[HumJanenge] IN THE HIGH COURT OF DELHI AT NEW DELHI

IN THE HIGH COURT OF DELHI AT NEW DELHI

TESTAMENTARY CASE NO. 32/ 2008

Pronounced on : July 14th , 2009

Ms. ANNAPURNA DIXIT PETITIONER Through : Mr. Sumeet Bansal & Mr. Ateev
Mathur, Advocates Vs.

STATE AND ORS. DEFENDANTS Through : Nemo

CORAM

Mr. Justice S. Ravindra Bhat

1. Whether reporters of local papers may be

allowed to see the judgment.? YES

2. To be referred to the Reporter or not? YES

3. Whether the judgment should be reported

in the Digest? YES Honble Mr. Justice S. Ravindra Bhat (Open Court)

IA. 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 testators 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, IA 14648/08 is
allowed.

TEST CASE NO. 32/ 2008

1. 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.

2. 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.

3. 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.

4. 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.

4. 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 petitioners counsel that such
depositions are relevant and admissible, in terms of Section 33 of the
Evidence Act.

5. 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, Test. Case 32/2008 Page 3 when he signed the will.

6. 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.

7. 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.

8. 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:

"33. 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 "

9. 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.

10. The petition is allowed in the above terms.

14th July, 2009 S. RAVINDRA BHAT, J