Judgment:
* IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO No.365/2012 15th April, 2014 % RAHUL TYAGI AND ANR. Through: ......Appellants Mr. Kapil Dua, Advocate VERSUS STATE ...... Respondent Through: CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?. VALMIKI J.
MEHTA, J (ORAL) 1. This first appeal under Section 299 of the Indian Succession Act, 1925 is filed against the judgment of the probate court below dated 1.6.2012 by which the petition filed by the appellants herein for letters of administration in respect of the properties of their mother was dismissed. The subject properties are bearing nos.E-287, (Ground Floor & Basement), East of Kailash, New Delhi and 10-C, 2nd Floor, B-Block, SFS Flats, East of Kailash, New Delhi.
2. Appellants/petitioners states that Smt. Bela Tyagi, their mother, died on 9.12.2009 leaving behind two petitioners/appellants who are her son and daughter. It was further the case of the appellants/petitioners that besides the two of them, there were no other legal heirs of the deceased Smt. Bela Tyagi alive on the date of death of Smt. Bela Tyagi. The appellants/petitioners had a sister Ms. Leena Tyagi who had pre-deceased Smt. Bela Tyagi and who had expired on 23.5.2005. Ms. Leena Tyagi was unmarried when she died, and therefore, left no legal heir besides the appellants/petitioners.
3. The court below dismissed the probate petition seeking letters of administration on the ground that the properties with respect to which letters of administration were sought originally belonged to the daughter Ms. Leena Tyagi and who had bequeathed the properties in favour of mother Smt. Bela Tyagi by a Will dated 30.4.2005, but, that Will dated 30.4.2005 of Ms. Leena Tyagi was not proved by the appellants/petitioners in accordance with law. The probate court below accordingly held that since the Will dated 30.4.2005 of Ms. Leena Tyagi was not proved, hence the mother Smt. Bela Tyagi could not be said to be the owner of the properties, and hence appellants/petitioners were not entitled to the letter of administration. 4(i) In my opinion, the probate court has really gone on and off tangent for dismissing the petition seeking letters of administration. Firstly, the properties already stood in the name of the mother Smt. Bela Tyagi and consequently the Will of Ms. Leena Tyagi dated 30.4.2005 had already been acted upon and as a result the mother Smt. Bela Tyagi would be the undoubted owner of the suit properties, and consequently the petition seeking letters of administration could not be dismissed on the ground that the mother Smt. Bela Tyagi was not the owner of the properties. (ii) Further, it is also relevant to note that a probate court does not go into the title of the properties, and therefore, the probate court below has again committed an error in refusing to grant letters of administration on the ground that mother Smt. Bela Tyagi was not the owner of the properties. (iii) Finally and most importantly it is to be noted that both the petitioners are only the legal heirs of the pre-deceased daughter Ms. Leena Tyagi and even if we take that Ms. Leena Tyagi was the owner of the properties, the petitioners being the brother and sister of Ms. Leena Tyagi, would be the only surviving legal heirs of Ms. Leena Tyagi and hence were in any case entitled to the probate petition.
5. In view of the above, impugned judgment of the probate court below is therefore set aside. Appellants/petitioners will be granted letters of administration subject to compliance of the usual formalities before the probate court below. Parties are left to bear their own costs. APRIL15 2014 godara FAO3652012