Delhi District Court
Shri Hira Lal vs The State ( Nct Of Delhi) on 6 December, 2017
IN THE COURT OF SHRI A. S. JAYACHANDRA, DISTRICT & SESSIONS
JUDGE, SHAHDARA, KARKARDOOMA COURTS, DELHI
Probate Case No. 20/16
Shri Hira Lal
S/o Late Shri Panna Lal,
R/o 1/2990-A, Ram Nagar,
Shahdara, Delhi-110032 .....Petitioner
Versus
1. The State ( NCT of Delhi)
2. Shri Chhotey Lal (since deceased)
By LRs
2 (a) Smt. Uma W/o Late Sh. Chhotely Lal
2 (b) Smt. Yogita - married daughter
2 (c ) Smt. Mona - married daughter.
2 (d) Sh. Manoj - Son
2 (e) Sh. Hariom - Son
All residing at - 394, Jhuggi Camp,
Railway Colony, Sakurbasti, Delhi.
3. Shri Mohan
S/o Late Sh. Chhotey Lal
R/o H. No. 1/2990-A,
Ram Nagar Loni Road,
Shahdara, Delhi. .....Respondents
Date of Institution : 23.03.2011
Arguments heard on : 14.11.2017
Date of decision : 06.12.2017
JUDGEMENT
1. This is a petition u/s 276 of the Indian Succession Act. The petition is filed seeking probate of the Will dated 17.10.1988 executed by Shri Panna Lal in P. C. No. 20/16 Hira Lal Vs. The State & Ors. Page no. 1/7 favour of the petitioner and the respondent no.3 herein in respect of property bearing No. 1/2990-A, Ram Nagar, Loni Road, Shahdara, Delhi. It is pleaded that Late Shri Panna Lal was the sole and absolute owner of the above said property and he died leaving behind his legal heirs. It is also pleaded that the said Will was registered before the Sub-registrar-I, Delhi vide document No. 17308 in A.B. No. III, Vol. No. 658 on pages 41 to 44 registered on 17.10.88 no. 127 dated 17.10.1988. The said Will was registered in the presence of independent witnesses.
2. The deceased Panna Lal stated in the Will that he is the absolute owner of the above said property and the same has been bequeathed in favour of petitioner and the respondent no. 3. The petitioner is one of the beneficiaries under the said Will. The deceased at the time of his death was ordinarily residing with the petitioner and the said property is situated within the jurisdiction of this court. Thus, the probate is prayed.
3. Notices and citation were ordered by my ld. Predecessor against the respondents. Upon notice, the respondents no. 2 appeared and filed reply. Respondent no. 3 had already filed his no objection being the other beneficiary under the Will.
Objection by Respondent no.2.
4. The respondent no. 1 is the state and respondent no. 3 is one of the beneficiaries. The respondent no. 2 objects to the probate, being the son of the testator.
5. The respondent no. 2 contends that his late father Panna Lal purchased the property in question out of the joint funds and thus it is not his self acquired property. All were living together. Panna Lal expired on 06.05.2000 intestate. After his death this respondent is entitled for equal share. Late Panna Lal had another son Babu Lal, predeceased leaving behind no heirs. Respondent no.2 was forced to shift to another property because of the rude behaviour of respondent no. 3 who is none other than his own son. According to this respondent, no Will was executed by late Panna Lal. The petitioner and the respondent no. 3 colluded and fabricated the alleged Will dated 17.10.1988. The P. C. No. 20/16 Hira Lal Vs. The State & Ors. Page no. 2/7 Earlier title is not disclosed in the Will. The contents in the Will are also false. This respondent had very good relationship with his father, the testator and also invested huge sum in acquiring the property. The attesting witness-cum-scribe Ashok Kumar Arya, Advocate had not disclosed his enrollment number. The petitioner is not entitled to the letters of administration. The entire Will is forged and fabricated. The absolute rights on the property of the testator is denied. This respondent prays for dismissal of the petition.
6. In the replication by the petitioner, the allegations made in the statement of objections are denied as false and incorrect. The petition averments are reiterated.
The developments after the statement of objections .
7. It is seen that the respondent no. 2 expired on 23.07.2014. The application is filed on 11.05.2015 by the petitioner to bring LRs on record. The said application was allowed by an order dated 27.02.2017. The amended memo of parties is also filed. The respondent no. 2 himself had entered into the witness box while he was alive and his evidence was recorded and was also closed by my ld. Predecessor on 16.07.2013. On behalf of the LRs, the widow of the respondent no. 2 was examined. She also examined another witness namely Anil Bhardwaj.
Issues :
8. The ld. ADJ, N/E before whom the petition was filed earlier, by an order dated 21.03.2012 had framed the following three issues.
1. Whether Late Panna Lal executed any valid and registered will dated 17.10.88 in favour of the petitioner and respondent no.3 in respect of House No.1/2990-A Ram Nagar, Loni Road, Shahdara, Delhi? If in affirmative whether petitioners are entitled to grant of probate of will and letters of administration in respect of the said property? OPP
2. Whether petition of the petitioner is barred by limitation? OPR-2
3. Relief.
Evidence on record :
9. The petitioner in order to vindicate his claim has examined three P. C. No. 20/16 Hira Lal Vs. The State & Ors. Page no. 3/7 witnesses and closed his side. On behalf of the contesting respondent, he himself was examined. However, after his death, his widow and another witnesses are also examined. The respondent no. 3 had made a statement that he has no objection for allowing the petition on 16.07.2013. Contentions of the parties :
10. Heard the ld. Counsel on both the sides. The ld. Counsel Shri S. K. S. Bhadauria for the petitioner submits that the Will is proved and the respondent has not adduced any evidence to prove the grounds on which the petition is resisted. Hence, he prays for allowing the petition.
11. On the other hand, the ld. Counsel Shri Rishi Pal Singh appearing for the LRs of respondent no.2 submits that in view of the subsequent arrangement dated 10.05.2000 between Hira Lal and the respondent no. 2, the probate cannot be granted. He also submits that the petition is highly barred under limitation since the Will is dated 17.10.1988 and the petition for probate is filed on 23.03.2011 i.e. after lapse of nearly 12 years and more. Having given careful thought to the submissions made on either side, the issues are being answered as under. Issue No. 2.
12. Before taking up issue no. 1, it is necessary that issue no. 2 be answered firstly. The respondent no. 2 is obligated to prove that the petition is barred under limitation. The Respondent no. 2 had pleaded that the petition is barred by law and is not maintainable. The respondent no.2 has not disclosed under what provision of law the probate is barred. However, the Ld. Counsel for the respondent submits that this is purely a question of law and is covered under the case law. He relies on Kunwar Jeet Singh Khandapur vs. Kiran Deep Kaur reported in IV (2008) SLT 58 and Mukesh Vs. State of Hon'ble High Court reported in 2017 LAW Suit (Del) 2058.
13. The law laid down by the Hon'ble Supreme Court in Kunwar Jeet (Supra) is clearly set-forth in the said judgment which reads as under :
"15. Though the nature of the petition has been rightly described by the High Court, it was not correct in observing that the application for grant of probate or letters of Administration is not covered by Article 137 of the Limitation Act. Same is not correct in view of what has P. C. No. 20/16 Hira Lal Vs. The State & Ors. Page no. 4/7 been stated in The Kerala State Electricity Board's case (supra).
16. Similarly reference was made to a decision of the Bombay High Court's case in Vasudev Daulatram Sadarangani v Sajni Prem Lalwani (AIR 1983 Bom.268). Para 16 reads as follows:
"16. Rejecting Mr. Dalapatrai's contention, I summarise my conclusions thus:--
(a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;
(b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;
(c) such an application is for the Court's permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed;
(d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years form the date of he deceased's death.
(e) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates".
17. The conclusion 'b' is not correct while the conclusion 'c' is the correct position of law.
18. In view of the factual scenario, the right to apply actually arose on 9.8.1999 when the proceedings were withdrawn by Smt. Nirmal Jeet Kaur. Since the petition was filed within three years, the same was within time and therefore the appeal is without merit, deserves dismissal, which we direct but in the circumstances without any order as to costs."
14. Similarly, our Hon'ble High Court in the ruling of Mukesh (Supra) noted the part of the trial court order and incorporated the same as under :
"Article 137 of the Limitation Act is applicable to the probate or letters of administration proceedings and the limitation of filing such petition is three years. In this regard, P. C. No. 20/16 Hira Lal Vs. The State & Ors. Page no. 5/7 reliance can be placed upon the decisions of Supreme Court given in case Kunwar Jeet Singh vs. Kuldeep Kaur (2008) 12 AD SC 580 and Krishna Kumar vs. Rajesh Kumar Sharma AIR 2009 SC 3247. The present petition was filed after about six years after the death of deceased testator and even after the expiry of three years period from the date of taking liberty from the court. Accordingly the present petition is barred by the limitation. The earlier view of Delhi High Court given in cases S S Lal vs. Vishnu Mittal 2004 (112) DLT 877 DB and Kanwal Malhotra vs. State 2005 (125) DLT 281 that the right to apply for probate/letters of administration is recurring one and no limitation is applicable in such cases is not good law. In view of the subsequent Supreme Court decisions referred above. Hence, no relief can be granted to the petitioner. In such a situation and there remains no other option except to dismiss the present petition. There is no need to discuss the other controversies involved relating to legality, validity and genuineness of the Will in question in such situation because relief claimed cannot be granted to the petitioner even if for the sake of arguments is able to establish that Will at Ex.PW1/1 is genuine and duly executed."
15. In the said case his Lordship Justice Valmiki Mehta upholding the order of the trial court ruled that in view of the law laid down in Kunwar Jeet (Supra), a petition for probate is to be filed within three years of arising the cause of action i.e. when the Will is disputed by the other side.
16. According to the present petition, the testator expired on 6.5.2000 after executing the Will on 17.10.1988. There is no explanation in the petition as to why the Will not sought to be probated between the period of 11 years and the petition came to be filed only in the year 2011. PW-1 in his cross-examination admits that he became aware of the Will about 5-7 years prior to filing of the present suit and that he is a graduate.
17. Ld. Counsel for the petitioner is unable to explain the delay nor there is any specification of dates describing the cause of action. After careful reading of the petition, no cause of action is pleaded. Therefore, the cause of action is to be presumed from the date of death or date of knowledge of the existence of the Will. The Article 137 of the Limitation Act is clear that time from which the period begins to run is when the right to apply accrues. In the instant case, the right to apply P. C. No. 20/16 Hira Lal Vs. The State & Ors. Page no. 6/7 accrued immediately after the death of the testator i.e. in the year 2000 or at the best when the PW-1 came to knowledge about the existence of the Will i.e. 5-7 years ago prior to 2011. Thus, the petition is highly barred under limitation and this issue is answered in favour of the contesting respondent and against the petitioner and the respondent no.3.
Issue No. 118. In view of the petition being not maintainable since barred under limitation, there arises no question of looking into the validity and correctness of the Will and the same would be only a futile exercise.
Issue No. : 3 : Relief.
19. In view of the findings on the issue no. 1 & 2, no relief can be granted to the petitioner and accordingly the following :
ORDER :
The petition stands dismissed. There shall be no order as to costs. File be consigned to Record Room.
Pronounced in the open court (A.S. Jayachandra)
on 06.12.2017 District & Sessions Judge
Shahdara District,Delhi
P. C. No. 20/16 Hira Lal Vs. The State & Ors. Page no. 7/7