Judgment:
Sarojnei Saksena, J.
1. Petitioner-Saroj Prabha Sharma has filed this petition Under Sections 276 and 278 of the Indian Succession Act, 1925 (in short the 'Act') for grant of Letters of Administration/Probate of Will dated 2.12.1973.
2. In the petition she averred that the testator, Pt. Hari Lal Sally, resided in Sector 5, Chandigarh within the jurisdiction of this Court. He was a Hindu. He died on 27.2.1974. He executed a Will on 2.12.1973 in favour of the petitioner. At that time Pt. Hari Lal Sally was in sound disposing mind. The petitioner being the daughter of testator is a beneficiary under the Will. Respondents 3 and 4 are the sons of the petitioner and are also beneficiaries under the Will. Respondent No. 2 is the son of the testator and he is also a beneficiary under this Will.
3. In the petition, the petitioner has also averred that the testator was married to Shakuntla Sally, who died on 22.1.1996. Petitioner is the only issue of her parents. Tarun Kumar Sally-respondent No. 2 is Shakuntala's nephew, who was brought up by the testator and Shakuntala Sally out of love and affection. Shakuntala Sally told the petitioner about this Will dated 2.12.1973 executed by her husband. Shakuntala Sally also acted on this Will and paid Rs. 26,859/- as Estate Duty as per assessment and demand made by the Assistant Collector of Estate Duty, Patiala. Shakuntala Sally died on 22.1.1996. Petitioner's husband expired on 18.2.1996. She found the original Will in first week of March, 1996 in the old record of the testator.
4. Petitioner has also pleaded that the testator's wife Shakuntala Sally has also executed a similar, Will on 15.1.1996, which was in accordance with wishes and desires expressed by the testator. The Will executed by Smt. Shakuntala Sally dated 15.1.1996 is also annexed with the petition alongwith Will executed by the testator dated 2.12.1973 and death certificates of her parents. On the basis of these averments, she prayed that the Letters of Administration/Probate of this last Will of the testator dated 2.12.1973 be granted in her favour.
5. Notices were issued to the respondents. Respondents 3 and 4 filed separate written statements and admitted that petitioner's petition be granted in her favour. Respondent No. 2 did not appear to contest the petition.
6. Petitioner examined herself and stated that her father Pt. Hari Lal Sally lived in Chandigarh, who died on 27.2.1974. His death certificate is at Exhibit P-3. She also stated that her father executed a Will in favour of her mother Smt. Shakuntala Sally on 2.12.1973. Shakuntala Sally died on 22.1.1996. Her death certificate is at Exhibit P-l. She has also stated that her mother paid Rs. 27,000/- as Estate Duty and she gave donations to Principal, D.A.V. College, Jalandhar and Principal, Mehar Chand Technical Institute, Jalandhar, respondents 5 and 6. Petitioner also stated on oath that she has three children. Her real brother died at the age of two months only. Thereafter, her parents adopted Tarun Kumar Sally-respondent No. 2, who is nephew of her mother.
7. Petitioner also examined Shri Ajit Singh Sharhadi, Senior Advocate, to prove the Will Exhibit P4, which was executed by Pt. Hari Lal Sally on 2.11.1973 and which was attested by this witness. This witness has proved that the testator, Pt. Hari Lal Sally, signed the Will, Exhibit P-4, in his presence. He and the other attesting witness attested it in the presence* of the testator. The other attesting witness had died.
8. From the plain perusal of the Will Exhibit P-4, it is evident that Pt. Hari Lal Sally executed this Will on 2.12.1973 wherein it is specifically mentioned 'All my property, movable or immovable, standing in my individual name, shall, after my death, devolve upon my wife, Shrimati Shakuntala Sally, in case she survives me. She will be an absolute owner and shall be entitled to alienate any part of the property if she so desires. If she does not survive me, or if she dies after me without making any fresh Will of her own, my property shall devolve in the manner indicated therein. This Will shall, in such an eventuality be considered as her Will also.' Below that movable or immovable properties owned by him are detailed. About his Undivided Hindu Family property also he has mentioned in the Will that his wife shall take over as Karta of the Hindu Undivided Family and shall be entitled to deal with it as she thinks fit. If she does not survive him or in case, after his death does not draw up any fresh Will, the aforesaid Hindu Undivided Family property shall be disposed of in the manner indicated therein.
9. Petitioner has also filed Will executed by her mother on 15.1.1996. Thus, it is obvious that the Will, Exhibit P-4, executed by Pt. Hari Lal Sally is superseded by the Will executed by Smt. Shakuntala Sally on 15.1.1996. It is proved that Shakuntala Sally has died. Thus it is obvious that on the basis of Will executed by Pt. Hari Lal Sally, Letters of Administration/Probate cannot be issued in favour of the petitioner. Hence, the petition is dismissed. But it is made dear that if she files any such petition for obtaining Letters of Administration/Probate on the basis of the Will dated 15.1.1996 executed by her mother, she is at liberty to do so.