Delhi District Court
Kanchan Singh vs The State Govt. Of Nct Of Delhi on 22 December, 2023
IN THE COURT OF SH. SHIV KUMAR, ADDL.
DISTRICT JUDGE-02 (WEST DISTRICT), TIS HAZARI
COURTS DELHI.
DLWT010031492019
Probate Case No.- 17/19
CNR No. DLWT01-003149-2019
Mrs Kanchan Singh
W/o Gurbachan Singh
R/o F-26-B, BSES Office,
Hari Nagar, Mayapuri,
South-West, Delhi-110064
...Petitioner
Versus
1. The State Govt. of NCT of Delhi
through Chief Secretary,
Players Building, Delhi Secretariat,
GNCT of Delhi, Indraprastha Marg,
I.T.O, New Delhi-110002
2. Manish Joshi
S/o late Puran Chandra Joshi
R/o GH-14/765, Paschim Vihar
New Delhi
......Respondents
PETITION UNDER SECTION 278 OF THE INDIAN
SUCCESSION ACT FOR GRANT OF LETTER OF
ADMINISTRATION
Date of institution of the case : 23.04.2019
Date of for judgment reserved : 24.11.2023
Date of pronouncement of judgment: 22.12.2023
PC No. 17/2019 Kanchan Singh Vs state Page 1 of 19
JUDGMENT
1. Vide this judgment, I shall decide the petition filed by the petitioner, under Section 278 of the Indian Succession Act whereby which the petitioner has sought grant of letter of administration in respect of property bearing no. GH-14/765 Paschim Vihar, Delhi.
CASE OF THE PETITIONER, AS PER HIS PETITION
2. According to the petition, the case of the petitioner in nutshell is that Late Sh. Puran Chandra Joshi (hereinafter referred to as ' the deceased'), father of petitioner had purchased a flat built up by the DDA bearing no. GH-14/765 Paschim Vihar, Delhi and this flat was allotted to the deceased on 07.09.1990 (hereinafter referred to as 'the property in question'). It is further averred that the original paper of the property in question is in the possession of respondent no. 2 and respondent no. 2 refused to give copy of the same to the petitioner and being the custodian of all the records pertaining to the allotment of the property in question, DDA can also bring the duplicate/office copy of the property documents.
3. It is further averred that the deceased, father of the petitioner died intestate on 14.01.2017, and the mother of the petitioner late Smt. Jayanti Joshi had also expired on 20.09.2006 without any Will and codicils. It is further averred by the petitioner that after the death of the deceased, the petitioner and PC No. 17/2019 Kanchan Singh Vs state Page 2 of 19 the respondent no. 2 are the survived legal heirs of the deceased and the property in question devolve upon the aforesaid legal heirs. It is averred that by virtue of Hindu Succession Act, the petitioner has also become the absolute co-owner of the property in question. It is further averred that the DDA & the Deputy commissioner (who were earlier added as respondent no. 2 & 3 but deleted from the array of parties vide order dated 21.08.2019) have not mutated/transferred/added name of the petitioner in the property of the deceased and are taking lame excuses while mutating/transferring/adding the name of the petitioner in the property to obtain succession certificate/letter of administration from the competent court. The DDA & the Deputy commissioner asked the petitioner to obtain succession certificate/letter of administration in her name and being aggrieved from that the petitioner has filed the present petition. By way of this petition, the petitioner has prayed for issuance of letter of administration in respect of the property in question of the deceased in her favour.
4. Upon filing the present petition, notice of the petition was issued to all the respondents. Citation for general public was published in the daily newspaper "Nav Bharat Times"
dated 03.06.2019. Notice was also served to the State through Chief Secretary and to the Collector/SDM for filing valuation report, however, no valuation report has been received in this case. No objections were received to the petition, from any person of general public despite publication of the citation in PC No. 17/2019 Kanchan Singh Vs state Page 3 of 19 newspaper, however, respondent no. 2 has appeared and has filed his objections to the petition of the petitioner.
5. It is pertinent to mention here that in the connected case bearing P.C. No. 36/19 titled as Manish Joshi Vs state & Ors, the SDM Punjabi Bagh has filed a valuation report in respect of the same property i.e. bearing no. GH-14, Paschim Vihar valuing the same to be of Rs.43,05,600/- (Rupees Fourty Three Lakh Five Thousand Six Hundred only).
6. In this case initially there were four respondents, however, vide order dated 21.08.2019, respondent no. 2/DDA and respondent no. 3 North MCD, were deleted as no relief was sought against them by the petitioner and now respondent no. 2 is the only contesting respondent in this case.
CASE OF RESPONDENT NO.2 ( initially arrayed as R-4), AS PER HIS REPLY.
7. Respondent no. 2 has filed reply/objection to the present petition by taking preliminary objections that the father of both the petitioner and respondent no. 2 has died not intestate, rather he had made a testamentary disposition of the property by way of 'registered will' dated 18.11.2014 in favour of respondent no. 2.
8. It is further contended that the factum of execution PC No. 17/2019 Kanchan Singh Vs state Page 4 of 19 of the Will in favour of respondent no 2 also came to the notice of petitioner, in the form of written notice from the DDA, when respondent no. 2 applied for mutation of the property in question and the said written notice was duly received by the petitioner. It is further contended that the petitioner has purposefully and knowingly dragged the respondent no. 2 in the court to harass him without any cause of action.
9. It is further contended that present petition is not maintainable as it does not disclose the requirements of chapter IV of part IX more specially the requirement of section 278 of the Indian Succession Act, 1925.
10. It is further contended that the present petition is not maintainable due to want of jurisdiction, survival certificate and proper court fees.
11. It is further contended that the petitioner after solemnization of inter-caste marriage, against the wishes and will of her late father, never looked after her parents neither financially nor emotionally till his last moment of life.
12. On merit all the contents mentioned in the petition are denied by the respondent no.2 and he prayed that petition filed by the petitioner may be dismissed with exemplary costs.
13. Petitioner has also filed replication to the written PC No. 17/2019 Kanchan Singh Vs state Page 5 of 19 statement, filed by respondent no. 2 and reiterated the contents of her petition and denied all the objections taken by respondent number 2.
14. On the basis of the pleadings, the following issues were framed vide order dated 01.11.2019.
1. Whether the deceased Sh. Puran Chandra Joshi had died intestate?OPP.
2. Whether the deceased last Sh. Puran Chandra Joshi had left behind a registered Will dated18.11.2014 in favour of respondent No. 4 Sh. Manish Joshi, his son? OPR4
3. Whether the petitioner is entitled to grant of Letters of Administration with respect to property bearing No. GH14/765, Paschim Vihar, New Delhi? OPP
4. Relief.
15. Parties were directed to adduce evidence.
EVIDENCE ON BEHALF OF PETITIONER
16. Ms Kanchan Singh, Petitioner, appeared in the witness box as PW-1 and tendered her affidavit in evidence as Ex PW-1/1. In her affidavit, she reiterated and reaffirmed the averments made by her in her petition and relied upon the following documents:
1. Mark PW-1/2: death summary of his father.
2. Ex. PW-1/3(OSR): copy of her Aadhar Card.PC No. 17/2019 Kanchan Singh Vs state Page 6 of 19
17. In her cross-examination, PW-1 deposed that they are one brother and one sister. The date of birth of her brother is 04th September. PW1 further deposed that she does not celebrate her birthday and she does not know the marriage anniversary of her parents. She further deposed that she knows that when her father expired, he was 80 years old and when her mother was expired, she was 55 years old, her mother expired 1015 years prior to her father. She further deposed that she is 4 years older than Manish/ respondent.
18. In her cross-examination, PW-1 further deposed that she did not remember the marriage anniversary of her brother Manish Joshi / respondent no 2. PW1 denied the suggestion that she had never cordial relation with her brother Manish. She further deposed that she had a cordial relation with her father. She further deposed that her father was doing the job of store officer in RAX Company.
19. In her further cross examination, PW1 deposed that she never had a bitter relation with her father. She further deposed that her relation turned bitter with her brother Manish, when he disclosed that he had a Will of his father in his favour. PW1 further deposed that when she filed the present petition, only then, she came to know that PC No. 17/2019 Kanchan Singh Vs state Page 7 of 19 Manish is having a Family Will of her father in his favour. She further deposed that before the filing of the present petition she had a very cordial relation with her brother Manish.
20. In her further crossexamination, PW1 deposed that her father expired on 14.01.2017. She admitted the suggestion that after the death of her father, she never visited to the house of her brother Manish. She does not remember when she had filed the present petition. She does not know the birthday of the son of Manish.
21. In her further crossexamination, PW1 deposed that she got married on 04.06.2006. She has three daughters. She further deposed that after the death of her mother, she used to visit to see her father. She admitted the suggestion that her father never told her about the execution of the Will in question. She did not remember the date and year when her father purchased the property in question but she was in her childhood. She further deposed that she knew that her father had purchased the building /residence, the subject matter of Will from taking the housing loan from HDFC Bank.
22. In further crossexamination, PW1 deposed that the marriage of Manish took place with the consent of PC No. 17/2019 Kanchan Singh Vs state Page 8 of 19 parents. The marriage of Manish solemnized after her marriage and she was present in the marriage ceremony of Manish.
23. In further crossexamination, PW1 deposed that her marriage took place with the consent of her parents and she never had requirement of assistance from her parents. She further deposed that her brother never helped her with any monetary assistance. She further deposed that she knows that her father only stayed one day in hospital before his death. Before that he never went to any hospital for his treatment, however, he was not very energetic fellow. She further deposed that her father visited her house several times.
24. In further crossexamination, PW1 deposed that she does not have any document in support of her claim in the present affidavit that her father was suffering from various diseases as mentioned in the said application. However, she voluntarily deposed that the said documents are in the possession of her brother. She denied the suggestion that since she never visited any time when the deceased fell ill that is why she does not have documents related to his alleged illness. She further deposed that the deceased had disease of Alzheimer for which he was being treated but she does not have any document.
PC No. 17/2019 Kanchan Singh Vs state Page 9 of 1925. She further deposed that in the year 2013, when she visited him then he failed to recognize her, then she concluded that he is having Alzheimer and also her brother told her about that. She further deposed that she never tried, on her part, to get her father treated for the said disease. He used to recognize her sometime after 2013 with a special effort. She further deposed that she has information that her father was under treatment of Dr Dhiraj Kumar for the disease of BP, Sugar and Alzheimer. She does not have any prescription etc of Dr Dhiraj Kumar. She had never visited to Dr Dhiraj Kumar with her father. She never purchased any medicine for her father with the prescription Dr Dhiraj Kumar. She came to know that treatment of her father was being done by Dr Dhiraj Kumar only on the information from her brother in 2013. She used to visit her father without any occasion.
26. In further crossexamination, PW1 denied the suggestion that her visit to her father was stopped after her marriage and she volunteers that no, she has started visiting since 2008. She further denied the suggestion that her father had denied her economic assistance, when she was in dire need of that. She further denied the suggestion that her brother used to economically help her without the knowledge and permission of father. She further denied the suggestion that for some years, her husband was not residing with her and Manish used to support her PC No. 17/2019 Kanchan Singh Vs state Page 10 of 19 logistically. She further denied the suggestion that her father did not like to meet her anytime. She further denied the suggestion that she got married against the will and wish of her father, that is why, he did not like her and her relation could not remain cordial with him.
27. PW1 further denied the suggestion that she used to demand the money and the property repeatedly from her father because of that her father got executed the Will in question, in favour of her brother. She further denied the suggestion that she had information of the execution of the Will since the first day. She further denied the suggestion that at the time of mutation of the property in question of the Will, the MCD had properly served her with the notice.
EVIDENCE ON BEHALF OF RESPONDENT NO.2.
28. From the side of respondent No.2, one witness has been examined i.e. R2W1/ Respondent No.2/ Manish Joshi.
29. Sh. Manish Joshi/respondent no. 2 entered into the witness box as R2W1 and tendered his affidavit in evidence Ex. R2W1/A and reiterated and re-affirms the contents of his reply. He relied upon the following documents:
(i) Ex. RW1/1: Copy of the registered Will dated 18.11.2014.PC No. 17/2019 Kanchan Singh Vs state Page 11 of 19
(ii) Ex. PW1/R1: The document which put to the plaintiff in cross examination and already exhibited as ExPW1/R1.
(iii) Ex. RW1/3: The copy of the property tax receipt dated 08.06.2007.
30. In his cross-examination, R2W1 deposed that he did not know if the document Ex.PW1/R1 is a coloured photocopy or is original one. R2W1 was shown Ex. PW 1/R1 and was asked to indicate the relevant line where he has been granted the mutation with regard to the property in question in his favour. In reply R2W1, has indicated the first paragraph of Ex. PW 1/R1 recording him as a tax payer.
31. R2W1 admitted the suggestion that he has not filed the ownership documents of the property in question in this case. R2W1 further admitted the suggestion that the deceased after taking advise from his friends had prepared the Will but he did not remember the names of the friends of the deceased, from whom the deceased sought advised and further deposed that one of them is witness no. 1 of the Will set up by him.
32. R2W1 denied the suggestion that he was not disclosing the names, as above since he had colluded with them to mis guide the deceased in preparing the Will in question. R2W1 further deposed in his cross examination that his father was doing a private job but he did not remember the exact name of the private employer. He was a store keeper.
PC No. 17/2019 Kanchan Singh Vs state Page 12 of 1933. R2W1 denied the suggestion that deceased was suffering from mental disease including mental illness Alzheimer, that is why he was externed from his job. R2W1 further denied the suggestion that the deceased was admitted to Maharaja Agarsain hospital from time to time but he went to hospital just one day before his death.
34. R2W1 further deposed in his cross examination that he was informed by his father about the Will in question. He cannot say as to whether his father had informed him about the Will in question, in the presence of other family members or friends.
35. R2W1 denied the suggestion that deceased was having good health and never fell ill to the extent that he was unable to put his signature on the Will. He further denied the suggestion that he was deliberately concealing the medical record of his deceased father. R2W1 further denied the suggestion that there was good relations between his late father and his daughter. He further deposed that his sister's marriage took place in Arya Samaz Mandir. He admitted the suggestion that he along with his parents and other relatives attended the marriage of his sister. He admitted the suggestion that it was a simple marriage.
36. R2W1 further denied the suggestion that the alleged Will was not executed in the sound state of mind of the deceased and the deceased was never known to the attesting witnesses. R2W1 further deposed that he did not inform his sister about the PC No. 17/2019 Kanchan Singh Vs state Page 13 of 19 said Will before applying for mutation in MCD. R2W1 admitted the suggestion that he had informed his sister about the Will set up by him after the present petition was filed. R2W1 further denied the suggestion that he was deliberately concealing the Will from his sister before filing of the present petition.
FINAL ARGUMENTS
37. I have heard ld. Counsel for the petitioner and ld. counsel for the respondent no.2 and have perused the entire record including pleadings, documents, and testimony of the witnesses examined in the court from the both sides. I have also perused the judgment dated 18-12-2023, given by this court in connected Probate Case No.- 36/19 CNR No. DLWT01-006751- 2019.
ISSUE -WISE FINDING
38. My issue wise findings are as under:-
Issue no.(2) Issue no. (2) Whether the deceased late Sh. Puran Chandra Joshi had left behind a registered Will dated 18.11.2014 in favour of respondent No. 4 Sh. Manish Joshi, his son? OPR4.
39. The onus to prove issue no. 2 is upon the respondent no. 2 (who was initially mentioned as respondent no.
4) and to prove this issue, the respondent no.2 has examined himself as R2W1.
PC No. 17/2019 Kanchan Singh Vs state Page 14 of 1940. The respondent no.2 had also filed a petition Probate Case No.- 36/19 CNR No. DLWT01-006751-2019 and decided by this court on 18-12-2023 for grant of probate of the Will in question and that petition was registered vide registration no. Probate Case No.- 36/19 CNR No. DLWT01- 006751-2019 and decided by this court on 18-12-2023 and the title of the suit is as follows: -
Probate Case No.- 36/19 CNR No. DLWT01-006751-2019 Manish Joshi S/o late Puran Chandra Joshi R/o GH-14/765, Paschim Vihar New Delhi ....Petitioner Versus
1. The State Govt. of NCT of Delhi through Principal Secretary, Delhi Secretariat, I.P. Estate, New Delhi-110002
2. Mrs Kanchan Singh W/o Gurbachan Singh R/o F-26-B, BSES Office, Hari Nagar, Mayapuri, South-West, Delhi-110064 ......Respondents
41. In the above-said petition having Probate Case No. 36/19 CNR No. DLWT01-006751-2019, issue no. 1 was framed as follows:
PC No. 17/2019 Kanchan Singh Vs state Page 15 of 19Issue no.1 Whether the deceased Sh. Puran Chandra Joshi executed a valid and enforceable Will dated 18.11.2014 as claimed by the petitioner? OPP
42. On 18.12.2023, this court has decided the said issue no 2 in the said petition and held that the petitioner (who is respondent no.2 in the present case) has failed to prove the due execution of Will in question and dispel the suspicions surrounding the execution of Will in question and the Will in question is not valid, legal and genuine Will and it has not been executed validly and is unenforceable.
43. The judgment in above probate petition has been passed by the court as a probate court and the judgment is in rem and also between the same parties. The petitioner and respondent no.2, in the present case, are bound by the said judgment. The finding of this court in the above said probate petition bearing Probate Case No.- 36/19 CNR No. DLWT01-006751-2019, on issue no. 2 that the Will in question is not valid, legal and genuine Will and it has not been executed validly and is unenforceable, is binding upon petitioner and respondent no 2 in the present case.
44. Therefore, in view of the above-said findings on issue no 2 in Probate Case No.- 36/19 CNR No. DLWT01- 006751-2019, it is held that respondent no.2 has failed to prove issue no.2 in the present case, accordingly issue no.2 is decided against respondent no.2 and in favour of the petitioner.
45. Finding on Issue no.1 PC No. 17/2019 Kanchan Singh Vs state Page 16 of 19 Issue no. 1: Whether the deceased Sh. Puran Chandra Joshi had died intestate? OPP Burden of proof of issue No. 1 is upon the petitioner. It is admitted fact that Sh. Puran Chandra Joshi, father of petitioner and respondent no.2 had died on 14.01.2017. The respondent no.2 has failed to prove issue no.2 that the deceased had left behind a valid and enforceable registered Will dated 18.11.2014 in his favour and no other Will executed by the deceased has either come on record or proved, therefore, it is held that the deceased has died intestate and accordingly issue no.1 is decided in favour of the petitioner and against the respondent no.2.
46. Finding on Issue no.3 Issue no. 1: Whether the petitioner is entitled to grant of Letters of Administration with respect to property bearing No. GH-14/765, Paschim Vihar, New Delhi ? OPP The burden of proof of issue No. 3 is upon the petitioner. It is admitted case of the parties that the Petitioner and the respondent no.2 are the daughter and son of the deceased and there is no other class one heirs of the deceased. Hindu Succession Act 1956 is applicable to parties being Hindu. As per section 8, 9 and 10 of Hindu succession Act 1956, the petitioner and respondent no.2, both are entitled for equal share in the separate property of the deceased. Therefore, issue no.3 is decided in favour of the petitioner and against the respondent no.2. In view of above discussion, it is held that petitioner is entitled to letter of administration in respect of half share in the property in question.
PC No. 17/2019 Kanchan Singh Vs state Page 17 of 19.
RELIEF
47. In view of above discussion and findings, the present petition is allowed and it is ordered that a letter of administration be issued to the petitioner to the extent of half share of the property in question i.e. GH-14/765, Paschim Vihar, New Delhi under the seal of this court in the form set forth in Schedule VII of The Indian Succession Act 1925, subject to completion of following requisite formalities such as:
(i) furnishing of requisite court fees on the half of the value of the property in question i.e. GH-14/765, Paschim Vihar, New Delhi.
(ii)) and further subject to furnishing of administration-cum-
surety bond to the amount of half of the value of the property in question i.e. GH-14/765, Paschim Vihar, New Delhi.
(iii) Further, the petitioner is directed to file the inventory of the immovable property i.e H-14/765, Paschim Vihar, New Delhi, within six months and final statement of account, within one year from the date of receipt of formal letter of administration from the court. The formalities of issuance of formal letter of administration, be completed within six months from the date of the judgment as per Section 290 & 291 read with Section 317 of Indian Succession Act.
48. In the end, needless to emphasize that the question of title, PC No. 17/2019 Kanchan Singh Vs state Page 18 of 19 share or ownership of immovable property in question has not been decided by this Court.
49. File be consigned to the Record Room after making all the necessary compliance and due formalities.
Digitally signed SHIV by SHIV KUMAR
KUMAR Date: 2023.12.22
16:14:42 +0530
Announced in open Court (SHIV KUMAR)
today on 22.12.2023 ADJ-02, West Distt.Tis Hazari
courts Delhi.
PC No. 17/2019 Kanchan Singh Vs state Page 19 of 19