JUDGMENT
Anil Kumar, J.
1. This order will dispose of petition under Section 278 of the Indian Succession Act for grant of letter of administration in respect of the estate of late Mr. V.E. Jacob as per his will dated 2nd May,1978. The petition is filed by Shri Nitya Ummed Jacob, as the constituted attorney of Shri Jaya Thomas Jacob, son of the deceased, contending that Mr. V.E. Jacob died on 26th December, 1991 at St. Stephens Hospital within the jurisdiction of this Hon’ble Court and at the time of his death he had a fixed pace of abode and residence at D-292, Nirman Vihar, Delhi.
2. Petitioner contended that Mr. V.E. Jacob had executed a will dated 2nd May, 1978. In the will he appointed his wife Smt. Ayesha Jacob, as the executor of the will and in case of Smt. Ayesha Jacob pre-deceasing him, he appointed his eldest son, Shri Jaya Thomas Jacob, as executor. Smt. Ayesha Jacob expired on 29th September, 1986 and Shri Jaya Thomas Jacob, another executor of the will, migrated to USA in 1968 where he is residing with his family up till now.
3. After the petition was filed notice, of the petition was sent to Shri Jaya Thomas Jacob, Ms. Piya Jacob, children of late Mr. V.E. Jacob who did not file any objection rather filed the affidavits contending that the legal heirs of Mr. V.E. Jacob are Shri Nitya Ummed Jacob, Shri Jaya Thomas Jacob and Ms. Piya Jacob and Shri Jaya Thomas Jacob and Ms. Piya Jacob have no objection to the grant of letter of administration in respect of the estate of late Mr. V.E. Jacob in accordance with his will.
4. The petitioner pleaded that Shri Jaya Thomas Jacob, surviving executor of the will, has executed a power of attorney dated 31st March, 1993 in favor of petitioner authorising him to apply for probate or letter of administration in respect of will of late Mr. V.E. Jacob. Amendment to the petition was sought seeking amendment that the petition was filed by Shri Nitya Ummed Jacob as Constituted attorney of Jaya Thomas Jacob which was allowed by order dated 10th July, 2001
5. The petitioner filed the affidavit and proved the power of attorney dated 31st March, 1993 executed by Shri Jaya Thomas Jacob in favor of Shri Nitya Ummed Jacob authorising him to apply for probate or letter of administration in respect of the estate of Mr. V.E. Jacob. The attesting witnesses of will dated 2nd May, 1978, Maj. C.K. Kurian gave his statement by filing an affidavit dated 3rd September, 2002 sworn at Kottayam.
6. The petition for grant of letter of administration was supported by an affidavit of Shri Kumalil John Zachariah another attesting witness who had died on 12th March, 2003 and a death certificate of Shri Kumalil John Zachariah was proved and exhibited as PW1/5.
7. The attesting witness of the will Maj. C.K. Kurian categorically deposed that at the time of execution of will by Mr. V.E. Jacob, he was working in Signals Directorate, Army Headquarters, New Delhi. He deposed that Shri V.E. Jacob and he hail from Kerala and were family friends since 1950’s and in 1978 Mr. V.E. Jacob had expressed a desire to execute a will and had asked him to be an attesting witness.
8. The attesting witness deposed that on 2nd May, 1978 he and Mr. K.J. Zachariah, the other attesting witness were called by Mr. V.E. Jacob for witnessing the execution of his will. He deposed that Mr. V.E. Jacob signed the will in his presence and in the presence of other witness. The attesting witness deposed that after the will was signed by Mr. V.E. Jacob he signed the will and thereafter another witness signed the will.
9. The petitioner proved the death certificate of Mr. V.E. Jacob as Pw1/1. He also proved no objection filed by his brother, Shri Jaya Thomas Jacob, as PW1/2 and no objection to the will of late V.E. Jacob by her daughter Smt. Piya Jacob as Exhibit PW1/3. He also proved the power of attorney executed by Shri Jaya Thomas Jacob in favor of the petitioner as PW1/4 and the death certificate of Mr. K.J. Zachariah, an attesting witness of the will of his father, as Exhibit PW1/5. The petitioner has also proved the valuation of the assets and exhibited the same as PW1/7 and contended that he has filed the petition in his capacity as the attorney of the executor named in the will Shri Jaya Thomas Jacob, his elder brother.
10. The Petitioner deposed that the funeral expenses of deceased Shri V.E. Jacob were Rs. 5000 and proved the schedule of Debt as Exhibit PW-1/8. The valuation report of the Revenue Authority, Gurgaon in respect of plot No. F-2625, admeasuring 800 sq. yards at Palam Vihar was proved and exhibited as PW1/9.
11. From the deposition of the attesting witness of the will dated 2nd May, 1978, it is established that Mr. V.E. Jacob, father of the petitioner, was of sound disposing mind at the time he executed the will which was signed by him and thereafter by attesting witnesses, Major C. Kurian and Mr. C.K. Zachariah. The will was thus proved and exhibited as exhibit Ex.PW1/6.
12. Considering the depositions of the attesting witness, Major C. Kurian and the deposition of the petitioner, the inevitable inference is that the will of Mr. V.E. Jacob has been proved.
13. There is no other evidence on the record to caste any doubt about the authenticity of the will. The will thus has been proved by the petitioner.
14. The probate of the will is granted under Section 222(1) of the Indian Succession Act, 1925 only to the executor of the will. The present petition has been filed by Nitya Ummed Jacob, who is not the executor of the will. On his petition, the executor filed an affidavit deposing that he has no objection to the will of his father and for allowing the petition of the petitioner.
15. Petitioner has proved the attorney of his brother, Jaya Jacob Thomas which fact has not been rebutted. This is also not disputed that the Mr. Jaya Jacob Thomas is not residing in Delhi and is residing in U.S.A with his family members. Under Section 241 of the Indian Succession Act,1925 when an executor is absent from the State in which petition is made and no other executor within the State is willing to act, then letter of administration, with the will annexed can be granted to the attorney or agent of the absent executor, for the use and benefit of his principal.
16. Admittedly, the sole surviving executor Shri Jaya Jacob Thomas is not living in India and within the State of Delhi and there is no other executor in the State willing to act as executor as the wife of the deceased who was also appointed as executor of the will has also died. The petitioner has proved the power of attorney executed by the surviving executor in favor of the petitioner.
17. Consequently the petitioner is entitled for grant of Letter of Administration with annexed will of Late Mr. V.E. Jacob dated 2nd May, 1978.
18. Therefore, in totality of circumstances, the petition is allowed and the petitioner is granted Letter of Administration with the annexed will dated 2nd May, 1978 of Late Mr. V.E. Jacob. In the facts and circumstances of the case, the execution of administration bond by the petitioner is also dispensed with.