Delhi District Court
Asha Khurana vs . State & Ors. on 9 May, 2016
Asha Khurana vs. State & Ors.
In the Court of Additional District Judge02, South District, Saket Courts
Complex, Room No. 602, 6th Floor, New Delhi
In the matter of:
PC No. 43/2014
Unique No. 02406C0331372014
Senior Citizen Case
Date of filing of petition: 28.11.2014
Date of institution : 01.12.2014
Decision reserved on : 27.04.2016
Date of decision: 09.05.2016
Mrs. Asha Khurana,
d/o Late Chander Prakash Sethi,
R/o 1/3, Sarvapriya Vihar, New Delhi. ... Petitioner
Versus
1. State.
2. Sh. Mahadev Khurana, s/o Late M.M. Khurana,
R/o 1/3 Sarvapriya Vihar, New Delhi110016.
3. Mrs. Ashima K. Ghosh, d/o Sh. Mahadev Khurana,
R/o 4, Mesa Road, Syosset, NY, United States 11791.
4. Sh. Rajat Khurana, s/o Sh. Mahadev Khurana,
R/o 11435, 79th Way NE, Kirkland, WA, United States 98034.
Respondent no. 3 & 4 also at:
1/3 Sarvapriya Vihar, New Delhi16.
Respondent no. 3 & 4 also at: C/o Mr. Bipin Behl,
M57, Chittranjan Park, New Delhi19. ... Respondents
JUDGMENT
(on petition under section 276 of Indian Succession Act, 1925 for grant of Letters of Administration of in respect of property of Sh. Madan Mohan Khurana)
1. (Introduction) - This is a petition by Smt. Asha Khurana for letters of administration in respect of Will dated 09.06.2003 and Codicil dated PC No. 43/14 Page no. 1 of 8 Asha Khurana vs. State & Ors.
10.04.2007 of her fatherinlaw Sh. Madan Mohan Khurana. The respondent no. 3 & 4 are her daughter and son respectively, they have not opposed the petition. The respondent no. 2 is husband of petitioner, but till the stage of final arguments, he had not appeared and when appeared he filed objections and then matter was got referred to Mediation Center, Saket, Delhi which recorded the proceedings dated 31.03.2016 with regard to their other dispute as well as facts pertaining to this petition. Now the case is being taken as set up by the parties. 2.1 (Status of parties) - Sh. Madan Mohan Khurana, s/o Late Rai Bahadur Chaman Lal Khurana, died on 30.06.2007, his death certificate is now Ex. PW1/A (hereinafter referred as deceased), was having his fixed place of abode at New Delhi and he died within the jurisdiction of this court. His wife Smt. Rani Khurana passed away on 01.12.2012 (her death certificate is now Ex. PW1/B). The respondent no. 2/ Mahadev Khurana is son of deceased, petitioner Smt. Asha Khurana is daughterin law of deceased and respondent no. 3/ Ashima K. Ghosh and respondent no. 4/ Rajat Khurana are grandchildren of deceased. 2.2 (Estate of deceased) - Sh. Madan Mohan Khurana owns property bearing no. 1/3, Sarvapriya Vihar, New Delhi16, which comprises the ground floor, the first floor and the top floor (hereinafter referred as the estate of deceased). He, during his lifetime, executed a registered Will dated 09.06.2003 (now Ex. PW2/1, earlier Mark A/PW1), which was registered as document no. 2978, Additional book no. III, volume no. 365, pages 10 to 10 on 01.07.2003, whereby he gifted terrace/ top floor to his PC No. 43/14 Page no. 2 of 8 Asha Khurana vs. State & Ors.
son/ respondent no. 2/ Mahadev Khurana. As per Codicil dated 10.04.2007 (now Ex. PW3/1) the testator bequeathed to Smt. Rani Khurana life interest in the ground floor and the first floor, and after her demise, the first floor has bequeathed to petitioner and respondent no. 2 (namely Mrs. Asha Khurana and Sh. Mahadev Khurana) jointly, the ground floor has been bequeathed to respondent no. 3 and respondent no. 4 (namely Mrs. Ashima K. Ghosh and Sh. Rajat Khurana). No other properties and effects have been left by the deceased in favour of petitioner or respondent nos. 3 & 4. There is no legal impediment for grant of letters of administration.
2.3 No other application or similar petition have been filed in any court or any other court in India for grant of letters of administration. The petitioner requests for letters of administration in respect of estate of deceased on the basis of Will and Codicil. This petition is verified by Smt. Promila Suri/ PW2 (a witness to Will) and Sh. J.M. Manchanda/ PW3 (a witness to Codicil) besides verified by the petitioner.
3. (Proceedings) - On receipt of this petition, when the Will and Codicil were perused, the Will named two executors namely Maj. General S.C. Suri (Retd.) and V/ADM R.B.Suri (Retd.) and Codicil also names Maj. General S.C. Suri (Retd.) and Sh. J.M. Manchanda as executors, however this petition was not filed by any of them but by Smt. Asha Khurana, one of the beneficiaries. Then it was disclosed that Sh. R.B. Suri had passed away, consequently special citation was issued to other named executors. Sh. J.M. Manchanda appeared personally on 24.01.2015 and he given up PC No. 43/14 Page no. 3 of 8 Asha Khurana vs. State & Ors.
his executorship on medical conditions. Similarly, the other executor Maj. General S.C. Suri, through his counsel appeared with his affidavit and clinical report that he is suffering from vascular Parkinson disease, he is 85 years of age and because of medical compulsion he would not be able to carry his responsibility of executorship. He also given up his executor ship. Then, case was proceeded.
4.1 (Citations) - The citation was issued to the general public, also, by way of publication in the Statesman dated 03.03.2014, in the court complex, Saket, office of District Magistrate visavis citation was also issued to respondent nos. 2 to 4. However, none appeared from the general public/ State to join the proceedings. The petition cites valuation of the property in para 6 thereof.
4.2 The respondents 3 & 4 had filed their separate reply to the petition in compact forms, they have no objection to allow the petition. 4.3 Whereas, respondent no. 2 was served long back on 31.01.2015 but he failed to appear. When the case was at the juncture of final arguments, the respondent no. 2 put his appearance through counsel on 10.08.2015 and forwarded a plea that he was never served with citation but learned about the case in process of mediation in other case. There was request to inspect the record. He forwarded objections to the petitioner and also brought the same on court record, which has been replied by the petitioner. At the same juncture, the petitioner and respondent no. 2, being family matter, got the case referred to the Mediation Center, Saket, Delhi where the petitioner and respondent no. 2 PC No. 43/14 Page no. 4 of 8 Asha Khurana vs. State & Ors.
settled their various issues inclusive on the point of maintenance, suit for declaration, partition, possession, permanent injunction and petition for dissolution of marriage etc; but for the purposes of present petition, the respondent no. 2 had no objection.
4.4 The petitioner had led the evidence and also completed it when respondent no. 2 cause his appearance and filed objection but in view of the proceedings before Mediation Center, Delhi, the respondent no. 2 has no objection and no formal issue had arisen to be framed. 5.1 (Evidence) - At the stage of petitioner's evidence, the petitioner/ PW1/ Ms. Asha Khurana stepped into the witness box and petitioner also got examined PW2/ Smt. Promila Suri, an attesting witness to the Will and another witness PW3/ Sh. J.M. Manchanda, a witness to codicil/ Will. Then, evidence was closed.
5.2 There is no evidence of respondent no. 2.
6.1 (Final submissions) At the juncture of final hearing, Sh. Bhavuk Chauhan, counsel for petitioner and Sh. Ravinder Singh, counsel for respondent no. 2 have made brief submissions.
6.2 Ld. Counsel for petitioner requests that the testimony of all the three witnesses remained unchallenged, even the respondent no. 2 has also accepted the Will and Codicil of deceased/ testator. Moreover, the petitioner has proved the Will and petition by examining the petitioner and attesting witnesses, consequently the petitioner is entitled for letters of administration. The parties are related with each other and there was amicable settlement through the office of Mediation Center, Saket, Delhi.
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Asha Khurana vs. State & Ors.
The other respondent nos. 3 & 4 have also filed their no objection to the petition. Ld. Counsel for petitioner also highlights that respondent no. 2 has nothing to say or object the Will and Codicil because in case FIR no. 316/11, PS Malviya Nagar, he had furnished the copy of Codicil to the police authorities, which confirms about the Will and Codicil. 6.3 Ld. Counsel for respondent no. 2 submits that court may pass appropriate order since settlement arrived is not disputed and respondent no. 2 also does not dispute the Will or the Codicil.
7.1 (Findings) The contentions of petitioner is considered and assessed in view of evidence on record and statutory provisions of law of Indian Succession Act, 1925 and section 68 of the Evidence Act, 1872. 7.2 The petitioner/ PW1 has deposed on the lines of petition. Her testimony remained unchallenged on all counts either with regard to demise of Sh. Madan Mohan Khurana or his death certificate or his estate or the Will (Ex. PW2/1) or Codicil (Ex. PW3/1). The title of Codicil is Will but its contents are in continuation of Will (Ex. PW2/1), therefore, the said Will Ex. PW3/1 is treated as Codicil.
7.3 PW2/ Ms. Promila Suri is an attesting witnesses in the Will (Ex. PW2/1) and PW3/ Sh. J.M. Manchanda is an attesting witness in the Codicil (Ex. PW3/1). Both the witnesses deposed that the Will and the Codicil were subscribed in their presence at relevant points of time; both of them have identified their signatures on the Will and also on the Codicil as well as signatures of testator Sh. Madan Mohan Khurana. They also made declaration/ verification to the petition.
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Asha Khurana vs. State & Ors.
Thus, the evidence on record satisfies requirement of section 63 of Indian Succession Act, 1925 as well as requirement of Section 68 of Indian Evidence Act. Both the Will and the Codicil have been proved by petitioner.
7.4 The petitioner is one of the beneficiaries/ legatees in the Will and the Codicil. The testimony of petitioner/ PW1 also remained unchallenged.
7.5 Since the Will names executor and similarly the Codicil but the executors have renounced their executorship. In that eventuality the beneficiaries are entitled for letters of administration in terms of section 231 of Indian Succession Act, 1925.
8. In view of the above, it is held that petitioner has established the petition for letters of administration in respect of estate of deceased and she is held entitled for letters of administration.
However, letters of administration with Will (Ex. PW2/1) and Codicil (Ex. PW3/1) will be issued on the prescribed form VII but it would be subject to - (i) filing of appropriate of stamp / Court fee; (ii) she will also furnish Administration Bond, both of them could be filed within a period of two months from today; visavis subsequently, (iii) she will furnish full and true inventory of the said property and credits and exhibit the same in the Court within six months from the date of grant of Certificate on prescribed Form No. 178 and; (iv) to render true account of said property and credits within one year on prescribed Form No. 179.
Further, it is made clear that allowing of petition for letters of PC No. 43/14 Page no. 7 of 8 Asha Khurana vs. State & Ors.
administration would not tantamount to be any declaration of title of estate of deceased.
The original Will and Codicil will remain part of the judicial file, in terms of section 294 of the Indian Succession Act, 1925 and they will not be returned to the petitioner.
Accordingly, the petition stands disposed off. File be consigned to record room.
Announced in the open Court today (Inder Jeet Singh)
ससमववर, Vaisakha 19, Saka 1938 Additional District Judge02
(South), Saket, New Delhi / 09.05.2016
PC No. 43/14 Page no. 8 of 8
Asha Khurana vs. State & Ors.
PC No. 43/2014
09.05.2016
Present : Proxy counsel for petitioner.
None for State/ general public/ respondent no. 1.
Sh. Ravinder Singh, counsel for respondent no. 2.
Proxy counsel for respondent no. 3.
None for respondent no. 4.
It is judgment day today. Vide separate judgment announced today, the petition for Letters of Administration is allowed. However, letters of administration with Will (Ex. PW2/1) and Codicil (Ex. PW3/1) will be issued on the prescribed form VII but it would be subject to - (i) filing of appropriate of stamp / Court fee; (ii) she will also furnish Administration Bond, both of them could be filed within a period of two months from today; visavis subsequently,
(iii) she will furnish full and true inventory of the said property and credits and exhibit the same in the Court within six months from the date of grant of Certificate on prescribed Form No. 178 and; (iv) to render true account of said property and credits within one year on prescribed Form No. 179.
The original Will and Codicil will remain part of the judicial file, in terms of section 294 of the Indian Succession Act, 1925 and it will not be returned to the petitioner.
In the meantime, Junior Judicial Assistant/ Reader attached to the court will also compute the court fee payable.
Accordingly, the petition stands disposed off. File be consigned to record room.
(Inder Jeet Singh)
ADJ02 (South), Saket
M New Delhi / 09.05.2016
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