Delhi District Court
Sh. Pradeep Kumar Gautam vs The State on 2 November, 2018
IN THE COURT OF SH. GAJENDER SINGH NAGAR : LD.
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL
RENT CONTROLLER (CENTRAL) : DELHI
Petition No. : SC/60217/16
In the matter of:
Sh. Pradeep Kumar Gautam
....Petitioner.
Versus
The State
.....Respondents.
Date of Institution : 16.09.2010 Date of order when reserved : 22.10.2018 Date of order when announced : 02.11.2018 O R D E R : 1 Vide this order, the undersigned shall decide an application
U/s. 383 of Indian Succession Act for revocation of succession certificate filed on behalf of Ms. Urmila Chaudhary whereby she sought revocation of succession certificate dated 19.07.2010 prepared in terms of order dated 29.05.2010. The main contention of the objector is that the deceased Sh. Brij Gopal Sharma had executed a registered Will dated 06.8.2003 during his life time whereby he bequeathed the Fixed Deposit Receipts of Rs.45 lacs in favour of the SC/60217/16 1/12 present objector Ms. Urmila Chaudhary. It is further contended that the petitioner Sh. Pradeep Kumar Gautam was aware about the Will despite that he did not disclose the same in his petition. It is further contended that Sh. Pradeep Kumar Gautam is not the son or adopted son of the deceased. It is also contended that respondent no. 4 Smt. Asha was never served despite that succession certificate was granted in favour of the petitioner.
2 It is contended that Sh. Brij Gopal Sharma during his life time filed a Civil suit bearing no. 510/2004 against Chairman and Managing Director of Central Bank of India seeking release of the amount of Fixed Deposit Receipts alongwith interest. In that petition, an application Under order 1 Rule 10 (2) CPC filed by the present petitioner for impleading him as a party, which was dismissed by the Court. In reply to that application Under order 1 Rule 10 CPC, it was stated by the deceased that petitioner is not his son. It is contended that petitioner has mentioned that after the death of Sh. Brij Gopal Sharma that civil suit has become infrustous, while in fact the present SC/60217/16 2/12 petitioner has been substituted in that civil suit (her application U/o. 22 CPC was allowed by the Ld. Appellate Court). The deceased got published a public notice in the newspaper dated 03.03.2007 thereby disinherited his three daughters.
3 Reply was filed on behalf of the petitioner. It is contended that succession certificate was issued after following due procedure of the Court. Publication has also been made in the newspaper. It is contented that the Will is forged & fabricated one. It is stated that at the time of execution of the Will, the deceased lost his mental faculty, memory and suffering from all kind of ailments. It is contended that civil suit bearing no. 510/2004 was got filed by the applicant from Sh. Brij Gopal Sharma forcibly by prevailing upon him by taking advantage of his old aged ailments. It is contended that the application Under order 1 Rule 10 CPC filed by the present petitioner in Civil Suit No. 510/2004 was dismissed on technical ground and not on merits. It is contended that the adoption of the petitioner by Sh. Brij Gopal Sharma is well known to all the relatives and friends. It is contended SC/60217/16 3/12 that no such publication dated 03.03.2007 was got issued by deceased Sh. Brij Gopal Sharma.
4 In order to prove her case, objector examined herself as AW
1. She reiterated the contents of the petition. She filed on record the certified copy of Will of Sh. Brij Gopal Sharma as Ex. AW1/1. It is stated that the original of the same is lying in the Hon'ble High Court of Delhi in case TEST No. 78/2010. Apart from the said Will, the applicant has also proved the following documents : 1 Mark B is the copy of death certificate of Vidhya Devi 2 Ex. AW1/3 is the copy of death certificate of Sh. Brij Gopal Sharma.
3 Mark C is the copy of death report of Brij Gopal Sharma. 4 Mark D is the copy of order dated 14.12.2010.
5 Marks E is the copy of the order dated 24.12.2005 6 Ex. AW1/8 to Ex. AW1/12 (Collectively) are the certified copies of pleading other civil litigations.
7 Marks G is the copy of newspaper.
SC/60217/16 4/12
8 Mark H is the copy of receipt of charges incurred on publication.
9 Mark I is the copy of cremation ground.
10 Mark J is the photograph of death of the deceased. 11 Ex. AW1/17 is the the election I card of the applicant. 12 Mark K is the copy of PAN Card.
13 Ex. AW1/19 is the certified copy of order of Hon'ble High Court.
14 Mark L (Collectively) is the copy of Nursing Home. 5 In her cross examination, she denied the suggestion that Sh. Brij Gopal Sharma had three sons. It is stated that she did not inform about the preparation of the said Will in her favour by Sh. Brij Gopal Sharma to his LRs before his death. She denied the suggestion that the FDR, Ex. PW2/1 was the joint property of Sh. Brij Gopal Sharma and his wife Smt. Vidyawati. It is accepted that the deceased was hospitalized for a period from 25.02.2007 to 25.03.2007. 6 AW2 Sh. Avdhesh Kumar, Data Entry Operator from Office SC/60217/16 5/12 of District Magistrate, Kanjhawla, Delhi brought on record a Will dated 06.08.20036 having registration no. 30582, Addl. Book No. III, Vol. No. 2195, pages 128130 registered on 06.08.2003 executed by Sh. Brij Gopal Sharma. It is stated that the copy of the Will on record is found correct with the office copy of the same and the copy of the same is Ex. AW2/1. In his cross examination, it is stated that he has not brought the record of additional book in which the aforesaid Will supposed to be pasted. It is voluntarily stated that the record of additional book are loose.
7 AW3 Sh. Ashok Kumar Sharma, one of the attesting witness deposed that he has signed on the Will dated 06.08.2003, Ex. AW2/1 as a attesting witness at point A1 and A2. It is stated that he identifies the signatures of Late Sh. Brij Gopal Sharma at point B1 to point B5. It is stated that he also identifies the signature of another attesting witness Sh. Krishan Mohan at point C1 and C2. It is stated that the said Will was registered with the Office of Sub Registrar, Pitampura, Delhi. It is stated that the said Will was typed in SC/60217/16 6/12 Pitampura, Delhi. It is stated that the deceased Sh. Brij Gopal Sharma with his free will and consent executed and signed the Will in his presence and also in the presence of another attesting witness. In his cross examination, it is stated that Urmila Chaudhary is his sister in law i.e. real sister of his wife. It is accepted that Ms. Urmila Chaudhary has no blood relation with Sh. Brij Gopal Sharma. It is accepted that he had also given his evidence in TEST 78/2010 before the Hon'ble High Court of Delhi, copy of the same is Ex. AW3/P1. It is accepted that legal heirs of Brij Gopal Sharma have filed a case against this witness. No other witness examined on behalf of applicant/objector Urmila Chaudhary.
8 No evidence led on behalf of non applicant/petitioner Sh. Pradeep Kumar Gautam.
9 Arguments advanced by the Ld. Counsel for petitioner and respondent. Heard. Record perused.
10 Relevant provision of law to decide the present revocation petition is Section 383 of Indian Succession Act which is reproduced SC/60217/16 7/12 as under : Section 383. Revocation of certificate - A certificate granted under this Part may be revoked for any of the following caused, namely :
(a) that the proceedings to obtain the certificate were defective in substance;
(b) that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case;
(c) that the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently;
(d) that the certificate has become useless and inoperative through circumstances;
(e) that a decree or order made by a competent Court in a suit or other proceedings with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should SC/60217/16 8/12 be revoked.
11 In the original succession petition filed by Sh. Pradeep Kumar Gautam, respondent Smt. Asha was granted 1/4th share, hence, the ground of improper service of the respondent Asha is not maintainable as she has already been granted 1/4 th share in the FDR of Sh. Brij Gopal Sharma in the petition filed by the Sh. Pradeep Kumar Gautam. Further the ground of improper service of one of the legal heir can not be taken by the present applicant.
12 It is to be noted that during his life time, the deceased has filed a case against the Chairman and Managing Director of Central Bank of India for release of FDR in question and in that civil suit, an application was filed by the present petitioner Pradeep Kumar Gautma for impleadment in that suit as a party, however, the said application was dismissed, in the reply to that application it was submitted beofre Civil Court by the deceased that petitioner is not his son. 13 A registered will of the deceased has been produced by the applicant Smt. Urmila Chaudhary, she duly proved that Will on SC/60217/16 9/12 record, though it is contended that the said will was got executed by the executant under influence and in a state of unsoundness of mind , however, no evidence could be brought on record to show that the executant was of unsoundness at the time of execution of the said Will. It is to be noted that no subsequent Will has been brought on record by the petitioner Sh. Pradeep Kumar Gautam, which shows that the alleged registered Will is the last and final Will of the deceased. The probate petition qua the will is pending before the Hon'ble High Court of Delhi. The registered Will of the deceased which is lying in the file of TEST case bearing no. 78/2010 before Hon'ble High Curt of Delhi. Certified copy of the same has been filed on record, one of the attesting witness has been examined in this case and the Will of the deceased duly proved in the present revocation petition. 14 Moreover, at the time of applying for succession certificate, it was categorically mentioned by the petitioner that an FDR of Rs.45 lacs is exclusively in the name of the deceased Sh. Brij Gopal Sharma, however, in his reply to the revocation of the succession certificate, it SC/60217/16 10/12 is submitted by him the said FDR is jointly in the name of deceased Sh. Brij Gopal Sharma and Smt. Vidyawati. It is to be noted that no succession certificate was sought qua the estate of Smt. Vidyawati and the petitioner suppressed this material fact at the time of filing of the earlier petition.
15 Further, a civil suit calling upon the bank to release the amount of FDR in question is still pending wherein objector is contesting on the basis of the Will, the said civil suit would decide the fate of the FDR in question. It is to be noted that decision of this Court is only a determination of prima facie title. This as a necessary corollary confirms that it is not a final decision between the parties. So, it cannot be construed that mere grant of such certificate or a decision in such proceeding would constitute to be decision on an issue finally decided between the parties. If that be so the principle of res judicata cannot be made applicable. Reliance being placed on Madhvi Amma Bhawani Amma and others, Vs. Kunjikutty Pillai Meenakshi Pillai and others, AIR 2000 Supreme Court 2301. SC/60217/16 11/12
16 In view of the aforesaid discussion, the succession certificate earlier granted to the petitioner is hereby revoked as he concealed the fact that the FDR is in the joint name of deceased Brij Gopal Sharma and his wife Smt. Vidyawati. Further the succession certificate has become useless as a probate petition qua will of the deceased Brij Gopal Sharma having stipulation qua FDR in question is pending before Hon'ble High Court of Delhi. The succession certificate is also useless in view of the pendency of the civil suit wherein right to the FDR in question are under challenge. 17 Thus, the succession certificate dated 19.07.2010 prepared in terms of order dated 29.05.2010 is hereby revoked. Since, in pursuance of the succession certificate no benefits were released to Sh. Pradeep Kumar Gautam and others, hence, they are not liable to return Digitally signed any amount. GAJENDER by GAJENDER SINGH NAGAR SINGH Date:
NAGAR 2018.11.02
File be consigned to Record Room. 23:03:08
+0530
(Gajender Singh Nagar)
ACJ/ARC (Central)
Delhi/02.11.2018
SC/60217/16 12/12