$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 29th April, 2019
Pronounced on:15th May, 2019
+ TEST.CAS. 40/2012
PREM PRAKASH DABRAL ….. Petitioner
Through: Mr. Sandeep Sharma, Advocate with
Mr. Hunnyveer Singh, Advocate.
versus
STATE ORS ….. Respondents
Through: Respondent No. 5 in person.
JUDGMENT
SANJEEV NARULA, J
1. Petitioner by way of present petition under Section 276 of the Indian
Succession Act, 1925 seeks probate of the Will of late Sh. Kali Prasad
Dabral dated 29th October 2004.
Case of the Petitioner
2. Sh. Kali Prasad Dabral, (hereinafter ‘the deceased’) passed away on 4th
August 2011 and was survived by the four Class-I heirs, Prem Prakash
Dabral (Petitioner No.1), Jaya Prakash Dabral (Respondent No. 2), Renu
Nauriyal (Respondent No.3) and Rekha Mishra (Respondent No. 4). The
deceased was the lawful sole owner of the property bearing no. C- 1/35,
TEST.CAS. 40/2012 Page 1 of 19
Janak Puri, New Delhi and upon his demise the said property has devolved
onto the Petitioner by virtue of the last will and testament of the deceased
dated 29th October 2004. As per this registered will, the deceased also
bequeathed all his money in his bank accounts, pension accounts, NSCs,
FDRs in favour of the Petitioner to the exclusion of the remaining Class-I
heirs. The reasons for exclusion of the Respondents, as have been stated in
the will, are that the elder son, Respondent No. 2, was disowned on 4th
December 1993 from all the moveable and immoveable properties of the
deceased for not performing his duties as a son and for acting beyond the
reach of the deceased. Respondent Nos. 3 and 4 have been excluded from
the will because the deceased had spent a considerable amount in their
marriage and he did not wish to bequeath any further property/money to
them. Petitioner being the sole legatee is entitled to the abovesaid property
to the exclusion of all other family members of the deceased and to the grant
of probate of the Will dated 29th October 2004.
3. At the time of filing of the Petition, Respondent No. 5, wife of
Respondent No. 2, was in possession of a portion of the abovesaid property.
Later, she was directed to hand over the said portion of the property to the
Petitioner vide Judgment dated 22ndJanuary 2014 in RSA 190/2011, titled as
SectionPrem Prakash Dabral v. Shikha Dabral anr.
Proceedings in the Petition
4. The notice in the present petition was issued on 31st May 2012. Chief
Revenue Controlling Authority was directed to submit a valuation report in
TEST.CAS. 40/2012 Page 2 of 19
respect of immovable property No. C- 1/35, Janak Puri. Citations were
directed and published in daily edition of “Statesmen”.
5. On 10th September, 2012, Respondent No. 2 who was present in person
stated that he as well as Respondent Nos. 3 and 4 have no objection to the
grant of probate and would file a No-Objection before the Court.
Subsequently, the No-Objection affidavits were filed andon 2nd April 2013,
Petitioner was directed to file affidavit by way of evidence and the matter
was directed to be listed before the Joint Registrar for tendering of evidence
and marking of exhibits.
6. On 22nd May 2013, statements of PW-1, Sh. Prem Prakash Dabral, PW-2,
Sh. Rakesh Sharma (attesting witness) and PW-3, Sh. S.K. Dabral (attesting
witness no. 2) were recorded.The matter was then listed before Court on 3rd
September 2013, when Ms. Shikha Dabral, wife of Respondent No. 2
appeared and stated that the Will set up by the Petitioner is a collusive Will.
She further stated that Respondent No. 2, her husband had abandoned her
and his minor child and they were left in the premises bearing No. C-1/35,
JanakPuri, New Delhi. The Court permitted her to file objections to the
present petition. On 22ndJuly 2014, she was impleaded as a party to the
present proceedings and arrayed as Respondent No. 5. She was given liberty
to file an affidavit by way of evidence. Subsequently, on her request,
several more opportunities were given to her to file affidavit by way of
evidence, but to no avail.
TEST.CAS. 40/2012 Page 3 of 19
7. In the meantime, Respondent No. 5 filed IA No. 11322/2016, for recalling
the Petitioner for cross-examination. The said application was allowed by
this Court on 12th January 2017 and Respondent No. 5 was permitted to
cross-examine the Petitioner (PW-1). He was cross-examined on several
dates and after closure of the Petitioner’s evidence, Respondent No. 5 was
again directed to file affidavit by way of evidence. She did not avail this
opportunity. Ultimately, on the statement of Respondent No. 5 that she does
not intend to examine any witness, Respondent’s evidence was closed on
27th September 2018.
Evidence led by the Parties
8. Three witnesses deposed on behalf of the Petitioner- Sh. Prem Prakash
Dabral PW-1 (Petitioner), Sh. Rakesh Sharma PW-2, (attesting witness) and
Sh. S.K. Dabral (attesting witness no. 2) PW-3. The testimony of the
aforesaid attesting witnesses has gone un-rebutted and only the Petitioner
has been cross-examined by Respondent No. 5. Respondent No.5 however,
has led no evidence.
Submissions of the parties
9. The Court has heard Mr. Sandeep Sharma, learned counsel for the
Petitioner and Respondent No. 5 who appeared in person along with her
daughter.
TEST.CAS. 40/2012 Page 4 of 19
10. Mr. Sandeep Sharma urged that the Will has been duly proved in
accordance with law. He also argued that there is no opposition to the
present Will as Respondent Nos. 2 to 4, who have a caveatable interest have
filed affidavits stating that they have no objection to the grant of the probate
of the Will in favour of the Petitioner. He further submits that Respondent
No. 5 is raising frivolous objections, only to delay the present proceedings.
The objections raised by her, even otherwise have no basis in law. She did
not lead any evidence despite several opportunities granted to her, resulting
in closing of her right to lead evidence. Respondent No. 5 was in possession
of the property No. C-1/35 Janak Puri, New Delhi, as also mentioned in the
Will. The disputes relating to her possessory rights were decided in favour
of the Petitioner and against Respondent No. 5 in RSA No. 190/2011. This
Court, in its judgment dated 22nd January 2014, decided the aforesaid appeal
and held that Respondent No. 5 has no right in the aforenoted property as it
is not a shared household. It was accordingly decided and held that the
Petitioner (Appellant in RSA No. 190/2011) will be entitled to possession of
the kitchen and bathroom situated on the ground floor of the aforenoted
property. He further submitted that since 2017, the entire property is in the
possession of the Petitioner.
11. Per contra, Respondent No. 5 argued that the Will is collusive and she
was never in illegal possession of the property. During the cross
examination conducted on 17th October 2017, Petitioner was unable to give
details of the movable properties of the Testator. He was also unable to give
TEST.CAS. 40/2012 Page 5 of 19
the status of the bank account, pension account and NSC’s and FDR’s
mentioned in para 7 of the petition. Respondent No. 5 further argued that
there is a possibility that there are multiple Wills executed by the Testator.
In support of this contention, she emphasized that when the Petitioner was
questioned as to who has the custody of the original Will, he responded that
the Will was in his custody. This response, according to the Objector,
indicates that there is perhaps another Will which has not been shown to the
Court, since the original Will- the subject matter of the present petition is
already on record. It was further argued that the Petitioner evaded the
question during cross examination and his answers were vague and not
specific to the questions put to him. Lastly, it was argued that the Petitioner
was not entitled to the Probate as he is not the named Executor in the Will.
Findings and Analysis
12. The Will [Ex. PW 1/3] has two attesting witnesses. The said attesting
witnesses filed their affidavits at the time of filing the present petition,
verifying the execution of the will. The said witnesses also deposed by filing
affidavits during examination-in-chief, wherein both the attesting witnesses
have deposed that on 29th October 2004 they were present at the time of
signing of the Will. Rakesh Sharma (PW-2), by way of examination in
chief deposed that:-
“1. I say that I am one of the witnesses to the last Will and
Testament of late Sh. Kali Prasad Dabral, the Testator/deceased,
dated 29.10.2004 and in that capacity Iam competent to depose
this affidavit.
TEST.CAS. 40/2012 Page 6 of 19
2. I say that I was present on 29.10.2004 and I saw and heardthe
contents of this Will being read over and explained to Sh.Kali
Prasad Dabral. I say that having heard and understoodthe
contents of the Will, he out of his own free Will andvolition
acknowledged beforeus that the Will had beencorrectly drafted as
per his instructions and correctlyrecorded his last desires. I say
that in my presence, thetestator signed and executed the Will. I
further say that theTestator requested the deponent to sign the
same as attestingwitness. I say that having personally seen him
sign andexecute the Will, as also having received a
personalacknowledgement from him of him having executed
hiswillI,at his request, affixed my signatures thereupon on the
Will dated 29.10.2004 as attesting witness. ”
13. PW- 3, Sh. S.K. Dabral (PW-3), by way of examination in chief deposed
as under:
“1. I say that I am one of the witnesses to the last Will and
Testament of late Sh. Kali Prasad Dabral, the
Testator/deceased, dated 29.10.2004 and in that capacity I am
competent to depose this affidavit.
2. I say that I was present on 29.10.2004 and I saw and heard
contents of this Will being read over and explained to Sh. Kali
Prasad Dabral. I say that having heard and understood contents
of the Will, he out of his own free Will and volition
acknowledged before us that the Will had been correctly drafted
as per his instructions and correctly recorded his last desires. I
say that in my presence, the testator signed and executed the
Will. I further say that the Testator requested the deponent to
sign the same as attesting witness. I say that having personally
seen him sign and execute the Will, as also having received a
personal acknowledgement from him of him having executed
his Will, I, at his request, affixed my signatures thereupon on
the Will dated 29.10.2004 as attesting witness.”
TEST.CAS. 40/2012 Page 7 of 19
14. Both the witnesses have not been cross-examined and their testimonies
therefore are uncontroverted by any of the Respondents. Petitioner’s cross
examination also does not contradict their statement. Respondent No. 5, who
argued in person, has highlighted the response of Petitioner to a particular
question to emphasize the theory of existence of multiple wills, the relevant
question and it’s reply reads as under:-
“Q. Who has the original will currently?
Ans. The original Will is in my custody.”
15. Relying on the above-noted response, it is argued that since the original
Will dated 29th October 2004 is on record of this Court, the statement of the
witness is contrary to the factual position, thereby implying that the Will
submitted in the Court is not the genuine Will of the Testator and there are
multiple Wills. This contention is without merit, as the aforesaid response
of the witness cannot be considered in isolation so as to discredit the
genuineness of the Will. Mr. Prem Prakash Dabral- Petitioner produced the
original Will before this court. Thus the Will was in his custody. On the
date of cross-examination, 2nd February 2018, no doubt the original Will was
on the record of this Court and his response is erroneous, however this
solitary inaccuracy in his statement should not be given undue weight to
doubt the genuineness of Will before this Court.
TEST.CAS. 40/2012 Page 8 of 19
16. The other contention of Respondent No.5 to discredit the testimony of
the Petitioner is based on the observations made by the Court on 26th
November 2013, regarding endorsement on the index of a copy of reply
supplied to her. The said order reads as under:
“Objections have been preferred by the objector Smt. Shikha
Dabral, to which the petitioner has already filed a reply on
record. Though as per the endorsement on the index it appears
that the copy stands supplied to the objector, the objector
present in person states that she has not received any copy. The
signature of acknowledgement do not appears to be that of the
objector. Let a complete copy of the reply be served on the
objector, within one week, who may file rejoinder within six
weeks thereafter.”
17. The above noted plea is without substance. The aforenoted observations
of the Court are being read out of context. There is no evidence lead by
Respondent No.5 on this issue. The observation of the court cannot be read
and construed to mean that the Petitioner is in the habit of indulging in
forgery, as is being alleged by Respondent No.5. She has also questioned the
genuineness of the Will by relying upon the cross examination of the
Petitioner. Her contention is that Petitioner’s response on certain questions
was not specific, especially when he was questioned regarding the place
where the Will of the Testator was found. She also argued that the original
Will was brought on record belatedly, giving rise to suspicion. Although,
there may have been a delay on the part of the Petitioner to file the original
Will, however, the fact remains that the original Will was on record at the
time of recording the statement of the witnesses to prove the Will and thus
the objection is without merit. The Objector has also contended that the Will
TEST.CAS. 40/2012 Page 9 of 19
is collusive, on the ground that the Will was executed by the Testator under
influence and does not express true intention of the Testator. In support of
this contention, the Objector has relied upon the statement of the Testator
recorded in House Case No. 5/95 filed by the Testator for recovery of
possession and damages of the property against Objector No. 5 and her
daughter. The trial Court therein, had granted the possession to Respondent
No. 5, inter alia on the ground that the disowning of Sh. Jaya Prakash
(Respondent No. 2) was only a ploy and did not have any legal effect. It is
argued that the declaration made by the Testator in his Will regarding
disownment of Respondent No. 2, does not reflect his true intention. In
support of this contention, Objector has also relied upon the judgment in the
case of SectionS.P. Thiruvanukkarasu v. S.P. Loganathan and Anr, AIR 119
MAD 328. Further, Respondent No. 5 has also referred to a petition being
CM. (M) No. 268/2000, filed before this Court, wherein directions were
sought to dispose of the pending cases between the parties. It is contended
that in the said petition, Respondent No. 2 (husband of Respondent No.5)
had also sought directions in respect of the case No. 5/95 (supra) which was
filed by the Testator. According to her, this confirms the collusion between
the Testator and Respondent No. 2. Reference has also been made to other
proceedings being the Petition under Section 25 of the Guardians and Ward
Act, 1890 for the custody of minor child, Trisha. It is also contended that
the immovable property C-1/35 JanakPuri, New Delhi, was the matrimonial
house of Respondent No. 5 and the parental home of daughter Trisha. Kali
Prasad Dabral (Testator), therein, has admitted that there was a joint family
and that there were matrimonial disputes between her and Respondent No. 2
and therefore the Will was created in collusion to deprive her and her
TEST.CAS. 40/2012 Page 10 of 19
daughter of their basic rights. The objections of Respondent No. 5 revolves
around the plea that the Will was created to deprive her of the possessory
rights in the property. The property in question belongs to the Testator.
There is no dispute on this issue. In the case of intestate succession,
Respondent No. 5 not being Class-I legal heir of the deceased, would not
have any right in the said property by way of succession. The Will in
question excludes Respondent Nos. 2 to 4 and bequeaths the property in
favour of the Petitioner. The said Respondents, who had interest in the
estate of the deceased have no objection to such exclusion and do not oppose
the petition. This exclusion in para 7 of the will reads as under:-
“Whereas by virtue of this Will I, in absolute healthy and sound
state of mind hereby bequeath my entire above mentioned
property in favour of my younger son namely Shri Prem
Prakash Dabral to the exclusion of my all other legal heirs and
after my death only my younger son i.e. Shri Prem Prakash
Dabral shall be the exclusive, owner of the said property i.e.
property, bearing municipal no. C-1/35, Janakpuri, New Delhi-
110058 including entire rights in the plot underneath and all
fittings and fixtures installed therein.No other family member
shall have any right, title or interest of any nature whatsoever in
my above mentioned property.”
18. The Testator also took note of the fact that Respondent No. 5 and her
daughter Ms. Trisha were occupying a portion of the property in question.
This fact is noted in para 8 of the Will and the Testator expressed his desire
that his younger son, namely, Sh. Prem Prakash Dabral- Petitoner shall be
the only competent person to continue the said litigation. The said
declaration in the Will reads as under:-
TEST.CAS. 40/2012 Page 11 of 19
“Whereas it is clarified that presently a portion of this above
mentioned immovable property i.e. one bedroom with attached
bath and kitchen on ground floor is under illegal occupation of
one Smt. Shikha who is: the wife of my elder son namely Shri
Jaya Prakash and along with the said Smt. Shikha her daughter
namely Ms. Trisha is also living. Apart from this, I have also
rented out a portion of the ground floor comprising of two
rooms and attached bathroom and kitchen to one Shri Deepesh
Sood at a monthly rent of Rs.3,500/- and I am presently
receiving, the rent from the said tenant being landlord/owner
Apart from this portion the remaining entire building/property
is under my possession and control. Litigation’ with regard to
the illegal possession of Smt. Shikha and her daughter Ms.
Trisha is already pending in the civil court being initiated by me
vide civil suit no.5 of 1995. (New suit no. 1285 of 2000) titled
as Shri Kali Prasad Dabral V/s Mrs. Shikha Dabral Anr.
After my death my younger son namely Shri Prem Prakash
Dabral only shall be the only competent person to continue the
said litigation representing me and he alone shall be the person
to enjoy the outcome of this litigation or any other future
litigation as may be required to be taken up in this regard.”
19. Therefore, it is clear from the wording of the Will that the Testator was
aware of the marital discord between his son Jaya Prakash Dabral and his
wife (Smt. Shikha-Respondent No. 5). Conscious of this fact, he wished
that his younger son, namely, Sh. Prem Prakash Dabral would be the sole
beneficiary of the property in question. The wish expressed by the Testator
and the reasons given for excluding Respondent No. 2 to 4 from the benefits
of the Will, appear to be genuine. Having regard to the fact that Respondent
No. 5 was in occupation of a portion of the property, it is also to be noted
that there was also a litigation pending in respect of the same. The suit being
Sh. Kali Prasad Dabral vs. Shikha Dabral Anr., Civil Suit No. 5/95
TEST.CAS. 40/2012 Page 12 of 19
(New Suit No. 1285/2000) for recovery of possession from Respondent No.
5. In this background, if the Testator disowned his elder son, it cannot be
said that the Will in question is a collusive one. A Will is a document,
which would come in the operation only after the death of the Testator and
on the date of signing and executing, it would have no legal effect. The
Testator perhaps was disillusioned and aggrieved by the fact that he is
unable to remove Respondent No. 5 from the property in question. He
desired that his son Jaya Prakash Dabral be excluded from the Will and in
order to ensure that in the event of his death there is no claim raised by
Respondent No. 5 in respect of his property, he made a declaration
disowning his son as mentioned in para 6 of the Will, which reads as under:-
“Whereas my both daughters are happily married and well
settled in their life and have already spentconsiderable amount,
as per mycapacity in their marriage and therefore I do not wish
to give anyfurther property/money tothem. Further Ihave, also
already disowned my elder son namely Shri Jaya Prakash on 4th
December, 1993 as hedid not perform his duties as a son and
was also acting beyond my control and therefore I was very
much annoyed with him therebyIhave severed all my relations
with him and thus disowning him from my movable and
immovable properties. Presently I am living with my younger
son namely Shri Prem Prakash Dabral at H.No.A-3/201,
FirstFloor, JanakPuri, New Delhi and he is looking after all my
needs and is serving me with all dedications and therefore I
have special love and affection for him.”
20. The aforesaid declaration in the Will, therefore, cannot be said to be
collusive. Even otherwise the aforesaid declaration would not have any legal
TEST.CAS. 40/2012 Page 13 of 19
consequence, as the will could not have been relied upon during the lifetime
of the Testator. The legal effect of disowning Respondent No. 2 also has no
effect in law. The declaration in the Will was by way of abundant caution so
that Respondent No. 2 or 5 may not raise any claim in respect of the said
property. Thus, the objection of Respondent No. 5 regarding collusion has
no merit. In light of the above discussion, it is held that Petitioner has
proved the document dated 29th October 2004 (PW1/3) to be the last Will of
the deceased late Sh. Kali Prasad Dabral.
21. The other objections raised by the Objector are legal ones. It is
contended that since the Petitioner is not the named Executor of the Will, he
is not entitled to probate in view of Section of 222 of SectionIndian Succession Act
1925 (hereinafter ‘the act’). It is contended that the petition does not contain
the necessary ingredients as provided in Section 276 of the act. It is also
argued that the Petitioner during his cross examination was not able to
disclose the details of the movable properties or give status of bank account,
pension account etc.
22. As far as the objection regarding the petition being bereft of the
necessary ingredients is concerned, the same is without merit. Section 276 of
the Indian Succession Act, 1925 reads as under:
“276. Petition for probate.-(1) Application for probate or for
letters of administration, with the will annexed, shall be madeTEST.CAS. 40/2012 Page 14 of 19
by a petition distinctly written in English or in the language in
ordinary use in proceedings before the Court in which the
application is made, with the will or, in the cases mentioned in
sections 237, 238 and 239, a copy, draft, or statement of the
contents thereof, annexed, and stating–
(a) the time of the testator’s death.
(b) that the writing annexed is his last will and testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to come to the
petitioner’s hands, and
(e) when the application is for probate, that the petitioner is the
executor named in the will.
(2) In addition to these particulars, the petition shall further
state,–
(a) when the application is to the District Judge, that the
deceased at the time of his death had a fixed place of abode, or
had some property, situate within the jurisdiction of the Judge;
and
(b) when the application is to a District Delegate, that the
deceased at the time of his death had a fixed place of abode
within the jurisdiction of such Delegate.
(3) Where the application is to the District Judge and any
portion of the assets likely to come to the petitioner’s hands is
situate in another State, the petition shall further state the
amount of such assets in each State and the District Judges
within whose jurisdiction such assets are situate.”
23. The Petitioner has annexed the death certificate with the Will which is
Ex. PW-1/2 and the same gives the details of date and time of death of the
Testator. The amount of assets that are likely to come to the Petitioner are
TEST.CAS. 40/2012 Page 15 of 19
also mentioned in para 12 of the petition giving the details of the estate to be
One Crore and Sixty Five lakh. The Will bequeaths both immovable
property and the amounts lying in the bank account, pension account, FDR’s
to the Petitioner, to the exclusion of the other legal heirs. The fact that the
Petitioner has not given specific details of the movable assets does not
reflect upon the authenticity or genuineness of the will and the petition
cannot be dismissed on this ground. Now, coming to the objection of grant
of probate in absence of a named executor. To deal with the said objection it
is useful to first refer to Section 222 and Section 232 of the Act, which reads
as under:
“222. Probate only to appointed executor.-(1) Probate shall
begranted only to an executor appointed by the will.
(2) The appointment may be expressed or by necessary
implication.”
“232. Grant of letter of administration to universal or residuary
legatees
–When–
(a) The deceased has made a will, but has not appointed an
executor, or
(b) The deceased has appointed an executor who is legally
incapable or refuses to act, or who has died before the testator or
before he has proved the will, or
(c) The executor died after having proved the will, but before he
has administered all the estate of the deceased, a universal or a
residuary legatee may be admitted to prove the will, and letters of
administration with the will annexed may be granted to him ofTEST.CAS. 40/2012 Page 16 of 19
the whole estate, or of so much thereof as may be
unadministered.”
24. A perusal of the said provision indicates that probate of will can be
granted to an executor appointed by the will and a Testator may appoint an
executor either expressly or by necessary implications. The aforesaid Will
more particularly, para 7 of the will read in juxtaposition with the other
provisions of the will indicates that the properties of the Testator have been
bequeathed to the Petitioner in interest as well as in possession immediately
upon the death of the testator as an absolute owner. However, the Petitioner
was not appointed either expressly or by necessary implication, to
administer the testator’s property and to carry into effect the provisions of
the will. Thus on a fair, proper and comprehensive reading of the material
provisions of the will, it emerges that the Petitioner was not appointed as the
executor of the Will; rather he was appointed as the sole/Universal legatee
under the Will. However, on a combined reading of Sections 222 and Section232 of
the Act, what flows is that in cases where an executor has not been
appointed either expressly or by necessary implications, the procedure to be
adopted in such cases would be to grant letters of administration with the
will annexed, in favour of the Universal legatee or a residuary legatee, if
they are able to prove the will.
25. As already noted the Petitioner has been able to prove the said Will to be
the last and final Testament of Sh. Kali Prasad Dabral. The Testator has not
appointed any executor for the will either expressly or by necessary
TEST.CAS. 40/2012 Page 17 of 19
implications however, Petitioner has been appointed as the Universal
legatee, in respect of the whole of the property left by him at the time of his
demise. Therefore, considering the fact that substantial time has lapsed since
the time the case was filed and no such objection was taken earlier and the
Petitioner has been found to be a universal legatee who has duly proved the
will to be be the last and final testament of the deceased, Respondent No.5’s
objection regarding there being no named executor to seek dismissal of the
petition at this stage, does not hold its ground.
26. This court, in light of the decisions of the Supreme Court in SectionFGP Ltd.
vs. Saleh Hooseini Doctor,(2009) 10 SCC 223 and Shambhu Prasad
Agarwal v. Bhola Ram Agarwal (2000) 9 SCC 714 and various High
Courts in Shirin BamanFarazarzi of Bombay Zoroastrian Iranian
inhabitant v. Zubin BomanFaramarzi, reported in 2014 (4) MHLj 217,
SectionInder Chand Nayyar v. Sarvadeshik Arya PratinidhiSabha, reported in
AIR 1997 Del 34, SectionSanjay Suri v. State Ors, reported in AIR 2004 Del 9
and Lallubhai Chhotabhaiu by SectionLRs v. Vithalbhai Parshottambhai,
reported in AIR 1982 Guj 222, is of the view that Petition seeking grant of
Probate of a will can be allowed to be converted into a petition for Letters of
Administration with Will annexed. Thus, there is no conceivable reason as
to why the beneficiary/Petitioner herein must be prohibited from continuing
the said proceedings. Directing the Petitioner to seek a formal conversion of
the proceedings from one for grant of probate to one for issuance of letters
of administration would be futile, since, it is not in dispute that Petitioner is
entitled to file a petition for issuance of Letter of Administration with the
TEST.CAS. 40/2012 Page 18 of 19
will annexed. Since the Petitioner has been deprived of the benefits
enshrined in the will for a considerable time, it is in interest of justice that
the Petition should not be dismissed merely on this highly technical ground
and should come to an end as early as possible.
27. In view of the aforementioned facts and evidence, the Letters of
Administration with the Will annexed is issued favour of the Petitioner
enabling him to administer the estate of Late Shri Kali Prasad Dabral,
subject to the Petitioner filing the requisite Court fee in terms of the
valuation reports and submitting an administrative bond with one surety and
on depositing the appropriate court feed in accordance with law.
28. The Petition is allowed in the above terms. No order as to cost.
SANJEEV NARULA, J.
th
15 May, 2019
ss
TEST.CAS. 40/2012 Page 19 of 19
