Delhi High Court
Smt. Nishi Gupta vs State & Ors on 4 February, 2016
Author: Valmiki J.Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TEST.CAS. No.43/2012
% 4th February, 2016
SMT. NISHI GUPTA ..... Petitioner
Through: Mr. A.B. Pandey and Ms.
Tejasvi Srivastava, Advocates
versus
STATE & ORS ..... Respondents
Through: Mr. Santosh Kumar Tripathi,
ASc for respondent no. 1
Mr. Ravi Varma and
Ms.Satakshi Sood, Advocates for
the Objector
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
I.A. No. 19965/2012 (for modification of Order dated 4.7.2012) This I.A. has already been disposed of vide an Order dated 05.12.2012, and therefore, this I.A. need not be shown in the list. I.A. No. 20001/2012 (for exemption) This I.A is only for exemption and the same is disposed of accordingly.
I.A. 10945/2013 (u/S 151 CPC by IO, PS Mandir Marg, New Delhi) This application is infructuous, inasmuch as, the Will in TEST.CAS. 43/2012 Page 1 of 11 question of late Smt. Damyanti Devi dated 15.1.2009 was given to the Investigating Officer in terms of the Order of the learned Single Judge of this Court dated 25.09.2013. I.A. is accordingly disposed of. TEST.CAS. No.43/2012
1. This testamentary case is filed by one Ms. Nishi Gupta who is the daughter-in-law (she is the wife of Mr. Alok Gupta/respondent no.3, son of late Smt. Damyanti Devi) of the deceased late Smt. Damyanti Devi who expired on 05.04.2010. By this testamentary case, the petitioner seeks grant of the letters of administration of the last Will dated 15.01.2009 of late Smt. Damyanti Devi.
2. Besides respondent no. 1/State, there are five other respondents. Respondent nos. 2 and 3; Mr. Ashok Gupta and Mr. Alok Gupta; are the sons of late Smt. Damyanti Devi. Respondent no. 3 Mr. Alok Gupta is the husband of the petitioner as already stated above. Respondent nos. 4 to 6; Ms. Nisha Pratap, Ms. Usha Kuchhal and Ms. Archana Gangal; are the daughters of late Smt. Damyanti Devi.
3. Respondent nos. 2 to 6 have already given their no TEST.CAS. 43/2012 Page 2 of 11 objection in favour of the petitioner for grant of letters of administration of the Will dated 15.01.2009 of late Smt. Damyanti Devi. Since, however, the present case is a testamentary case and filing of no objections would not have been sufficient, therefore, petitioner has led evidence to prove the Will.
4. In view of the above facts it is seen that the respondent nos. 2 to 6 are the class I legal heirs under the Hindu Succession Act, 1956 of late Smt. Damyanti Devi and thus they are the only persons who would have direct interest to the estate of late Smt. Damyanti Devi in case there was no Will of late Smt. Damyanti Devi and she had died intestate. The only other person who could have claimed locus or interest in the present testamentary case would be a person who would be relying upon any other Will of late Smt. Damyanti Devi other than the Will dated 15.01.2009 of late Smt. Damyanti Devi which is propounded in the present case.
5. At the stage, when the petitioner had led evidence of herself and the two attesting witnesses to the Will, and the testamentary case was to be disposed of, objections have been filed to the case by a company M/s Vipul Infrastructure Developers Ltd. These objections TEST.CAS. 43/2012 Page 3 of 11 are essentially in the nature of a written statement to the main case. Though the written statement/objections ought to have been filed much earlier, inasmuch as, publication was effected in this petition on 12.01.2013 in the newspaper 'The Statesman', however, since the objector company M/s Vipul Infrastructure Developers Ltd. claims that it did not have knowledge of the present testamentary case, I have heard the counsel for the objector M/s Vipul Infrastructure Developers Ltd.
6. In sum and substance, the objections filed by M/s Vipul Infrastructure Developers Ltd. are on the basis that late Smt. Damyanti Devi had claimed right, title and interest in a property No. D-7, Tower No. B, Vipul Orchids Tower, 6 Aurbindo Marg, New Delhi, having approximately area of 4,220 square feet, but, late Smt. Damyanti Devi did not have the rights claimed in the property because as per the objector there was no concluded agreement to sell in favour of late Smt. Damyanti Devi.
7. It is an undisputed fact that late Smt. Damyanti Devi during her life time had filed a suit being CS(OS) No.2287/2007 for specific performance against the objector, and in this suit, the petitioner in the present testamentary case, has already been impleaded as the TEST.CAS. 43/2012 Page 4 of 11 plaintiff on the death of late Smt. Damyanti Devi.
8. By the objection petition, the objector M/s Vipul Infrastructure Developers Ltd. claims that the Will dated 15.01.2009 of late Smt. Damyanti Devi is a forged and fabricated document and the objector accordingly has already filed a complaint before the concerned Court of Additional Chief Metropolitan Magistrate, District Courts, Saket, New Delhi for offences under Section 420/120B etc under the Indian Penal Code, 1860 wherein the existence and validity of the Will of late Smt. Damyanti Devi dated 15.01.2009 is in question. It is stated by the objector that since the Will dated 15.01.2009 of late Smt. Damyanti Devi is forged and fabricated by the petitioner in collusion with respondent nos. 2 to 6 in the present case, any decision in the present testamentary case; and which will be a judgment in rem, will affect the decision in the criminal case as also the decision in the CS(OS) No.2287/2007, and therefore, this testamentary case be dismissed. On behalf of the objector its counsel has alternatively argued that as long as this Court makes observation that decision in the testamentary case will not affect the decision as regards the existence and validity of the Will in the criminal case filed by the objector and in TEST.CAS. 43/2012 Page 5 of 11 the suit CS(OS) No. 2287/2007, the objector has no objection to the decision in this testamentary case.
9.(i) In my opinion, no doubt a judgment in a testamentary case operates as a judgment in rem in view of Section 41 of the Indian Evidence Act, 1872, however, merely because a judgment operates in rem, it does not mean that any and every person can file objections in a testamentary case. Only such persons can file objections in a testamentary case who would either be the legal heirs of the deceased testator under the Hindu Succession Act, 1956 if the deceased testator had died intestate or such persons who would be setting up a testamentary instrument other than the testamentary instrument which is propounded in the present case being the Will dated 15.01.2009 of late Smt. Damyanti Devi.
(ii) There is no law that any person whosoever can file objections for grant of a probate/letters of administration with respect to Will although such a person has no locus/right, title or interest to the estate of the deceased as a legal heir of the deceased testator, whether under the Hindu Succession Act or because of relying upon a testamentary instrument of the deceased.
TEST.CAS. 43/2012 Page 6 of 11
10. Reliance placed by the counsel for the objector on the judgment in the case of Krishan Lal Dilawari vs. State & Ors. (2014) 210 DLT 439 is misplaced because in the said case it is nowhere held by this Court that any and every person who has no claim to the estate of the deceased, whether by natural succession or because of a testamentary instrument can file objections in a probate/testamentary case where a Will of the deceased testator is propounded.
11. Accordingly, I hold that the objector M/s Vipul Infrastructure Developers Ltd. has no locus whatsoever to file any objections in the present testamentary case which seeks letters of administration of the Will dated 15.01.2009 of late Smt. Damyanti Devi, inasmuch as, the objector M/s Vipul Infrastructure Developers Ltd. has no claim to the estate of the deceased late Smt. Damyanti Devi. Merely because the objector is a defendant and is disputing the rights claimed by late Smt. Damyanti Devi in the suit for specific performance which was filed by late Smt. Damyanti Devi in her life time, will not mean that the objector can file objections in this testamentary petition. Decision in the testamentary petition will in no manner affect the defence on merits of the objector in the suit for TEST.CAS. 43/2012 Page 7 of 11 specific performance filed by late Smt. Damyanti Devi (and in which the present petitioner has been substituted after the death of late Smt. Damyanti Devi) inasmuch as the defence of the objector on merits will be with respect to entitlement or dis-entitlement of late Smt. Damyanti Devi (and now her legal heirs) as per the merits of the contract existing or not existing between late Smt. Damyanti Devi and the objector with respect to the property bearing No. D-7, Tower No. B, Vipul Orchids Tower, 6 Aurbindo Marg, New Delhi, having approximately area of 4,220 square feet. Objections of M/s Vipul Infrastructure Developers Ltd are, therefore, dismissed as not maintainable on account of lack of locus of the objector.
12. The petitioner has already led evidence by way of affidavits in this case. The first affidavit of evidence is filed by the petitioner herself. The affidavits by way of evidence have also been filed of the two attesting witnesses Mr. Prashant Kumar and Ms.Usha Kuchhal.
13. The petitioner in her affidavit by way of evidence has deposed with respect to late Smt. Damyanti Devi of her free will and sound mind while executing her last Will dated 15.01.2009 which is TEST.CAS. 43/2012 Page 8 of 11 propounded in the present testamentary case. The attesting witness Mr. Prashant Kumar in his evidence by way of affidavit has deposed with respect to the Will dated 15.01.2009 typed in his presence and in the presence of other witness and that late Smt. Damyanti Devi executed the Will by putting her signatures in Hindi at two places in the presence of the attesting witness Mr. Prashant Kumar and the other attesting witness Ms. Usha Kuchhal. There is specific deposition in the affidavit by way of evidence on behalf of Mr. Prashant Kumar of the points where the deceased late Smt. Damyanti Devi signed and also the points where he and other witness Ms. Usha Kuchhal signed. Attesting witness has identified the signatures of both late Smt. Damyanti Devi as well as of Ms. Usha Kuchhal. This attesting witness Mr. Prashant Kumar has also deposed with respect to the soundness of mind of the deceased late Smt. Damyanti Devi at the time of making of the Will dated 15.01.2009 which is exhibited as Ex. P4 and that the Will dated 15.01.2009 was executed by late Smt. Damyanti Devi without any pressure, coercion, force or duress. The other attesting witness Ms. Usha Kuchhal has like wise identically deposed with respect to the due execution and attestation of the Will.
TEST.CAS. 43/2012 Page 9 of 11
14. In view of the evidences led by the petitioner herself and of the two attesting witnesses Mr. Prashant Kumar and Ms. Usha Kuchhal, and the fact that the sons and daughters of the deceased late Smt. Damyanti Devi as respondent nos. 2 to 6 in this testamentary petition have given their no objection for grant of the letters of administration by filing their no objection by way of affidavit, I therefore, hold that the petitioner is entitled to letters of administration with the Will dated 15.01.2009 annexed, exhibited as Ex. P4, as being the last Will and testament of late Smt. Damyanti Devi.
15. In view of the above, the testamentary case is allowed, and letters of administration with the Will dated 15.01.2009 of late Smt. Damyanti Devi annexed are granted to the petitioner on the petitioner depositing the necessary stamp duty as required for letters of administration. Since respondent nos. 2 to 6, who are the natural legal heirs of late Smt. Damyanti Devi have given their no objection to the grant of letters of administration in favour of the petitioner, petitioner need not file any administration bond or surety bond.
16. The testamentary case is accordingly allowed and disposed TEST.CAS. 43/2012 Page 10 of 11 of leaving the parties to bear their own costs.
FEBRUARY 04, 2016/hkaur VALMIKI J. MEHTA, J
TEST.CAS. 43/2012 Page 11 of 11