. During his life time, Late Mr. Uma Shanker Goyal executed his last Will dated 5th February 2008, whereby he bequeathed the immovable properties and moveable assets owned by him in the following manner:-
Now I direct for distribution of my movable and immovable properties/assets amongst my heirs and legatees.

1. My Wazirpur house shall be inherited by my son Rajendra Prasad Goyal and my grandson Vijay Krishna Goyal absolutely having equal rights in the said immovable property along with all right, title and interest in the said property and. any nature of income like rent, commission or other types of income on account of said property by any other person. No other person or persons shall have any right, title and interest or any claim whatsoever nature in the said property.

2. My Rohini flat shall be inherited by Shakuntala Goyal, the wife of my son and Smriti Goyal, the wife of my grandson Vijay Krishna Goyal absolutely having equal rights in the said immovable property along with all right, title and interest in the said property and any nature of income like rent, commission or other types of income on account of said property by any other person. No other person or persons shall have any right, title and interest or any claim whatsoever nature in the said property.

3. My movable assets shall be realized and out of such realization the same shall be distributed in the following manner:-
a) My son Rajendra Prasad Goyal shall have 20%
b) Shakuntala Goyal, wife of my son shall have 10%
c) My grandson Vijay Krishna Goyal shall have 25%
d) Smriti Goyal, wife of my grandson shall have 25%
e) My grandson Atul Krishna Goyal shall have 15%
f) Seema Goyal, wife of my grandson shall have 5%

That in case of any Nomination, Joint Account with any persons in respect of my movable assets such nominee or joint holder shall realize the money and same will be included in the movable estate left by me for distribution to be made as above.

4. That my right, title and interest in movable and immovable properties of H.U.F. under the name and style of Umashanker Goyal & Sons shall remain in the H.U.F . and no other person or persons shall have any right, title and interest in the same and the same shall be enjoyed by my son and grandson and their lineal descendents who are/will be coparceners in the said H.U.F.

5. That any of my right, title and interest which have not been specified hereinabove shall be inherited by the persons who will inherit my movable assets in the same proportion which have been referred in the case of distribution of my movable assets.

5. He has further stated that Mr. Rajendar Prasad Goyal, the son of the Testator and Mr. Vijay Krishan Goyal, the grandson of the Testator, shall be the executors of the last Will dated 05.02.2008 in the following terms:-
I hereby appoint my son Rajendra Prasad Goyal and my Grandson Vijay Krishna Goyal as executors of this Will. Both of them shall act jointly. After my death they shall distribute my movable and immovable assets amongst my heirs/legatees without obtaining probate. However, if they have to obtain probate same may be obtained without making deposit for same.
6. The Will of the Testator was duly attested by three witnesses, namely the Late Mrs. Kailasho Devi Goyal (wife of the Testator), Mr. Rajendra Prasad Goyal (Petitioner) and Mrs. Anupama Garg (Granddaughter of the Testator). However, only two out of the three attesting witnesses above named have survived the Testator i.e. the Petitioner and Mrs. Anupama Garg. As such, the present Petition has been verified by them as per the provisions of Section 281 of the Indian Succession Act, 1925.
7. Additionally, the Will on date of the present petition, only relates to the bequeathing of the aforementioned Immovable properties as the Movable Assets, have all been recovered/realized after the execution of the Will and have been appropriately distributed in terms of the Will, before the demise of the Testator on 11.08.2020.
8. A prayer is, therefore, made that a Probate in respect of the last Will dated 05th February 2008 of Late Mr. Umashanker Goyal may be granted and all the movable assets may be transferred in terms of the last Will.
9. Citations were published in daily newspaper ‘The Times of India’ New Delhi, English Edition; ‘Nav Bharat Times’ New Delhi, Hindi Edition; The Time of India’ Kolkata, English Edition as well as Ei Samaj Kolkata, Bengali Edition (Vernacular) on 18.10.2021.
10. The legal heirs of the deceased have filed their respective Affidavits containing their No-Objection/ consent to the grant of probate. (Exhibit PW1/4, PW1/5, PW1/6, PW1/7, PW1/8, PW1/9, PW1/10 and PW1/11).
11. The Valuation Report in respect of property bearing No. A-3/40, A-Block, Pocket-3, Sector-8, Rohini, Delhi-110085, Area Admeasuring 83 Sq. Mtr. i.e. 90 Sq. Yrd. was submitted by Tehsilsar, Saraswati Vihar valuing the said property at Rs 59,82,640/-.
12. The Valuation Report in respect of A-78/3, Wazirpur Industrial Area, Delhi-110052, Area Admeasuring 335 Sq. Mtr (Approx.) i.e. 400 Sq Yrd (Approx.) was submitted by Tehsilsar, Saraswati Vihar valuing the said property at Rs 2,35,25,776/-.
13. Sh. Rajender Kumar Goyal, Executor who filed the present petition, expired on 03.07.2023. Learned Joint Registrar in I.A. No. 19619/2023 u/O XXII Rule 3 CPC, vide Order dated 01.11.2023, substituted Sh. Vijay Krishan Goyal, the other named executor in the Will, as the Petitioner on the demise of original Petitioner/ Executor.
14. PW2 Sh. Vijay Krishan Goyal, the appointed Executor, tendered his Affidavit in Evidence dated 10.01.2024 as Ex. PW2/A and proved the execution of original Will of Late Mr. Umashanker Goyal which is Ex.PW1/A. He also proved the original Death Certificate of his grandfather/ Late Mr. Umashanker Goyal as Ex.PW1/3.
15. PW1 Ms. Anupama Kumar Garg, the only surviving attesting witness to the Will dated 05.02.2008 of Late Mr. Umashanker Goyal i.e. Ex. PW1/A, tendered her evidence by way of affidavit dated 02.09.2021 Ex.PW1/1. She deposed that she was one of the witnesses to the last Will dated 05.02.2008 and that the Testator was her grandfather. The Will was signed by the deceased, her grandmother, her father and herself in the presence of each other and that the testator was of sound and deposing mind at the time of signing. She also produced a copy of his Aadhaar Card, exhibited as PW1/B (OSR).
16. Submissions heard.
17. Section 63(c) of the Indian Succession Act, 1925 provides for the mode for execution of Will. It states that 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.
18. To prove the execution of Will, PW-2 Sh. Vijay Kishan Goyal deposed that the deceased Sh. Umashanker Goyal executed his last Will on 05.02.2008. The immovable properties as stated in the Will were the self-acquired properties of the deceased.
19. Section 68 of Indian Evidence Act further provides the mode of proof of the Will and requires that at least one attesting witness to the Will must be examined.
20. Accordingly, PW1 Ms. Anupama Kumar Garg, the only surviving attesting witness to the Will dated 05.02.2008, has deposed that the Will was signed by the testator Late Sh. Umashanker Goyal in her presence. Further, she and the other witnesses had also signed the Will in the presence of each other.
21. The petition is not contested by the other beneficiaries of the Will, who are also the legal heirs of the deceased. They have filed their respective affidavits giving their No-Objection to the grant of Probate. Also, no objection has been received from any third person, pursuant to the citation.
22. The uncontested testimony of the PW-2, Sh. Vijay Krishan Goyal and PW-1, Ms. Anupama Kumar Garg, the only surviving attesting witness to the Will dated 05.02.2008, has proved the Will Ex.PW1/A as the last and final Will of deceased Shri Umashanker Goyal.
23. The unchallenged and unrebutted testimony of PW-2/Executor is supported by the testimony of the attesting witness namely PW1 Ms. Anupama Kumar Garg proves the genuineness and the authenticity of the Will dated 05.02.2008 Ex PW1/A of Shri Umashanker Goyal, which is held to be proved.
24. Probate in respect of the Will dated 05.02.2008 is hereby granted in favor of the Petitioners substituted LR/ named Executor, Sh. Vijay Krishan Goyal, subject to payment of requisite court fees.
25. Sh. Vijay Krishan Goyal shall furnish Administrative Bond with one Surety to the satisfaction of the learned Joint Registrar General of this court.
26. The valuation of both properties filed by the Tehsildar concerned is on record.
27. On payment of the requisite court fee and other formalities noted above, the Probate in respect of the Will dated 05.02.2008 shall be issued by the Registry.
28. The petition stands allowed and accordingly disposed of in the above terms.
29. List before the Joint Registrar on 27.02.2024 for depositing of the bond.

(NEENA BANSAL KRISHNA)
JUDGE

FEBRUARY 16, 2024/JN

Test Cas. 82/2021 Page 1 of 9