Rajiv Sahai Endlaw, J
1. The petitioner, in pursuance to the order dated 9th May, 2019 has filed IA No.11667/2019 for amendment of the petition to confine the same to a
petition for grant of Letters of Administration by pleading the named executor to have renounced his status as such. It is stated that else no change
has been made in the amended petition.
2. I have enquired from the counsel for the contesting respondent No.4, whether the reply already filed by the contesting respondent No.4 to the
petition would serve the purpose.
3. The counsel for the contesting respondent No.4 states that this entire litigation is unnecessary and there is no estate of the deceased qua which any
Letters of Administration is required.
4. Attention is drawn to Schedule B to the petition filed by the petitioner at page 3 of Part IIIA file, being a list of estate of the deceased and it is
pointed out that the said estate is described as part of property No.W-155, Greater Kailash Part-I, New Delhi and monies in saving accounts,
jewellery, holdings in Government Securities and Bonds and monies in Post Office account. It is stated that the deceased, during her lifetime, vide
three registered Gift Deeds gifted the entire property No.W-155, Greater Kailash Part-I, New Delhi and to the knowledge of the objector/respondent
No.4, there are no bank accounts, jewellery etc. as described.
5. I have enquired from the counsel for the objector/respondent No.4, whether the objector/respondent No.4 is willing to make a statement that she
has no objection to the petitioner appropriating to himself, even without proving any Will, the monies, if any in the bank accounts and the jewellery etc.
as described in Schedule B, under the list of moveable properties of the deceased.
6. The counsel for the objector/respondent No.4 under instructions from the objector/respondent No.4 stated to be present in person states that the
objector/respondent No.4 does not claim any share in the moveable properties described in Schedule B and Letters of Administration with respect
thereto can be granted to the petitioner on concession of the objector/respondent No.4 Jyotika Sawhney.
7. A perusal of the three Gift Deeds executed with respect to the property shows that no part of the property could be subject matter of the Will as
the entire property has been gifted.
8. However the counsel for the petitioner, on enquiry states that the open terrace above the second floor is not the subject matter of any Gift Deed
and remained the property of the testatrix Ms. Maya Kumar and under the Will has been bequeathed exclusively to the petitioner. It is further stated
that though earlier, construction on the said open terrace was not permissible but is possible now and the same is thus valuable property.
9. A perusal of the first Gift Deed dated 25th October, 1976 at page 10 of Part III-B file shows, (i) the same to have been executed by the testatrix
Ms. Maya Kumar and her husband, who were the then joint owners of the property, in favour of the objector/respondent No.4; (ii) the same to be
with respect to “ partially built first floor of the said building, with full rights as the owner thereof, including the necessary rights in the said plot of
land fully described in Schedule II, annexed hereto†and at another place described as “all that portion of the house on the first floor (both built
and unbuilt) measuring 224 sq. yds. (be the same a little more or less) alongwith the necessary rights in the said land underneath and all privileges,
profits, advantages and all other appurtenances whatsoever to the said tenements, lands hereditaments or premises fully described in Schedule II
hereto†and described in Schedule II as “partly constructed portion of the house on the first floor of plot No.W-155 and the open space
respectively marked red and yellow in the plan attached marked A-II with all the necessary rights in the said plot of landâ€.
10. A perusal of the second Gift Deed dated 1st November, 1995 at page 106 of Part III-B file shows, (i) the same to be executed by the testatrix
Ms. Maya Kumar in favour of the objector/respondent No.4 Jyotika Sawhney; (ii) the same in recitals thereto recording that the testatrix and her
husband who were then the joint owners of the property having gifted “the first floor and above with proportionate rights in the land
underneath....†under an earlier gift deed to the objector/respondent No.4; (iii) the same to be also recording in the recitals thereto that the testatrix
under the Will of her husband who had since died had become the sole owner of the remaining portions of the property; (iv) the same being with
respect to the portion of the ground floor “built up 201 sq. feet land area with garage block structure comprising of garage on ground floor servant
quarters on first floor and second floor with full rights to construct/reconstruct the same upto the highest level as per the FARâ€; (v) the same in
Schedule 3 thereof describing the portion gifted to the objector/respondent No.4 under the earlier Gift Deed as “property at first floor and second
floor with proportionate rights in land underneath and with complete roof rightsâ€.
11. The third Gift Deed has been executed by the testatrix in favour of the petitioner and has been filed by the petitioner at page 121 of Part III-A file.
12. The petitioner obviously does not claim that under the Gift Deed in his favour, the terrace above the second floor was gifted to him and is claiming
right to the same under the Will of the testatrix.
13. Even though from a reading of the aforesaid documents, it appears that the roof above the second floor has been gifted to the objector/respondent
No.4 under the two Gift Deeds in her favour but this being a Testamentary Case, I refrain from giving a final verdict in this regard.
14. I have however enquired from the counsel for the petitioner, who throughout the hearing has been contending that his client is very old and thus
the proceedings should be decided expeditiously, whether not the petitioner, in pursuing this proceeding, is wasting his time inasmuch as even if the
petitioner succeeds in proving the document claimed to be the Will of the testatrix as the Will of the testatrix, the little dispute between the parties
would be, whether the testatrix in view of the two Gift Deeds executed in favour of the objector/respondent No.4 was the owner of the terrace above
the second floor, to be able to bequeath the same under the Will. It has been observed in the Court, that the petitioner, rather take up the real fight
instead of this litigation, which will serve no purpose.
15. However, the counsel for the petitioner insists that this proceeding only is to be proceeded with.
16. Making the petitioner liable for exemplary costs to the objector/respondent No.4 of these proceedings, the proceedings is proceeded with further.
17. In view of above, the need to call for response to the amended petition filed is not required and IA No.11667/2019 is disposed of by making it clear
that the petition will be treated as a petition for grant of Letters of Administration on the basis of document claimed to be the Will of the testatrix.
18. On the pleadings of the parties, the following issues are framed:
(I) Whether the document dated 5th September, 2002 and 31st August, 2006 are the validly executed last Will and Codicil respectively of the testatrix?
OPP
(II) Whether the testatrix was in a sound mind at the time of making of the alleged Will and Codicil? OPP
(III) Relief.
19. The counsel for the objector/respondent No.4 seeks framing of an issue qua the title of the testatrix to the open terrace above the second floor and
on enquiry as to how the question of title of the testatrix can be subject matter of a Testamentary proceeding, relies on paragraph 10 of Surender
Patrick Lall Vs. State 118 (2005) DLT 647.
20. However the said judgment, in holding so, does not cite any precedent. Else, it has been consistently held in (i) Chiranjilal Shrilal Goenka Vs. Jasjit
Singh (1993) 2 SCC 507; (ii) Delhi Development Authority Vs. Vijaya C. Gurshaney (2003) 7 SCC 30;1 (iii) Krishna Kumar Birla Vs. Rajendra Singh
Lodha (2008) 4 SCC 300; (iv) Rakesh Kumar Juneja Vs. State of Delhi 2017 SCC OnLine Del 12484; (v) Sarla Gupta Vs. The State 2017 SCC
OnLine Del 12689; and, (vi) Jatinder Singh Bhatia Vs. State AIR 2018 Del 19 7that the title of the testator cannot be gone into in a Testamentary
jurisdiction in which no declaration of title can be made. Thus, I refuse to frame the issue to the said effect.
21. No other issue arises or is pressed.
22. The parties to file list of witnesses within fifteen days.
23. The petitioner to file affidavits by way of examination-in-chief of all his witnesses within six weeks.
24. If more than one attesting witnesses to the document claimed to be the Will is sought to be examined, affidavits by way of examination-in-chief of
all to be filed together and all to be tendered together for cross-examination.
25. Option given of having evidence recorded on commission has been declined.
26. List before the Joint Registrar for scheduling the date/s of trial.
27. The counsel for the petitioner now, under instructions of the petitioner seeks recording of evidence on commission.
28. Commission is issued to Ms. R. Kiran Nath, District & Sessions Judge (Retd.) (Mob.9910384659) to record evidence in this proceeding. She is
requested to record the evidence within the Court Complex and to complete the same within six months of the date of first appearance of the parties
before her. She is granted liberty to have the matter placed before the Court, if any of the parties are found delaying recording of the evidence.
29. The counsels to, in consultation with the Commissioner, commence recording of evidence within eight weeks from today.
30. The fee of the Commissioner is fixed at Rs.1 lakh to be paid by the petitioner, besides out of pocket expenses.
31. The Registry is directed to send the file of the suit at the place and time fixed by the Commissioner for recording of evidence.
32. List before the Court after the recording of evidence is completed.