Ms. Annapurna Dixit vs State and Others

S. Ravindra Bhat, J.

I.A. 14648/2008

The applicant seeks substitution of the legal representatives of late Shri Rahul Dixit, the fourth respondent, who died during the course of these probate proceedings. Rahul Dixit was the testator''s son; he is survived by his wife, Ms. Rupa Dixit, son Sumiran Dixit and daughter, Sangiri Dixit.

The court has considered the averments in the application, which is supported by affidavit of the petitioner, the mother of the late Rahul Dixit, and wife of the testator. None of the proposed legal representatives object to the application. Interests of justice require that it should be allowed. Accordingly, I.A. 14648/08 is allowed.

Test Case No. 32/2008

This is a petition seeking grant of probate under the Indian Succession Act, 1925 concerning the Will of Shri. J.N. Dixit (hereafter "the testator"), who died in Delhi, on 3rd January November, 2005.

It is averred that the testator died in Delhi, where he had lived and for long. He resided in Gurgaon, and died on 3.1.2005. He was married to the petitioner, his widow who survived him. He left behind two sons, Ashok Dixit and Rahul Dixit, and two daughters, i.e. Ms. Abha Dixit Dhavie and Ms. Deepa Dixit.

According to a Will dated 3rd May, 1999, the testator bequeathed his immovable and movable properties to his widow, the petitioner. At that time, these included a flat at Gangotri Enclave, Alaknanda Colony, New Delhi and properties at DLF Enclave and Nainital District.

It is averred that the testator was the absolute owner of all the properties which are subject matter of the registered will and for which bequests are made, and that he executed the will on when he was of sound disposing mind. The will was executed in the presence of two witnesses, namely, Mr. Jitendra Sharma, Senior Advocate Supreme Court, and Mr. Ravi Dara. The petitioner and the said Mr. Sharma were named as Executors in the will.

Notice of the petition was issued to all the legal heirs of testator. None of them objected to the grant of the probate. Notice to the public at large was also given in regard to the present petition by ordering publication in newspaper "Hindustan Times" Delhi edition, on 17th July, 2008. It did not, however evoke any response. Initially, probate proceedings were filed before the Additional District Judge; even the evidence of the attesting witness was recorded by the court. At a later stage, it was noticed that the petitioner had valued the properties, which were subject matter of the Will in excess of Rs. 1.48 crores; this necessitated the transfer of proceedings to the file of this Court. However, the depositions of the attesting witness and the petitioner, were recorded in the course of those judicial proceedings. It is submitted by petitioner''s counsel that such depositions are relevant and admissible, in terms of Section 33 of the Evidence Act.

In order to prove the Will, the petitioner examined one of the attesting witnesses, Mr. Jitendra Sharma, who filed his affidavit in support of the petition, on 27-1-2006, and proved the affidavit as Ex PW-2/, in his statement on 9-8-2007. She identified the original will, exhibited as Exh. PW-1/2 and stated that the testator had executed the will, at the point identified as ''A'' to ''E'' in his presence and in the presence of the other attesting witness, i.e. Ms. Ravi Dara. He also identified the signatures of the said attesting witness, who signed in his presence and further identified his signature on the will. According to this attesting witness, the testator was in good state of health and mind, when he signed the will.

The petitioner, besides examining the attesting witness herself deposed in the proceeding, as PW-1, through affidavit. According to her testimony, the testator, late executed the Will; he died on 5.1.2005. She exhibited the death certificate of the testator as Exh.PW-1/A; she also produced the Will as Ex. PW 1/B. She further deposed about the details of the existing properties of the testator at the time of his death, which included two flats at Gurgaon, and amounts lying in the Savings bank account and two fixed deposits.

The revenue authorities forwarded the valuation report of one of the properties at DLF City; however, due to inadvertence, instead of the other property at DLF, the valuation report forwarded to this Court, was in respect of a Sushant Lok, Gurgaon property, which is not the subject matter of the bequest, but was apparently the residence of the late Rahul Dixit, son of the testator.

From the above discussion it is apparent that the Will made by late J.N. Dixit whereby he bequeathed his properties, to the petitioner, has been duly proved through the testimony of PW-1 and PW-2. The other relations of deceased have not expressed opposition to the grant of probate, to the petitioner, appointed by the testator as the Executor of the Will. The statements of the attesting witness and the petitioner, though recorded by the Additional District Judge, are relevant, and can be considered as part of the proceedings, by virtue of Section 33, of the Evidence Act, which is in the following terms:

Relevancy of Certain Evidence For Proving, In Subsequent Proceeding, The Truth of Facts Therein Stated.

Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

Provided-

that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding...

In view of the above, this Court accepts the Will Ex. PW 1/2 executed by late Shri J.N. Dixit, and grants probate of the same to the petitioner in respect of the properties, described in the will, of which particulars are set out fully in the petition, which are bequeathed subject to her furnishing administration bond and surety bond, and also subject to receipt of the valuation report in respect of the second property at DLF, Gurgaon. In case of insufficiency in court fees, as a consequence of the valuation report, the petitioner shall make good the differential amount. List before the Joint Registrar on 3rd September, 2009, to ensure that steps for valuation of the property are appropriately taken.

The petition is allowed in the above terms.