RAJ KUMAR SINGH Vs. JAGJIT CHAWLA

JUDGEMENT

(1.) The challenge by means of this first appeal under Section 299 of the Indian Succession Act, 1925, is to the impugned order of the probate court dated 25.11.1993, which has granted probate of the Will of the deceased Sh. Sohan Singh dated 3.1.1976.

(2.) Before proceeding further, I must state that the present case is not one of the cases where there is a classical dispute with respect a Will inter se heirs of the deceased. In the city of New Delhi, before the provision of Section 53-A of the Transfer of Property Act 1882, dealing with the doctrine of part performance and incorporation of Article 23-A in FAO No.34/1994 Page 2 of 14 the Stamp Act as applicable to Delhi requiring Stamp duty of 90% of the value of an Agreement to Sell were amended by Act 48 of 2001, transfer of title of an immovable property in Delhi was taking place by documents being the Agreement to Sell (taking benefit of doctrine of part performance under Section 53-A of the Transfer of Property Act 1882), General Power of Attorney (on the basis of Section 202 of the Contract Act 1872, where a power of attorney given for consideration could not be cancelled), Will (to operate after the death of the seller as the power of attorney after death is not effective). The amendment which was brought about to Section 53-A of the Transfer of Property Act, 1882 along with the related provisions is The Registration and other Related Law (Amendment) Act, 2001 [Act No. 48 of 2001].

(3.) I am stating these preliminary facts because in ordinary cases with respect to dispute with regard to execution of Will, there arise issues with respect to either suspicious circumstances surrounding the Will or why the some of the natural heirs are disinherited or the propounder taking active participation in making of the Will and so on, but these aspects would pale into insignificance in the facts of the present case where basically the Will has been executed in furtherance of the action for transferring of the property being plot No.75 admeasuring 200 sq. yards in Block-C, Jhilmil Tahirpur Residential Scheme G.T Road, Railway Lines near I.T.I.Shahdara, Delhi. (in short the subject property?) In fact, the subject Will Ex.P-1 FAO No.34/1994 Page 3 of 14 dated 3.1.1976 was preceded by a registered General Power of Attorney (GPA) Ex.PW3/1 dated 3.12.1973 with respect to the subject property.