Delhi District Court
Vide This Order vs State & Others 1/9 on 15 December, 2015
IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
DISTRICT JUDGE-02, WEST, DELHI.
M-36/14
Amrik Singh
vs.
State & others
ORDER
15.12.2015
1. Vide this order, I shall decide an application of the respondents under Order 9 Rule 13 read with Section 151 CPC for setting aside order/judgment dated 26.03.1991 by the then Ld. District Judge Sh. P.K. Jain, in Probate Case No. 268/1989.
2. In brief the facts are that vide judgment dated 26.03.1991 passed by the then Ld. District Judge Sh. P.K. Jain, the above mentioned probate petition was disposed of ex- parte against the respondent no. 2 to 5 and thereafter the petitioner was also directed to furnish Valuation Report, requisite Court Fee and Administration Bond with one surety. However, the petitioner failed to comply with the above said requisite formalities till 2002 for the reasons best known to him or with malice motive that none of the respondents would be able to challenge the probate of alleged Will if substantial period has been passed. It is submitted that late Shri Ranjit Singh died intestate and left behind the legal heirs M-36/14 Amrik Singh vs. State & Others 1/9 i.e. petitioner and respondent nos. 2 to 5 and during her life time, he did not execute any Will with regard to his movable or immovable estate. Sh. Ranjit Singh died on 27.06.1987 at Ghaghria, Joshi Math, UP while he was on his pilgrimage journey along with his beloved sons Gurucharan Singh, Harpal Singh and his wife Smt. Ram Kaur. Since father of the parties died in Gurudwara, the management of Gurudwara at Joshi Math took responsibility to bear all expenses of cremation of said Sh. Ranjit Singh. Further, all the sons of late Sh. Ranjit Singh lived together as joint family till death of their father and further remained as a joint family upto 2001 and as such question of bequeathing his entire properties only to the petitioner is absolutely unbelievable. Even the alleged Will also do not reflect any rift or rage between executant Sh. Ranjit Singh and his other legal heirs.
3. The petitioner surreptitiously, secretly and in a very calculated manner filed the present probate petition on the basis of the forged, fabricated and concocted Will dated 04.04.1986, inspite of the fact that the petitioner himself had been residing along with respondents in the property in question. There is no whisper in the family which comprises of 16 members that the present petitioner has filed a probate petition against the respondents. The respondents had never ever received summons or any kind of information regarding probate case filed by the petitioner, from the concerned court. Further, the service of petition, if any, was got effected in collusion or deep rooted conspiracy of the petitioner with the concerned Process Server, otherwise the respondents would have certainly appeared before the concerned court M-36/14 Amrik Singh vs. State & Others 2/9 and would have diligently contested the said false petition because the property in question is the only place with the respondents to reside. Further, it is hard to imagine that if anyone of the brothers who have been living in the same house with the respondents and shared the kitchen could have allowed the petitioner to grab the property by filing false, frivolous and fictitious petition. The petitioner obtained the service report fradulently and by manipulating the same and due to said reason, one of the respondents were aware about the pendency of probate petition.
4. Further, the petitioner intentionally or in a very calculated manner did not comply with the order of the court regarding completion of formalities till the year 2002, which create serious doubt upon the integrity of the petitioner. Further, by the year 2001, all the respondents raised constructions in the property in question upto two and a half floors. The wife of respondent no.2 also took a bank loan of Rs.2,50,000/- in the year 2001 for raising construction in their respective portions. Earlier the property in question was constructed by late Sh. Ranjit Singh in the year 1975 which comprises of ground floor and partly constructed first floor. Each of the respondents occupied one room including verandah, courtyard and one common kitchen for families of all the respondents and respondent no.5, who is mother, used to reside with respondent no.2. The petitioner had been residing in one room along with verandah at the first floor. In the year 2001, all the respondents including the present petitioner developed and constructed the property in question and each of the respondents have individually raised M-36/14 Amrik Singh vs. State & Others 3/9 construction in their respective portions of the property in question. Thereafter, each of the respondents obtained No Objection Certificate from their mother including the present petitioner with regard to obtaining separate electricity and water connections for their respective portions in their respective names. The petitioner had never raised any sort of objection nor he ever disclosed about the fact that he had already obtained the probate from the competent court and as such the respondents have no right to raise construction upon the property in question. The acts or omissions of the petitioner clearly go to show that the petitioner had deliberately played fraud with the respondents in obtaining the probate on the basis of the forged, fabricated and concocted Will dated 04.04.1986. The alleged probate was granted on 26.03.1991, at that time the property was comprising of ground floor having four rooms, common drawing room and partly constructed first floor having one room which was occupied by the petitioner but in the year 2001, all the respondents had raised constructions upto two and a half storey and having made substantial changes, additions and alterations in the property in question, accordingly as on date the petitioner willfully and deliberately made false statements before this Court that he has not made any construction, changed title owner description or the property and maintained the same as it was at the time of grant of probate. Therefore, he is liable to be prosecuted for perjury. Further the petitioner also did not give true inventory of the property in question.
M-36/14 Amrik Singh vs. State & Others 4/9
5. Further, in the year 1982, the respondent nos. 4 & 5 herein, took a bank loan and the deceased father of respondents Sh. Ranjit Singh mortgaged the property in question in favour of Jammu & Kashmir Bank, which was subsequently compromised in the year 2000 with the said bank. In the said recovery suit, petitioner was also arrayed as party in the said suit along with other respondents, which goes to show that the property in question was jointly inherited by each of the respondents including petitioner.
6. Further, on 16.04.2014, all the above mentioned facts came to the knowledge of the respondents after receipt of the intimation letter by the South Delhi Municipal Corporation addressed to the respondents regarding mutation of the property in question on the basis of the probate Will. Thereafter, the respondents inspected the above said case file on 01.07.2014 through their Counsel and filed the present application for setting aside the order in question as the petitioner intentionally and willfully contravened the provisions of Sections 87 and 128 of the Indian Succession Act. Further, the respondents herein have never been granted any opportunity of being heard in the above matter and the report regarding the alleged service of respondents on the summons has been obtained in collusion with the Process Server.
7. The non-applicant/ petitioner filed reply to the application and taken preliminary objections that the application is misuse of process of law and the application is highly belated. Further, the applicants/respondents have M-36/14 Amrik Singh vs. State & Others 5/9 been served with the summons of the Trial Court before granting the succession in favour of the petitioner and the Court passed the same after publication in newspaper and fulfilling all the formalities according to law. The respondents are bound by the law of estoppal by their conduct as they had been served at proper address and their acknowledgment also have been received to this Court, therefore the application is not maintainable. Further the respondents neither made any effort to approach any competent court since the death of their father nor they had filed any suit for partition, which clearly indicates that they had not come to the court with clean hands.
8. On merits, all the averments made in the application are denied. It is submitted that the Will dated 04.04.1986 executed by Sh. Ranjeet Singh, the father of the parties to lis and the same was found in possession of Sh. Chander Mohan Sanon, Advocate and two attesting witnesses were there. Moreover, the said Counsel was also examined and thereafter the probate on the Will dated 04.04.1986 was granted to the petitioner. Further, the petitioner had made every effort to call the respondents before the Court as the perusal of the court file reflects that petitioner had filed PF for 06.02.1989, then for 06.07.1989, then again issued publication in daily newspaper 'Veer Arjun' on 04.08.1989 and then the petitioner got issued summons to Ram Kaur, Devender, Harpal Singh, Dalip Singh and Gurcharan Singh to appear on 26.10.1989. Further, the court filed also reflects that one of the Objector inspected the case filed on 14.12.2010 through Counsel but till 2014, they had not filed M-36/14 Amrik Singh vs. State & Others 6/9 any application of such kind. Further, the petitioner had allowed the respondents to reside in the suit property being family members but they had no right to get title as they never joined the proceedings of the court and now the judgment and decree attained finality and the applicants/ respondents have no ground to set aside the decree i.e. probate order dated 26.03.1991.
9. I have heard Sh. Mukesh Kumr, Ld. Counsel for the applicants/respondents and Sh. Himanshu Jawa, Ld. Counsel for the non-applicant/petitioner and perused the record.
10. The arguments are confined to maintainability of the application under Order 9 Rule 13 CPC. Ld. Counsel for the applicants relied on judgments, S.P. Kaveri Achi v. C.T. Ramasamy, AIR 2008 Madras 235; Rukmini Bai & Anr. v. Umabai Shankar Jadhav & Ors., AIR 2008 (NOC) 329 (Kar.); Smt. V. Prabha v. The State, AIR 1995 Delhi 128. He submitted that Order 9 Rule 13 CPC is applicable because the probate order dated 26.03.1991 is an ex-parte order. Therefore, for setting aside the ex-parte judgment, present application under Order 9 Rule 13 CPC is maintainable.
11. On the other hand, Ld. Counsel for the non- applicants/petitioner submits that present application is not maintainable because as per provisions of Indian Succession Act, 1925, in case applicants wish to revoke or annul the probate order dated 26.03.1991, then they have to invoke the provisions as provided under Indian Succession Act.
M-36/14 Amrik Singh vs. State & Others 7/9 Therefore, application is liable to be dismissed.
12. I have considered the submissions of both the Counsels and gone through the judgments relied by Ld. Counsel for the applicants. The law is well settled that Indian Succession Act, 1925 is a Code in itself. The Part IX deals with the probate, letter of administration and administration of assets of deceased. The Chapter - I of this Part from Section 218 to 236 A deals with this subject. The Chapter-II deals with the limited grants from Section 237 to 260. Chapter-III deals with alteration and revocation of grants from Section 261 to
263. Chapter - IV deals with practice in granting and revoking Probate and Letter of Administration from Section 264 to 302. Similarly, this Part IX having 12 Chapters, which exclusively deals with this subject. Now in the light of these provisions, let us examine the judgments relied by Ld. Counsel for the applicants.
13. The first judgment of S.P. Kaveri Achi (Supra). In this case the original petition for grant of probate was converted into the title suit. Therefore, it is distinguishable in the present facts and circumstances of the case. In the case of Rukmini Bai (Supra), also it has been observed that the provisions of Order 9 Rule 13 CPC are not directly applicable and the provisions shall be invoked read with Section 263 of the Indian Succession Act. Hence, simplicitor application under order 9 Rule 13 CPC cannot be entertained. Therefore, this judgment is also distinguishable in the present facts and circumstances. The other judgments relied by Ld. Counsel for the applicants is Smt. V. Prabha (Supra), the Hon'ble High M-36/14 Amrik Singh vs. State & Others 8/9 Court exercised its inherent powers and the proceedings were pending before the Court. Therefore, the facts of the present case are distinguishable. The remaining judgments relied by Ld. Counsel for the applicants are Adivekka & Ors. v. Hanumavva Kom Venkatesh, AIR 2007 SC 2025 and Kavita Kanwar v. State, 211 (2014) DLT 448. In these two cases the aggrieved party challenged the probate order under Indian Succession Act. It is clear that Order 9 Rule 13 CPC has no direct applicability. The aggrieved person has to approach under Indian Succession Act.
14. Hence, on the basis of above observations and discussion on the limited point of maintainability of the application under Order 9 Rule 13 CPC and not on merits, it is held that the present application is not maintainable. Hence, application under Order 9 Rule 13 CPC is dismissed.
15. The opinion expressed herein shall not tantamount to expression of opinion on the merits of the application under Order 9 Rule 13 CPC.
16. File be consigned to Record Room.
Announced in the open court today the 15th December, 2015.
(Sanjay Kumar)
ADJ-02,West/Delhi
15.12.2015
M-36/14 Amrik Singh vs. State & Others 9/9