Delhi High Court
Dra Mountford vs State Government Of Nct Of Delhi & Ors on 8 May, 2018
Equivalent citations: AIRONLINE 2018 DEL 542
Author: Yogesh Khanna
Bench: Yogesh Khanna
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 02nd May, 2018
Pronounced on: 08th May, 2018
+ TEST.CAS. 57/2014, IA Nos.25733-35/2014
DRA MOUNTFORD ..... Petitioner
Through : Mr.Siddharth Yadav, Mr.Wasim,
Advocates.
versus
STATE GOVERNMENT OF
NCT OF DELHI & ORS.
..... Respondents
Through : Mr.Mohit Daultani, Mr.Aman
Nandrajog, Advocates for
respondent no.2.
Mr.G.S.Raikhy, Advocate for
respondent No.3.
Mr.Manmeet Arora, Mr.Pratyush
Sharma, Mr.Kehsav Sehgal,
Advocates for respondent no.4.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
IA No.25736/2014
1. This application under Section 151 of the Civil Procedure Code (hereinafter referred as 'the CPC') is moved by the respondent No.4/applicant for dismissal of the petition.
IA No.25736/2014 in TEST.CAS. 57/2014 Page 1 of 92. Before coming to application, it would be apposite to state few relevant facts as follows:-
a) Late Manohar Singh Kochhar was the father of respondents No.2 to 4;
b) during his lifetime he executed a Will dated 18.10.2003 and bequeathed every asset either to his son - respondent No.2 or to his grand sons viz son of respondent No.2 to the exclusion of respondents No.3 & 4;
c) the testator appointed the petitioner as his sole executor of the Will;
d) the testator unfortunately expired on 27.01.2014;
e) the Will dated 18.10.2003 mentions nine movable/immovable properties as follows;
i. Immovable property No.71, Sunder Nagar, New Delhi- 110024.
ii. The right to receive rent from tenant of Ground Floor of property no.71, Sunder Nagar, New Delhi-110024 iii. All the movable assets lying at property No.71, Sunder Nagar, New Delhi-110024 iv. All the movable properties lying in the Willow bank Estate and Willow Bank Cottage, Shimla v. Commercial tenancy rights of premises No.E-24, Connaught Place, New Delhi vi. Shareholding of Testator in M/s Giggles Pvt. Ltd. vii. Shares and capital balance of Testator in M/s Central Service Station viii. Fire arms and weapons belonging to the testator
(a) One double barrel .12 bore .12 bore Webly Scot Gun no.25857 IA No.25736/2014 in TEST.CAS. 57/2014 Page 2 of 9
(b) One Rifle.256 bore No.1675599
(c) One Revolver Webly Scot Gun No.168/.32 bore
(d) One rifle 256 No.3121 ix. (a) Bank balance of the Testator
(b) National Savings Certificates of Testator
(c) Fixed Deposits of Testator with banks
(d) Fixed Deposits of Testator in Mutual Funds Schemes
(e) National Saving Schemes of the Testator
(f) Investments of the Testator
(g) Booking of plots in the name of Testator
(h) Jewellery of the Testator
(i) Cash in hand of the Testator
(j) Any other money due to the Testator from any other person whatsoever with accretions and other rights therein
(k) All other movable assets whatsoever existing or acquired by Testator in future alongwith all accretions and accumulations thereto.
3. It is alleged the petitioner has failed to give the correct valuation of the assets, both movable and immovable in the petition and hence the petition is bad and needs to be dismissed.
4. It is also alleged in para No.8 of the petition the petitioner has referred only to property No.71, Sunder Nagar, New Delhi, but in prayer has asked for probate and letter of administration with Will annexed for entire nine properties as mentioned in the Will.
5. It is submitted the valuation report is given only for property No.71, Sunder Nagar, New Delhi and not for any other movable and immovable assets (even at Shimla).
IA No.25736/2014 in TEST.CAS. 57/2014 Page 3 of 96. The learned counsel for respondent No.4/applicant has relied upon following provisions of the Indian Succession Act, 1925 viz.:-
"276. Petition for probate-(1) Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating--
(a) to (c)xxx xxx
(d) the amount of assets which are likely to come to the petitioner‟s hands, and
(e) xxx xxx.
263 Revocation or annulment for just cause. --The grant of probate or letters of administration may be revoked or annulled for just cause. Explanation. --Just cause shall be deemed to exist where--
(a) xxx xxx; or
(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or
(c) to (e) xxx xxx.
283. Powers of District Judge.--
(1) (2) xxx xxx.
(3) Where any portion of the assets has been stated by the petitioner to be situate within the jurisdiction of a District Judge in another State, the District Judge issuing the same shall cause a copy of the citation to be sent to such other District Judge, who shall publish the same in the same manner as if it were a citation issued by himself, and shall certify such publication to the District Judge who issued the citation."
7. It is argued Section 276(1) (d) has to be read with Section 19 (I) of the Court Fees Act. Section 19(I) read as under:-
"19-I. Payment of Court-fees in respect of probates and letters of administration.--
(1) No order entitling the petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until the petitioner has filed in the Court a valuation of the property in the form set forth in the Third Schedule, and the Court is satisfied that the fee mentioned in No.11 of the First Schedule has been paid on such valuation. (2) The grant of probate or letters of administration shall not be delayed by reason of any motion made by the Collector under section 19H, sub-section (4)."IA No.25736/2014 in TEST.CAS. 57/2014 Page 4 of 9
8. Chapter 29 of The Delhi High Court (Original Side) Rules relate to testamentary cases and it notes:-
"1. Application for grant of probate or letters of administration.-No application for grant of probate or letters of administration will be received by the Registry, except where the Administrator General is the applicant, unless: --
(i) it is accompanied by an affidavit of valuation as required by Section 19-1 of the Court Fees Act, 1870, prepared strictly in the form set forth in the Third Schedule thereof; and
(ii) is also accompanied by an affidavit of proof or certificate of death."
9. Further it is alleged the probate petition needs to be verified per Section 281 of the Indian Succession Act by at least one of the witnesses to the Will in the manner and to the following effect viz.:-
"I (C.D.), one of the witnesses to the last Will and testament of the testator mentioned in the above petition, declare that I was present and saw the said testator affix his signature (or mark) thereto (or that the said testator acknowledged the writing annexed to the above petition to be his last Will and testament in my presence)."
10. The learned counsel for the respondent no.4 also relied upon Bhai Khubchand vs Smt.Motibai AIR 1936 Sind 150 wherein the Court notes:-
"Moreover when we refer to S. 19I, Court-fees Act, and to Sch. 3, it is perfectly clear that what is required is a full and honest account of all the property of the estate. It is true that the words used are "valuation of the property in the form set forth in Sch. 3," but we think that there can be no doubt that the word "property" is used in its inclusive and not in its exclusive sense, and that what is meant is that what shall be shown is all the property of the deceased."
And Rangachari vs Ananthalakshmi Rangachari 1957 (1) ILR Mad 385 wherein the Court notes:-
"Normally when Letters of Administration are applied or, as envisaged by the provisions of Chapter II of the Indian Succession Act, the entirety of the assets of the deceased should be disclosed in the affidavit or assets which will count for valuation for purpose of Court-fee. The rule has exceptions as provided by sections 254 to 257. The real exception applicable to this case is what is contained in section 255. Where it is a case of joint account in a bank and the amount is payable to either or survivor the nature of the case requires IA No.25736/2014 in TEST.CAS. 57/2014 Page 5 of 9 that it is treated as an exception to the general rule in as much as the account was joint and the standing to its credit was payable to either or survivor, the appellant as between the bank and herself, would be entitled to draw the same in her own right. On the view, it may not even be necessary to obtain Letters of Administration for, there is in that case little to administer and her right to draw the amount can be independently of the Will. In the case of payment of the death benefit it was payable to the wife and her right to draw the money as death benefit would likewise arise even independent by of the Will. That being so, this is a case where Letters of Administration are totally unnecessary for the appellant so far as the above two items are concerned."
11. Thus it is argued as the petitioner has failed to disclose the list of assets, its valuation etc. and since there is no verification of attesting witnesses at the foot of the petition and since despite moving various applications, neither the petitioner nor respondents No.2 or 3 disclose relevant information, the petition be dismissed.
12. Heard.
13. What is relevant in a probate petition is to see if there exist a valid Will executed by the testator in a sound state of health. The entire premise of the argument of the learned counsel for the applicant is as if the Court has already granted the probate or the letter of administration and the petitioner has failed to file the requisite court fees upon it. The decisions cited by the learned counsel for the applicant are not applicable to the facts of this case as in the cited cases the probate or letter of administration was already granted; whereas in the present case the trial has not yet commenced.
14. Rather in Bhai Khubchand (supra) the Court noted:-
"Under S. 19I, Court-fees Act, no order entitling the petitioner to the grant of probate or letters of administration shall be made until the petitioner has filed in Court a valuation of the property in the prescribed form and the proper court-fee has IA No.25736/2014 in TEST.CAS. 57/2014 Page 6 of 9 been paid. But it does not follow that because she has not made a petition in proper form, the previous proceedings must be deemed a nullity. The Judge may not pass an order granting probate or letters of administration until the application has been made in proper form and fulfills the requirements of the law. But it does not follow therefrom that the Judge cannot give the petitioner an opportunity to make good any defects in her petition and cannot then proceed to make a grant upon the petition, the defects of which have been removed."
15. In Re Anita Rewal 1980 RLR 245 this Court noted :-
"When Probate is granted only copy of the Will is to be annexed to it. Schedule of property or affidavit in respect of valuation required for Court fees do not form part of Probate and should not be annexed."
16. In Rajesh Sharma vs Krishan Kumar Sharma 2014 (142) DRJ 660 this Court noted:-
"14. Taking the last objection first in this regard, I would seek to refer to the relevant observations of the probate court and which are contained in paras 15 and 16 of the impugned judgment, and which read as under :
„15. 3. Whether the petition is not maintainable for the reasons, stated in the preliminary objection No.1? OPR It has been urged by the learned Counsel for the respondent No. 2 that the petitioner has not given the details of the amount of the assets, which were likely to come to the petitioner's hand as required under Section 276 of the Act. The valuation of the property has also not been correctly made and therefore, the petition is not maintainable.
16. I have perused the Will Ex.PW1/1. It does make mention that the deceased had also bequeathed gold ornaments and bank deposits, which may be held single or jointly with any person, whatsoever. The petitioner was not cross-examined as to the other properties i.e. jewellery etc., left by the deceased. In any event when the petitioner is seeking probate in respect of immovable property, the petition cannot be dismissed simply on the ground that the amount of assets, which are likely to come to the hands of the petitioners, have not been given.
Similarly tentative valuation of the property is to be done at the time of filing the petition and the final valuation is to be obtained at IA No.25736/2014 in TEST.CAS. 57/2014 Page 7 of 9 the time of grant of probate or letters of administration, if any, by the Collector of the area. It cannot be said that the petition is not maintainable. This is decided accordingly against the respondent No. 2."
15. I completely agree with the observations of the probate court because final valuation is obtained at the time of grant of letters of administration and merely because the Will does not contain the details of valuation cannot mean that probate cannot be granted on such a Will. This objection urged on behalf of the respondent/objector is, therefore, rejected."
17. In K M Varghese and Others vs K M Oommen and Others AIR 1994 Kerala 85 the Court notes:-
"9. He submitted that the petition filed by the plaintiffs without scheduling the entire properties included in the Will is not maintainable and on that short ground, the plaint-tiffs (petitioners) are not entitled to Letters of Administration.
10. xxx xxx
11. Section 278 of the Act deals with petition for letters of administration. This section lays down the requirements of a petition for letters of administration as contrasted with, and distinguished from, an application for probate or letters of administration with the Will annexed, dealt with in Section
276. In this section also Clause (d) provides that the application should contain a statement regarding the amount of assets which are likely to come to the petitioner's hands. From the statutory provisions -- Sections 276 and 278 of the Act, it is clear that there is no mandatory direction that the petitioner for letters of administration should contain the entire assets scheduled in the will. The sections also do not provide any provision for dismissal of the application for the reason that the entire assets shown in the will are not scheduled in the petition."
18. Considering the law cited above the question of valuation of assets and payment of the court fee shall arise only once the Will is held to be valid and the Court directs the grant of probate or letter of administration with Will annexed and the final valuation shall be done by the Collector of the area at that time.
19. Further qua verification per Section 281 of the Indian Succession Act the petitioner has filed the declarations of the attesting witnesses at pages No.12 to 14 of the documents which contain exact language of IA No.25736/2014 in TEST.CAS. 57/2014 Page 8 of 9 Section 281 of the Indian Succession Act and hence there is no concealment on the part of the petitioner. The declarations so made by the attesting witnesses are in consonance with Section 281 of the Indian Succession Act.
20. Thus, the application under Section 151 CPC is bereft of any merit and is accordingly dismissed. The applicant/ respondent No.4 is however at liberty to raise these objections during trial. No order as to costs.
TEST.CAS. 57/2014, IA Nos.25733-35/2014
21. List on 23.08.2018.
YOGESH KHANNA, J MAY 08, 2018 M IA No.25736/2014 in TEST.CAS. 57/2014 Page 9 of 9