SHRI SUMAN KUMAR PAHUJA vs STATE AND OTHERS

2024-03-14 Information

$~31

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 14th March, 2024
+ TEST.CAS. 8/2016
SHRI SUMAN KUMAR PAHUJA ….. Petitioner
Through: Mr. Parag Chawla and Ms. Muskan Aggarwal, Advocates.

versus

1. STATE ….. Respondent No. 1
2. SHRI ANIL KUMAR PAHUJA ….. Respondent No. 2
3. MRS. KAMLA DHINGRA ….. Respondent No. 3
4. MRS. RAMA BIDANI ….. Respondent No. 4
5. MRS. PUSHPA AROGA ….. Respondent No. 5
Through: Mr. S.K. Tyagi, Advocate for R-2.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
1. The petitioner, Shri Suman Kumar Pahuja s/o Late Shri Kishan Chand Pahuja, has filed the present Petition under Section 276 of the Indian Succession Act, 1925 for grant of Probate or Letter of Administration in respect of the last Will of Late Shri Kishan Chand Pahuja, dated 21.09.1992. There is no named executor of the Will. Petitioner, Suman Kumar Pahuja is the elder son and Respondent No.2 Anil Kumar Pahuja is the other son. Both the sons are beneficiaries of the estate and Respondent No. 3, Kamla Dhingra, Respondent No. 4 Rama Bidani and Respondent No. 5 Pushpa Arora are the married daughters of the deceased.
2. The petitioner states in the Petition that the Testator i.e. Late Shri Kishan Chand Pahuja, s/o the Late Shri Walaya Ram Pahuja, was last residing at House No. 45, Shanti Vihar, Delhi 110092. He expired on 10.07.1999 leaving behind his last and final Will dated 21.09.1992. Late Shri Kishan Chand Pahuja is survived by his wife Sheela Rani Pahuja (who died on 31.12.2000), two sons and three married daughters who are party to the present Petition.
3. During his life time, Late Shri Suman Kumar Pahuja executed his last Will dated 21.09.1992, whereby he bequeathed the immovable properties and moveable owned by him in the following manner:-
7. That I hereby distribute my property after my death as under:-
(i) The ground floor of property No.45, Shanti Vihar, Delhi shall be owned occupied by my wife Mrs. Sheela Rani Pahuja and after her death by Shri Anil Kumar Pahuja and his successor.
(ii) That first floor (only) is given to my wife and after her death to Shri Suman Kumar Pahuja, my elder son and his successors.
(iii) That the roof of the first floor including further right to construction of Ilnd floor and above, to my son Anil Kumar Pahuja and his successors, with free use of passage and construction facility.
8. That my son Suman Pahuja has nothing to do with the usage of ground floor or the roof of the 1st floor. He can enjoy all rights pertaining to the 1st floor only i.e. use of free passage etc. But he was no right to interfere in the construction of IInd Floor or more by Sh. Anil Kumar Pahuja or his successors, for any use of the roof of the first floor and above because Anil has served me more.
9. That if any other movable/immovable property is acquired or came into existence in my name except mentioned above, I leave it to my wife to own the same and dispose off in any way she may like so to do.

4. The Will of the Testator was attested by two witnesses, namely Late Mr. H.K. Choudhary and Late Mr. K.S.Ilmwadi Witness No. 2. However, both the witnesses are since deceased. Sh. Vineet Choudhary the Legal representative/son of attesting witness No. 1, Late H.K. Choudhary (Attesting Witness) has filed his Affidavit Ex. RW3/A stating that his father H.K. Choudhary had signed as attesting witness No. 1 on the Will dated 21.09.1992.
5. A prayer is, therefore, made that a Probate or Letter of Administration in respect of the last Will dated 21.09.1992 of Late Shri may be granted and all the immovable and movable assets may be transferred in terms of the last Will.
6. The legal heirs of the deceased/ Respondent No. 2 to 5 have filed their respective Affidavits giving their No-Objection/ consent to the grant of Probate or Letter of Administration.
7. The Valuation Report in respect of property bearing House No. 45, Shanti Vihar, Delhi 110092, Area Admeasuring 165.34 Sq. Mtr. was submitted by Executive Magistrate (Vivek Vihar), Shahdara, Delhi valuing the property at Rs. 2,32,73,184/-.
8. PW-1 is the Petitioner who deposed in his affidavit of evidence Ex.PW1/A that Will Ex. PW1/1 dated 21.09.1992, of deceased Shri Kishan Chand Pahuja was his last and final Will which was duly registered in the Office of the Sub-Registrar- IV, North East, Seelampur, Delhi, on 21.09.1992. The Will bear the signatures of the Testator at point A and of the attesting witnesses at point B & C.
9. PW-2 Mr. Navin, Record keeper from Department of Delhi Archives, New Delhi presented the original Book no. III Vol. 645 pertaining to Sub-registrar IV, North East, Seelampur, Delhi in regard to Ex. PW 1/1 Will registered on 21.09.1992.
10. Respondent No. 2, Anil Kumar Pahuja, son of the testator, appeared as RW-1. In his affidavit of evidence Ex. RW1/A, he deposed that he recognises the signature at point A as that of his father late Shri Kishan Chand Pahuja, on the Will Ex. PW1/1.
11. RW-2 Ms. Pushpa Arora, who is Respondent No. 5, deposed in her affidavit of evidence Ex. RW2/A that there was no objection for granting probate or letter of administration.
12. RW-3 Sh. Vineet Choudhary is the son of late H.K. Choudhary, the attesting witness who deposed that he was conversant with signatures of his deceased father and identified his signatures at Point B on the Will Ex. PW1/1 dated 21.09.1992.
13. Submissions heard.
14. Section 63(c) of the Indian Succession Act, 1925 provides for the mode of 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.
15. 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.
16. PW-1, Sh. Suman Kumar Pahuja in his affidavit of evidence Ex. PW 1/A deposed that his father late Shri Kishan Chand Pahuja, and the family resides together at bearing House No. 45, Shanti Vihar, Delhi 110092. He died on 10.07.1999, and left his last and final Will dated 21.09.1992 Ex.PW1/1 which bears his signatures at Point A. The Will was duly attested by two witnesses, namely Late Mr. H.K. Choudhary, and Late Mr. K.S.Ilmwadi whose signatures are at point B & C, though both of the witnesses above named are since deceased.
17. RW-1 Anil Kumar Pahuja, Respondent No. 2, in his affidavit of evidence Ex RW1/A, corroborated that he recognises the signature on the Will at point A as that of his father, Late Shri Kishan Chand Pahuja. He further deposed that all legal heirs have admitted the Will to be true and given No Objection to grant of Probate or Letter of Administration.
18. RW-2, Ms. Pushpa Arora, in her affidavit of evidence Ex. RW2/A deposed that there was no objection for granting probate or letter of administration.
19. Section 69 of the Indian Succession Act, 1925 provides for proof where no attesting witness is found. It states that in case where no attesting witness can be found, then it must be proved that the signature of one attesting witness is in the handwriting of that person. The Apex court in Kalyanaswamy v. Bakthavatsalam (2021) 16 SCC 543 held that where both the attesting witnesses to a Will are deceased, it is sufficient to prove that the attestation of at least one attesting witness, is in his handwriting.
20. Accordingly, RW-3 Sh. Vineet Choudhary s/o Late H.K. Choudhary, attesting witness No. 1, deposed in his Affidavit Ex. RW3/A that he was conversant with signatures of his deceased father late H.K. Choudhary and identified the signatures of his father at Point B as attesting witness No. 1, on Will dated 21.09.1992 Ex. PW1/1.
21. The Will is not contested by Respondent No. 2 to 5, the other legal heirs of the deceased and have given their No-objection/consent by way of Affidavits. Respondent No.2 is also the beneficiaries under the Will.
22. The unchallenged and unrebutted testimony of PW-1 Sh. Suman Kumar Pahuja and RW1 Sh. Anil Kumar Pahuja which is supported by the testimony of RW-3 Sh. Vineet Choudhary, son of attesting witness, proves the genuineness and the authenticity of the Will dated 21.09.1992 Ex PW1/1 of Late Shri Kishan Chand Pahuja.
23. Since no objections have been raised against the grant of Letter of Administration in favour of the petitioner, the present petition stands allowed.
24. 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 21.09.1992.
25. The petition is hereby, allowed in the aforesaid terms.
26. List before the Joint Registrar on 27.05.2024 for depositing of the bond.

(NEENA BANSAL KRISHNA)
JUDGE
MARCH 14, 2024/va

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