Delhi District Court
Motia Kumari (Deceased) vs State on 26 July, 2022
IN THE COURT OF SH. SANJEEV AGGARWAL,
ADDITIONAL DISTRICT JUDGE-02 (WEST), DELHI
PC No. 42/2018
CNR NO. DLWT01-006176-2018
Motia Kumari (Deceased)
Through LRs Sh. Gulshan Kumar
E-3, IIIrd Floor, Block-E
Naraina Vihar, New Delhi
... Petitioner
Versus
1. State
2. Meena Kumar Kapoor
W/o. Late Sh. Naresh Kumar
ED-119, Rajouri Garden
New Delhi.
... Respondents
Date of institution of petition : 07.07.2018
Date of reserving judgment : 08.07.2022
Date of pronouncement : 26.07.2022
JUDGMENT
1. Vide this judgment, I shall dispose off the following issue no. 3 framed vide order dated 01.11.2018, which was treated as preliminary issue vide order dated 11.10.2021 :
3. Whether the applicants have no locus standi to file the PC No. 42/2018 (CNR No. DLWT01-006176-2018) Page No. 1 of 16 present revocation petition ? OPR.
2. Brief facts necessary for disposal of the above preliminary issue are as under :
i) An application u/S. 263 of the Indian Succession Act (hereinafter referred to as Act) had been filed on behalf of applicants i.e. one Sh. Jatin Kohli and Ms. Malika Chopra for revocation and annulment of the letter of administration of the forged and fabricated Will dated 06.11.2008, as stated by them.
ii) It is further stated that one Naresh Kumar was the real brother of Ms. Shakuntala Devi, daughter of Late Sh. S. Teja Singh, who was member of the DMC Staff Cooperative House Building Society Ltd. She was alloted a plot bearing no. 46 in the Revenue Estate of Village Rajpur Chavni, which is known as Ishwar Colony, Bhamashah Road, Delhi-110009 measuring 206 sq. yards. and a perpetual sub-lease deed dated 17.01.1977, was executed in her favour in respect of the allotted plot.
iii) She also constructed house on the said plot and continued to be in possession of the said plot uptil her death i.e. 02.05.1989. The said Shakuntala Devi had also informed the above society that her brother Naresh Kumar shall be her nominee in respect of the above property and therefore, the said Naresh Kumar was nominee of the deceased and after her death, he became owner of the aforesaid property.
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iv) It is also alleged that the said Naresh Kumar had been making the payment of the ground rent to the DDA and further one Smt. Motia wife of Sh. Gulshan Kumar also relinquished her share in above property vide relinquishment deed dated 12.10.2006 in favour of her brother Naresh Kumar.
v) It is stated that Naresh Kumar was the recorded owner of the said property and in pursuance of the same, he entered into one agreement to sell with one Vijay Kumar Mittal, S/o. Late Sh. B.M. Mittal vide registered agreement dated 08.12.2006, whereby aforesaid Naresh Kumar agreed to sell the aforesaid property to Sh. Vijay Kumar Mittal. The said agreement was registered, as mentioned in para 10 of the present petition and he also acknowledged a receipt, acknowledging the payment of Rs. 14 Lakhs and also executed other documents including indemnity bond, GPA etc. all dated 08.12.2006 in favour of Vijay Kumar Mittal.
vi) It is stated that above said Vijay Kumar Mittal acquired right and interest in the said property by virtue of documents executed by Naresh Kumar. After execution of the documents, Naresh Kumar was left with no right, title or interest in the said property. Therefore, since the said Naresh Kumar had sold the said property in terms of the documents referred above, he had no right to execute any Will in favour of any person and he had also not executed any Will or documents in favour of the petitioner or Smt. Meena Kapoor.
vii) It is stated that the said Ms. Meena Kapoor also PC No. 42/2018 (CNR No. DLWT01-006176-2018) Page No. 3 of 16 acknowledged and admitted vide declaration deed dated 23.12.2010 that she has no right in the property and Sh. Vijay Kumar Mittal is the owner. She also executed receipt, affidavit and SPA dated 23.12.2010.
viii) It is stated that the said Vijay Mittal during his life time had parted half of the property in favour of the applicants by virtue of the documents dated 17.01.2011 vide GPA, registered agreement to sell, receipt, Will etc., therefore, the applicants have interest in the suit property. It is stated that the Will dated 06.11.2008 propounded by the petitioner is forged and no such Will was executed by Sh. Naresh Kumar, deceased in favour of the petitioner or Meena Kapoor and once Naresh Kumar executed documents, received the consideration amount, he left with no right, title or interest and therefore, he was not competent to execute the Will in favour of Vijay Mittal, which fact was also acknowledged by Ms. Meena Kapoor.
ix) It is also pertinent to mention herein that from the perusal of the other documents on the record, it appears that one Motia Kumari, deceased through her husband Gulshan Kumar had come to the Court with regard to the Will dated 06.11.2008, allegedly executed by deceased Naresh Kumar by virtue of which deceased Naresh Kumar allegedly bequeathed 25 sq. yards of rear portion of property no. 46, Ishwar Colony, Delhi to one Meena Kapoor, his widow and balance entire to his sister Motia Kumari.
x) It is therefore stated that the letter of administration has been obtained by playing fraud on the Court on the basis of forged PC No. 42/2018 (CNR No. DLWT01-006176-2018) Page No. 4 of 16 Will and same is void-ab-inito and same is liable to be set aside. It is further stated that no notice was issued to the applicants and it is settled law that all the persons who have an interest in the estate of the deceased are entitled to enter caveat and oppose the grant are entitled to apply for the revocation of the probate or letter of administration.
xi) It is further stated that the applicants were never made party to the said probate petition and the order was obtained by the petitioner in collusion with the objectors and therefore, the applicant is entitled for revocation and annulment of letter of administration granted vide order dated 12.12.2017 for just cause, as the same have been obtained by fraud which vitiates everything. Therefore, it is prayed that the order for grant of letter of administration be revoked / cancelled, which was granted vide order dated 12.12.2017 and the applicant be granted permission to contest the said case.
3. Ld. Counsel for the applicants has relied upon the following judgment(s) in support of his contentions :
a) Ram Gopal Vs. Smt. Naraini Bai, AIR 2005 Rajasthan 264;
b) Elizabeth Antony Vs. Michel Charles John AIR 1990 SC 1576;
c) In re : Late Rajo Singh Ramautar Singh alias Ganesh Shankar AIR 1995 PATNA 122;
d) Promode Kumar Roy Vs. Sephalika Dutta, AIR 1957 CALCUTTA 631;
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e) Nabin Chandra Guha VS. Nibaran Chandra Biswas and others AIR 1932 CALCUTTA 734;
f) Dinabandhu Roy Brajaraj Saha, Firm Vs. Sarala Sundari Dassya AIR 1940 CALCUTTA 296;
g) Madhvi Amma Bhawani Amma and others VS. Kunjikutty Pillai Meenakshi Pillai and others, AIR 2000 SC 2301;
h) Ramji Gupta & Anr. Vs. Gopi Krishan Agrawal (D) & ors., AIR 2013 SC 3099;
i) Banwarilal Shriniwas Vs. Kumari Kusum Bai and others, AIR 1973 MP 69.
4. Reply to the said application on behalf of one Gulshan Kumar, the husband of Motia Devi has been filed, in which he has taken number of objections, however, preliminary objection nos. 2 & 3 are reproduced as under :
2. That the application under reply is not maintainable and the same is gross abuse of process of law as well as of the Hon'ble Court. The applicants claimed to be the successor in interest of Shri Vijay Kumar Mittal in respect of one half undivided portion of the property No. 46, Ishwar Colony, Delhi, whereas an application filed by Shri Vineet Mittal S/o. Late Shri Vijay Kumar Mittal under Order 1 Rule 10 read with Section 151 CPC has already been dismissed by this Hon'ble Court vide order dated 1-6-2017 in PC No. PC No. 42/2018 (CNR No. DLWT01-006176-2018) Page No. 6 of 16 38/2008 (New PC No. 16088/16) and CRP No. 215 of 2017 filed by Shri Vineet Mittal against the said Order has also been dismissed by the Hon'ble High Court of Delhi vide order dated 07-11-2017. Once the said application filed by Shri Vineet Mittal S/o. Late Shri Vijay Kumar Mittal for the entire property has been dismissed and the said order has attained finality, the present applicant claiming themselves to be the successor in interest of Shri Vijay Kumar Mittal (since deceased) is bound by the said orders, which operates as resjudicata or at least on the principles of resjudicata, cannot file and maintain the present application. Further the said Shri Vineet Mittal ever stated and disclosed about the alleged transfer of one half property by his late father, Shri Vijay Kumar Mittal, in favour of the present applicants, as now claimed by the applicants. Thus, no relief can be granted to the applicants and the application under reply is liable to be dismissed.
3. That the application under reply is not maintainable and the same is gross abuse of process of law as well as of the Hon'ble Court. The applicants claimed to be the successor in interest of late Shri Vijay Kumar Mittal in respect of one half undivided portion of the property No. 46, Ishwar Colony, Delhi, whereas a PC No. 42/2018 (CNR No. DLWT01-006176-2018) Page No. 7 of 16 similar application filed by Shri Vineet Mittal S/o. Late Shri Vijay Kumar Mittal under Section 263 Indian Succession Act has already been dismissed by this Hon'ble Court vide order dated 04-12-2017 in PC No. 38/2008 (New PC No. 16088/16) after the dismissal of CRP No. 215 of 2017 filed by Shri Vineet Mittal against the Order dated 01-06-2017 has also been dismissed by the Hon'ble High Court of Delhi vide order dated 07-
11-2017. Once an application under Section 263 Indian Succession Act filed by Shri Vineet Mittal S/o. Late Shri Vijay Kumar Mittal has been dismissed and the said order has attained finality, the present applicants, claiming themselves to be the successor-in-interest of late Shri Vijay Kumar Mittal, are bound by the said order and the present application under reply is barred under law. Thus, the applicants cannot file and maintain the present application. Further the present application under reply filed by the applicants is basically a copy of the said earlier application filed by Shri Vineet Mittal under Section 263 Indian Succession Act, and dismissed by this Hon'ble Court, as aforesaid. Thus no relief can be granted to the applicants and the application under reply is liable to be dismissed.
5. The other averments made in the application in question have PC No. 42/2018 (CNR No. DLWT01-006176-2018) Page No. 8 of 16 been vehemently denied and it is stated that the same is gross abuse of process of law and that the applicants have claimed the ownership of one half portion of the undivided property, but are silent regarding other half of the property for the reasons best known to them. It is also stated that when Vijay Kumar Mittal had no right, title or interest in the property itself, he could not transfer any right in favour of the applicants and no relief can be given to the applicants, as no cause of action has accrued in their favour.
6. It is stated that the notice of the probate petition was published to the general public at large, but the applicants never appeared nor filed any objections in respect of the probate petition, but waited for the grant of probate / letter of administration in favour of the present applicants and then approached the Court with malafide intention. It is denied that there was any fraud and that the Will dated 06.11.2008 was fabricated and the letter of administration was granted in lieu of forged Will. Therefore, it is stated that the applicants have no right / locus standi or justification in filing or maintaining the present petition and same is liable to be dismissed with special costs.
7. I have heard Ld. Counsel for the applicants Sh. Jatin Kohli and Ms. Malika Chopra, Ld. Counsel for the non-applicant Sh Gulshan Kumar and perused the record. I have also gone through the brief submissions filed by Ld. Counsel for the applicants.
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8. Vide order dated 01.11.2018, following issues were framed :
1. Whether the Letter of Administration granted in terms of judgment dated 12.12.2017 in favour of the petitioner respondent Motia Kumari through LRs in respect of the Will dated 06.11.2008is liable to be revoked, as prayed for ? OPA.
2. Whether the letter of administration has been sought by playing fraud upon the court? OPA.
3. Whether the applicants have no locus standi to file the present revocation petition? OPR.
4. Whether the present revocation petition is liable to be dismissed in view of the objections taken by respondent /non-applicant / OPR.
5. Relief.
Vide detailed order dated 11.10.2021, the above Issue No. 3 was treated as preliminary issue, which is under consideration by way of present order.
9. Earlier an application u/O 1 R 10 CPC r/w Section 151 CPC was filed on behalf of one Sh. Vineet Mittal, who was the legal heir of Sh. Vijay Kumar Mittal, the predecessor in interest of the applicants, who claimed to have purchased the half share in the property in question from said Sh. Vijay Kumar Mittal vide documents dated 17.01.2011 vide GPA, PC No. 42/2018 (CNR No. DLWT01-006176-2018) Page No. 10 of 16 Agreement to Sell etc. as mentioned in detail above. The said application moved by said Sh. Vijay Kumar Mittal was dismissed vide detailed order dated 01.06.2017, the relevant observations of the Ld. Predecessor of this Court are reproduced as under :
23. The present petition filed by Smt. Motia Kumari, now deceased, represented through her husband Gulshan Kumar with regard to the will dated 6.11.2008 of deceased Naresh Kumar, by virtue of this Will deceased Naresh Kumar bequeathed 25 Sq.
Yards of rear portion of property bearing No. 46, Ishwar Colony, Delhi to respondent no. 2 Smt. Meena Kappor, his Widow and balance entire to the petitioner, his sister, Motia Kumari. The petition has been contested by widow Meena Kapoor and it is at the stage of final arguments.
24. Now one Sh. Vineet Mittal, claiming to be L.R of late Sh. Vijay Mittal wish to become a party. As per averment in the applicantion deceased Vijay Mittal entered into an agreement to sell with deceased Naresh Kumar on 8.12.2006 and filed photocopy of the said agreement to sell, receipt, payment through three cheques of Rs. 5 lacs, 7 lacs and 2 lacs and Indemnity Bond. He further filed a declaration by Widow Meena Kapoor in favour of Sh. Vijay Kumar, HUF through Karta dated 23.12.2010 and receipt. As per averment a settlement arrived between late Vijay Mittal and Meena Kapoor thereby Meena Kapoor received Rs. 15 lacs on 23.12.2010.
25. The applicant further disclosed the filing of suit by deceased Naresh Kumar in the year 2002 against one Charanjeet Singh, Rajender Kumar etc. An FIR was also registered bearing no. 14/05 in Police Station, Model Town and the other litigations have PC No. 42/2018 (CNR No. DLWT01-006176-2018) Page No. 11 of 16 been mentioned pending before different courts. However, it is not explained by the applicant that during his life time of Vijay Kumar Mittal and Naresh Kumar, why his father did not take any action to ascertain his right as per the alleged documents in his favour.
26. In my considered opinion the applicant, the L.R of Vijay Kumar Mittal has not inherited any rights qua the subject matter of Will of deceased Naresh Kumar i.e property bearing no. 46, Ishwar Colony, Delhi- 110009. His father had entered into an agreement with Meena Kapoor who is not having any rights qua the above said property. Above circumstances would give rise independent cause of action, if any, to ascertain legal rights by the applicant, son of late Vijay Kumar Mittal. It is well settled law that Probate court has no jurisdiction to decided the right, title, interest and ownership of the parties. The Probate court shall determine the genuineness and legality of the Will in question of Naresh Kumar, therefore, applicant is not necessary party before the Probate Court.
27. On the basis of above observation and discussion the application under order 1 rule 10 CPC of applicant Vineet Mittal is dismissed.
10. Thereafter, said Sh. Vineet Mittal, son of afore said Sh. Vijay Kumar Mittal preferred a revision petition in the Hon'ble High Court vide C.R.P. No. 215/2017 & CM No. 35456/2017 and vide order dated 07.11.2017, the Hon'ble High Court had dismissed the said petition, the relevant observations of the Hon'ble High Court are reproduced as under :
PC No. 42/2018 (CNR No. DLWT01-006176-2018) Page No. 12 of 16 "5. I have still enquired from the counsel for the petitioner, as to how the same makes the petitioner a necessary or a proper party in the Probate Case. The petitioner is admittedly an agreement purchaser and either has to claim specific performance of the agreement to sell and if wants to secure title instead on the basis of Will stated to have been executed by Naresh Kumar, has to seek probate of the said Will and which has also not been done.
6. The counsel for the petitioner has contended that the aforesaid questions can be decided in the Civil Suit aforesaid in which both the petitioner and Naresh Kumar have applied for impleadment.
7. I am afraid not. The question for adjudication in the Civil Suit aforesaid is the challenge by Naresh Kumar to the document claimed to have been created by other persons with respect to the property in their favour. The inter se disputes between the petitioner on the one hand and the respondent No.2 Motia Kumari on the other hand cannot be the subject matter of the said Civil Suit.
8. Moreover, even if the respondent No.2 Motia Kumari succeeds in obtaining probate, if the petitioner is entitled to specific performance of the agreement of sale in favour of father of the petitioner, the petitioner can still enforce the said agreement against the respondent No.2 Motia Kumar.
9. As far as the right claimed by the petitioner under the document claimed to be the Will of Naresh Kumar is concerned, though the counsel for the petitioner has argued that in Delhi, it is not essential to obtain probate of a Will to claim a right thereunder but once the said document is disputed and/or the right claimed thereunder is disputed, the said right can be asserted either by seeking probate or by proving the Will in other appropriate PC No. 42/2018 (CNR No. DLWT01-006176-2018) Page No. 13 of 16 proceedings. The agreement to sell with respect to a property does not create any interest in the property and merely gives a right of specific performance.
10. For this reason also, it cannot be said that the petitioner, as an agreement purchaser, has a caveatable interest to become a party to the Probate Case, from which this petition arises.
11. There is thus no merit in the petition.
12. Dismissed."
11. Further the relevant law in this regard is discussed as under :
In Ishwardeo Narain Singh Vs. Smt. Kamta Devi AIR 1954 SC 280 & Chiranjilal Shrilal Goanka Vs. Jasjit Singh (1993) 2 SCC 507, it has been held as under :
Probate court only decides the genuineness, legality and validity of the Will and has no concern with the title and ownership of the deceased. The question with which the court is concerned as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Even Court has no to see the very existence of the property.
Further in Talat Parveen Naqvi Vs. DDA 163 (2009) DLT 622, it has been held as under :
No issue should be framed or evidence gone into in order to determine as to how deceased became owner of the property.
Further in Ajay Malhotra Vs. State 260 (2019) DLT 488, it PC No. 42/2018 (CNR No. DLWT01-006176-2018) Page No. 14 of 16 has been held as under :
QUESTION OF OWNERSHIP / TITLE : Court has no jurisdiction to go into question of title of the deceased in respect of properties mentioned in the Will. Question whether the title of the properties was benami purchased by the deceased in the name of some relative also cannot be considered. Similarly, the dispute whether it was self acquired property of the deceased or joint ancestral property also is outside of purview of the probate court.
Further in Papoo Vs. Kuruvilla 1994 SCC Online Ker 385, it has been held as under :
Who was/is in possession of the property of the deceased is also not to be considered in such probate/ LOA proceedings.
12. Thus, in view of the aforesaid position of law, any person coming forward seeking impleadment in such cases on the basis of ownership, title or possessory rights through application under Order 1 Rule 10 CPC is not to be made party and application is liable to be rejected, as such person can establish his title through civil case.
The proposition of law laid down in the afore judgment(s) (supra) relied upon by Ld. Counsel for the applicants in para (3) is not in dispute, however, in my respectful view, the same are not applicable to the peculiar facts and circumstances of the present case.
13. Therefore, in view of the afore going discussion, since the applicants cannot claim better rights or title than their predecessor-in- interest Sh. Vijay Kumar Mittal, through whom they are claiming all their rights, as already discussed, an similar application moved by his son namely Sh. Vineet Mittal has already been dismissed by Ld. Predecessor PC No. 42/2018 (CNR No. DLWT01-006176-2018) Page No. 15 of 16 of this Court vide order dated 01.06.2017 and the appeal / revision against the same has also been dismissed by the Hon'ble High Court vide order dated 07.11.2017, reproduced above, which order has attained finality. Since the present applicants are claiming their rights through above mentioned Sh. Vijay Kumar Mittal, they cannot have better rights than he had. As a consequence, the applicants herein also have no locus standi for moving the present application for revocation / annulment of letter of administration granted vide order dated 12.12.2017.
14. In view of the aforesaid discussions, the Issue No. 3 is decided in favour of the non-applicant(s) and against the applicants, which was treated as preliminary issue vide order dated 11.10.2021. As a consequence, the present application filed on behalf of the applicants namely Sh. Jatin Kohli and Ms. Malika Chopra u/S. 263 of Indian Succession Act for revocation / annulment of letter of administration granted vide order dated 12.12.2017 is not maintainable, for the detailed reasons above, as they have no locus standi to do so. Same stands dismissed. Parties to bear their own costs.
File be consigned to record room.
Announced in the open court today on 26.07.2022.
(Sanjeev Aggarwal) Addl. District Judge-02 (West) Tis Hazari Courts, Delhi PC No. 42/2018 (CNR No. DLWT01-006176-2018) Page No. 16 of 16