Delhi District Court
Lt. Col. Mahendri Kumari vs Shri Manish Kumar on 9 March, 2009
-: 1 :-
IN THE COURT OF SHRI V.P. VAISH, ADDL. DISTRICT JUDGE-07
(CENTRAL), TIS HAZARI COURTS, DELHI
M.P.C. No. 20 / 2007
Date of institution: 20.09.2007
Judgment reserved on: 02.03.2009
Judgment pronounced on: 09.03.2009
Lt. Col. Mahendri Kumari
Wife of late Rajender Kumar,
At present residing at
K-5A, Saket, New Delhi
& posted at Military Hospital,
Jammu .........Applicant / Petitioner
Versus
1. Shri Manish Kumar,
S/o of Shri Virender Kumar
R/o 38/19/IX, Kadambari, Rohini,
Delhi
2. Shri Anurag,
S/o of Shri Virender Kumar
R/o 38/19/IX, Kadambari, Rohini,
Delhi
3. State
4. Shri Virender Kumar,
son of late Ranbir Singh,
R/o 38/19/IX, Kadambari, Rohini,
Delhi ......... Respondents
Mahendri Kumari Vs. Manish Kumar
-: 2 :-
Petition under Section 263 of the Indian Succession Act,
1925 for revocation of Probate / Letters of Administration in
PC 452/06 titled as Manish & Another Vs. State Etc.
decided on 29.01.2007.
---------------------------
JUDGMENT
This is a petition under Section 263 of the Indian Succession Act, 1925 for revocation of Probate / Letters of Administration granted on 29.01.2007 in Probate Case No. 452/06.
2. The brief facts giving rise to the present petition are that a petition under Section 276 of the Indian Succession Act was filed by no applicants namely Shri Manish Kumar and Anurag for grant of probate / Letters of Administration in respect of Will dated 01.08.1995 purported to have been executed by deceased Shri Rajinder Kumar son of Shri Ranvir Singh. Citation was issued in the newspaper 'Rashtriya Sahara' but no one appeared from the general public to file any objection. The applicant Smt. Mahenderi Kumari was served by publication in newspaper 'Hindustan (Hindi)'. My learned predecessor, vide Judgment dated 29.01.2007 granted Letters of Administration with copy of Will Ex.Pw-3/A annexed with the petition in favour of the non applicants, subject to completion of formalities such as administration bond with surety and requisite court fee.
3. The case of the applicant Smt. Mahenderi Kumari is that she is widow of the deceased Shri Rajinder Kumar, she is employed as Lt. Col. in Military Hospital, Jammu since 14.02.2007 and prior to that Mahendri Kumari Vs. Manish Kumar -: 3 :- she was posted at Military Hospital, Meerut. She was married with the deceased Rajinder Kumar on 18.11.1991, according to Hindu rites and ceremonies, the marriage was duly registered at the office of Registrar of Marriages, Delhi at Sr. No. 2213 dated 27.11.1991. Photocopy of marriage certificate has been filed as Annexure-1. The deceased husband of the applicant and his family members started harassing and torturing the applicant. The deceased husband of applicant filed a petition for divorce being HMA No. 511 of 1995 titled as "Rajinder Kumar Vs. Capt. Mrs. Mahendri Kumari" and the summons of said petition were sent at the parental address as well as official address of applicant. Photocopies of summons are annexed as Annexure-2. The said petition was dismissed in default by the Court of Shri Rajnish Bhatnagar, learned Additional District Judge, Delhi vide order dated 15.02.2006. Certified copy of said order is annexed as Annexure-3. The applicant lodged a complaint before Crime Against Woman Cell, Hauz Khas, New Delhi against deceased husband in the year 1995. The various addresses of the applicant from time to time was mentioned in the said proceedings.
4. It is averred by the applicant that she used to stay at her parental house situated at K5A, Saket, New Delhi during her visit to Delhi. The applicant came to Delhi at her parental house during annual vacations on 29.06.2007, she was shocked to know that her husband Rajinder Kumar expired on 11.12.2005. It is also stated that the neither the applicant nor her brother who lives at Saket was informed about the death of her husband Rajinder Kumar. Thereafter, Mahendri Kumari Vs. Manish Kumar -: 4 :- the applicant wrote a letter dated 29.08.2007 to the President, Kadambari Co-operative Group Housing Society, Rohini, which was received in their office on 16.09.2007 and requested for transfer of the flat No. 38 in her name as she is the legally wedded wife of Rajinder Kumar and she was the only person entitled to be substituted in his place. After receiving the said letter President of the Society called a meeting on 16.09.2007 wherein the applicant and Shri Anurag and his mother Smt. Rajrani along with some relations were present. The applicant came to know that said Shri Manish and Anurag had already filed an application for mutation before the said Society along with order of Probate dated 29.01.2007 and other papers. Shri Anurag supplied the copy of said papers at the request of the President of the Society. Thereafter, the applicant inspected the file from Record Room on 19.09.2007.
5. It is also averred by the applicant that the order of Probate is defective and was obtained fraudulently by making false suggestions and concealing the material facts. It is also stated that the applicant was not impleaded as party by stating that she left the deceased since last 12-13 years and she has no address or they have no knowledge about her existence. The non applicants filed photocopy of ration card which indicates the name of the deceased and the non applicants, deceased was living with his brother Shri Virender Kumar. It is stated that Shri Virender Kumar including the non applicants were throughout aware about the various addresses of the applicant and at the time of filing the petition for Probate, non applicants knew that applicant was Mahendri Kumari Vs. Manish Kumar -: 5 :- posted as Lt. Col. in Military Hospital, Jammu. The applicant is employed under the Ministry of Defence and anybody could know the whereabouts of any person working in the Army from the Army Headquarters as well as from Army Medical Branch. The non applicants and their family members knew that applicant is working in Army Medical Hospital, even at the time of marriage applicant was working at Army Medical Hospital. The non applicants wrongly mentioned in their petition and affidavit dated 22.09.2006 that the applicant Smt. Mahendri who is wife of the deceased left the house of the deceased since 12-13 years back without giving any information to anyone and Shri Manish Kumar was not aware about any address and present whereabouts of the wife of deceased and there is no possibility of her existence in present. It is also stated that on 16.1.2007, learned counsel for non applicants sought adjournment for impleading the brother of the deceased as party, thereafter an application under Order 1 Rule 10 CPC for impleading Shri Virender Kumar, brother of deceased was allowed vide order dated 25.01.2007. Thereafter, non applicants moved an application under Order 5 Rule 20 CPC for substituted service of the applicant, which was allowed on 19.10.2006 and no address of the applicant was mentioned. The non applicants with malafide intention gave the residential address of the applicant i.e. the place where the non applicants themselves were residing to the concerned office of newspaper and the publication indicates the residential address of the applicant as '38/19/IX, Kadambari, Rohini, Delhi'. On the representation of the non applicants, the publication of applicant was ordered. It is also stated that applicant came to know Mahendri Kumari Vs. Manish Kumar -: 6 :- about filing of Probate petition on 16.09.2007 and prior to that the applicant was not aware about the pendency of any proceedings of the present case.
6. The non applicants have contested the application by filing reply / on the ground interalia that the application is barred by limitation, the applicant has no locus standi to file the present application and this Court has no jurisdiction to entertain the present application. It is stated that the non applicants were not in touch with the applicant for the last 12-13 years and there was no question of informing the applicant regarding the death of Shri Rajinder Kumar. The applicant, Smt. Mahenderi left the deceased since 12-13 years and thereafter she never contacted the deceased as well as his other family members. The non applicants were not aware about any rank in Army or address of applicant. It is stated that the applicant wants to grab the property of the deceased. The non applicants had not concealed any material fact.
7. The applicant filed rejoinder to the reply filed by non applicants and denied the allegations made in the reply and reiterated the plea taken in the application.
8. On the pleadings of parties, my learned predecessor framed following issues on 26.11.2007:-
(1) Whether Letters of Administration with copy of Will Ex.Pw-
3/A annexed thereto issued in favour on non applicant pursuant to Mahendri Kumari Vs. Manish Kumar -: 7 :- judgment dated 29.01.2007 is liable to be revoked in view of the grounds mentioned in the application? Onus placed on applicant.
(2) Relief.
9. The applicant in support of her case, examined herself as AW-1. AW-1 Lt. Col. Mrs. Mahendri Kumari tendered her affidavit, which is Ex.P-1. By way of her affidavit she has deposed in terms of her application. She has stated that copy of marriage certificate is mark A, copy of summons in the petition for divorce is mark B and copy of letter dated 29.08.2007 is mark C. She has proved copy of order dated 15.02.2006 passed in the divorce petition as Ex.Pw-1/1. In her cross examination she has stated that she had been living separately from her husband since August 1995 as she joined Military Hospital, Agra on 01.08.1995. She did not have any ration card with her husband as she was in Army and not entitled to issuance of ration card. She lodged a case under Section 498-A/406 IPC against her husband, she came to flat at Rohini in October / November 1995 or January 1996 with Police for recovery of dowry articles. She admitted that she did not visit the flat at Rohini after January 1996. She came to know about the death of her husband in August-2007 when she came to Delhi on leave, then she went to hospital where from she came to know that her husband had expired due to massive heart attack. She did not go to the flat at Rohini to condone the death of her husband. She went to the house of her step mother in law which is in front of flat of non applicants. She had been visiting Delhi between August 1995 and June 2007 in connection with her case and also to meet her Mahendri Kumari Vs. Manish Kumar -: 8 :- parents. She admitted that she did not give her official address to the non applicants as her job is transferable. However, her parental address was known to the non applicants.
10. Thereafter, applicant closed her evidence vide statement dated 31.01.2008.
11. The non applicants examined as many as two witnesses. RW-1 Shri Anurag is one of the non applicants. He has tendered his affidavit, which is Ex.R-1. He has deposed in terms of his reply. In cross examination he stated that he did not know at the time of filing of petition that applicant was posted as Lt. Col. in Military Hospital, Jammu. He does not know that brother of the applicant is residing at Saket or the husband of applicant filed a divorce petition against her or whether any case or proceedings were pending before the Woman Cell. He did not make any effort to trace out the address of the applicant as at the time of filing of petition he was too young.
12. RW-2 Shri Virender Kumar is father of non applicant Anurag. He has tendered his affidavit, which is Ex.R-2. In his cross examination he stated that he attended all the ceremonies of marriage of his brother which were performed at Saket, Delhi at the parental house of applicant. He could not tell if brother of applicant is residing in said house. He did not go to Saket to verify the address of the applicant before filing the present petition. The applicant was doing job at the time of marriage but he does not know where she was working.
Mahendri Kumari Vs. Manish Kumar -: 9 :- He could not tell if his brother filed divorce petition against the applicant. But a case was pending between his brother and applicant. He admitted that applicant filed a complaint in Woman Cell against his brother and his wife accompanied his brother at Woman Cell once. He tried to locate address of the applicant before filing the petition from the relatives and friends of his brother. He did not make any enquiry from the Advocate or from the Court record of previous case pending between his brother and applicant, to locate address of the Advocate. He denied that at the time of filing of petition he was aware about Saket address and place of posting of applicant but he deliberately did not furnish the said address.
13. Thereafter, learned counsel for non applicant closed evidence on behalf of non applicants vide statement dated 14.08.2008.
14. I have heard Shri H.K. Sharma Advocate, learned counsel for applicant and Shri Anup Singh Advocate, learned counsel for non applicants. I have also carefully gone through material on record.
15. My finding on the above issues are as under:-
ISSUE NO.1
16. Ld counsel for the applicant urged that the applicant is widow of the deceased Rajinder Kumar, the non applicants intentionally did not furnish the address of applicant and filed affidavit of Shri Manish Kumar dated 22.09.2006 stating that he was not aware about any address and present whereabouts of the wife of deceased and there was no possibility of her existence.
Mahendri Kumari Vs. Manish Kumar -: 10 :-
16. Learned counsel for the applicant further submitted that the non applicants moved an application under Order 5 Rule 20 CPC for substituted service of the applicant, same was allowed vide order dated 19.10.2006 and the Court had not directed at which address the service by way of publication of applicant was to be effected. The non applicants with malafide intention gave their own address and the publication was effected at the residential address of the non applicants.
17. On the other hand learned counsel for non applicants submitted that the non applicants were not aware about the address of applicant, they were not aware about any petition for divorce between the applicant and the deceased. The applicant was served by publication in the newspaper but she failed to appear and contest the petition. The counsel for non applicants pointed out that the applicant has not filed any document to show that she did not come to Delhi before 29.06.2007. She has not filed any document in support of her plea that she visited to the flat at Rohini in October / November 1995. According to Mr. Anup Singh Advocate the applicant was not heard for the last 12-13 years and she did not inform any address to the non applicants.
18. I have carefully considered the rival submissions made by learned counsel for both the parties. Section 263 of the Indian Succession Act lays down the grounds under which the grant of probate / Letters of Administration may be revoked or annulled. It Mahendri Kumari Vs. Manish Kumar -: 11 :- reads as under:-
"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) the proceedings to obtain the grant were defective in substance; or
(b) the grant was obtained fraudulent by making a false suggestion, or by concealing from the Court something material to the case; or
(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or
(d) the grant has become useless and inoperative through circumstances; or
(e) the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect."
19. In the instant case, admittedly the applicant is the wife of the deceased Shri Rajinder Kumar. The non applicants, in para 5 of the petition, had not mentioned the name of the wife of deceased and her name was left blank. The address of wife of the deceased was not mentioned in the petition.
Mahendri Kumari Vs. Manish Kumar -: 12 :-
20. The applicant Smt. Mahendri Kumari who is wife of deceased Shri Rajinder Kumar was ordered to be served by publication in the newspaper 'Hindustan (Hindi)' vide order dated 19.10.2006 on an application under Order 5 Rule 20 CPC dated 22.09.2006. The said application was accompanied with affidavit of Shri Anurag. Para 2 of said application reads as under:-
" That in this case, Smt. Mahendri, W/o Late Shri Rajender Kumar, addressed above, has left her house since last 12-13 years back without giving any information to anyone. The applicants are not aware about any address and present whereabouts of Smt. Mahendri and there is no possibility of her existence in presence".
21. The non applicant / petitioner Shri Anurag while appearing as RW-1 has stated that he did not make any effort to trace out the address of the applicant at the time of filing of petition as he was too young. RW-2 Shri Virender Kumar, in his cross examination, has admitted that all the marriage ceremonies of the deceased were performed at the parental house of the applicant at Saket, Delhi. He has also stated that he did not go to Saket where the marriage was performed to verify the address of the applicant before filing the petition. He has also stated that applicant was doing the job at the time of marriage. He has admitted that a case was pending between his brother and the applicant and the applicant had filed a complaint in the Woman Cell against his brother, his wife accompanied his brother at Woman Cell once.
Mahendri Kumari Vs. Manish Kumar -: 13 :-
22. It is pertinent to mention here that the non applicant No.1 Shri Manish Kumar has not entered in the witness box. He was material witness as RW-1 Shri Anurag has deposed that he was too young at the time of filing of the petition.
23. The applicant has produced copy of order dated 15.02.2006, passed in HMA case No. 511/95 titled as Shri Rajinder Kumar Vs. Capt. (Mrs) Mahendri Kumari. The same shows that a petition under Section 13 of Hindu Marriage Act was filed which was dismissed in default on 15.02.2006. IN the said petition the address of applicant Smt. Mahendri Kumar is mentioned but the non applicants failed to mention said address in the petition for Probate.
24. It is settled principle of law that the person applying for revocation of probate or letter of administration must have an interest in the estate of the deceased, assuming that the deceased died intestate. In this regard reliance can be placed on a judgment in case titled as George Anthony Harris Vs. Millicent Spencer reported as AIR 1933 Bombay 370. In the said case it was held that a person applying for revocation for the grant must show that he has an interest in the alleged Will i.e. in the estate of the deceased disposed of by the alleged Will. There must be some interest and even the slightest interest is sufficient to apply for revocation.
25. The Division Bench of Hon'ble High Court of Calcutta in case Sadanand Pyne Vs. Harinam Sha and Anr. reported as AIR 1950 Mahendri Kumari Vs. Manish Kumar -: 14 :- Calcutta 179 has observed that in order to have the locus standi to apply for revocation of the probate, a person must have an interest in the estate of the deceased presuming he had died intestate.
26. In another case titled as Smt. Sima Rani Mohanty Vs. Pushpa Rani reported as AIR 1978 Calcutta 140, it was held that any interest, however, slight and even the bare possibility of an interest is sufficient to entitle a person to make an application for revocation.
27. It is admitted case of both the parties that the applicant Smt. Mahendri Kumari is widow of deceased Shri Rajinder Kumar. It has not been disputed by the non applicants that had the deceased Shri Rajinder Kumar died intestate, the applicant would have an interest in the property of the deceased. The applicant is Class-I legal heir of the deceased, under the Hindu Succession Act.
28. In view of the foregoing discussion, there is no escape from the conclusion that the applicant was having interest in the estate of the deceased Shri Rajinder Kumar. She would have succeeded to the property of the deceased had the deceased died intestate. The non applicants had not mentioned the name of the applicant in the petition and the address of the applicant was also not mentioned. There is just cause for revocation of the grant of Letters of Administration, which was granted vide Judgment dated 29.01.2007. Accordingly, issue No. 1 is decided in favour of the applicant and against the non applicants.
Mahendri Kumari Vs. Manish Kumar -: 15 :- ISSUE NO.2 (RELIEF)
29. As a result of my finding on issue No.1, the petition for revocation of Letters of Administration is allowed and grant of Letters of Administration vide Judgment dated 29.01.2007 is revoked. The non applicants are directed to return the certificate, issued on the basis of Judgment dated 29.01.2007. The non applicants shall file amended petition after including the name and address of applicant.
Announced in open Court (V.P. VAISH)
on this 09th day of March 2009 ADDL. DISTRICT JUDGE-07
(CENTRAL) DELHI
Sadique
Mahendri Kumari Vs. Manish Kumar