Delhi District Court
Order vs . on 15 March, 2010
In the court of Ashwani Sarpal, Addl. District Judge-05,
West District, Tis Hazari Court Delhi.
Sudhir Kumar Kohli
vs.
State and others
(M. No. 43/09)
(Petition u/s 114 CPC for review of judgment dated 5-5-2009)
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ORDER:-
Applicant/petitioner on basis of Will of his father dated 10-11- 1995 filed a petition bearing no. 183/07 for grant of Probate in respect of property no. C-435, Nirman Vihar, New Delhi which was dismissed on 5-5- 2009 against which the present review application has been filed. I have heard counsel for both the parties and gone through the record.
In the probate petition despite holding that Will dated 10-11-1995 is the last and validly executed testament of deceased father of petitioner, no relief was granted to petitioner while relying upon the decision of Delhi High Court in case Surender Patrick Lall vs. State 118 (2005) DLT 647 as during trial it had come on record that deceased subsequent to the execution of the Will had already transferred the title/ownership of the first floor/terrace of the property in question to the petitioner who had further sold the same to the respondents after receiving the sale consideration. It was also found that intention of the deceased had changed not to rely upon and enforce his Will due to gifting of first floor to the petitioner and remaining ground floor to both the respondents. It was also held that Will has to be probated as a whole so the petition was even not maintainable for remaining ground floor portion of the property. These findings have been assailed in this review petition. In the 2 review petition, petitioner had not disputed the facts at all as emerged from the record after trial.
Mere fact that Will has been proved as the last and genuine testament of deceased does not automatically entitle the propounder to claim the relief of Probate or Letter of Administration in all circumstances. The court despite establishment of genuineness of the Will can still decline the relief claimed on some justified grounds. Section 298 of Indian Succession Act permits the court to refuse to grant Letter of Administration for reasons to be recorded in writing whereas section 255 of the Act allows the court to grant Probate or Letter of Administration with Will annexed subject to certain exceptions keeping in view the nature of the case. Hence the plea taken that court had no other option except to compulsorily grant relief to the petitioner once the Will in question is proved cannot be accepted.
Petitioner as per paragraph no. 8 of his petition had claimed relief in respect of only one immovable property of the deceased. He had claimed relief in respect of whole of this property and not for any particular part or portion. It was not disclosed in the petition how many floors this property consisted of or what is an extent of construction. Will was executed on 10-11- 1995 by deceased who expired on 4-5-2005. Deceased after execution of Will had gifted first floor/terrace floor of the property to the petitioner by way of gift deed dated 27-5-2004. Petitioner further by way of registered sale deed transferred this portion to the respondents on 1-9-2005 after receiving the sale consideration.
Counsel for petitioner cited case laws Adwait Ch. Mondal vs. Krishnadhone Sarkar Vol. XXL Calcutta Weekly Notes 1179 and argued that court has to grant relief once the Will is proved and it cannot go into such question of title. However this case can be distinguished from the facts and circumstances of the present case. In this case before Calcutta High Court, the relief was granted as there was nothing on record to show that any statutory title had been acquired by the propounder and court without expressing any opinion how the interest of other parties shall be affected by the probate, granted the relief. The circumstances of this case are different from the present case so this case law is not applicable. Here in the present case, not only the 3 statutory title was passed over in favour of petitioner by the deceased by executing gift deed but also he sold the same to the respondents subsequently through the sale deed. Thus if the relief is granted to the petitioner then certainly the right of the respondents would be affected. Accordingly while relying upon the decision given by Delhi High Court in Surender Patrick Lall's case, this court was justified in looking into the aspect of title of the deceased qua the property to the limited extent while rejecting the claim of the petitioner so far first/terrace floor of the property is concerned.
The submission made on behalf of petitioner that Probate court cannot consider at all whether particular bequest is good or bad and has to grant relief claimed by the petitioner in all circumstances cannot be accepted as fully correct because Court still under powers of section 255 and 298 of Indian Succession Act can refuse to grant Probate or Letter of Administration in few situations where such relief is not permissible or would convey nothing. The decision of Delhi High Court in Surender Patrick Lall's case further supports this proposition. The submission of counsel for petitioner that this judgment was applicable only in the facts of that particular case and not a law is not correct. The purpose of grant of Probate or Letter of Administration on basis of Will is to give powers to anyone to supervise, manage or administer the properties of the deceased in proper and effective manner. When petitioner had already acquired the full powers to deal with the first/terrace floor of the property though gift deed executed by the deceased subsequent to the Will and even lateron transferred all rights and title to the respondents by executing sale deed then no useful purpose would have been served to obtain Probate or Letter of Administration for him.
The deceased had lost his title and ownership atleast for first floor/terrace floor after transferring the same to the petitioner on 27-5-2004 through gift deed. Petitioner also lost the title or interest in the same after sale of the same to the respondents. Delhi High Court in Surender Patrick Lall's case has held that where testator had lost right to a property, a Will in respect to the said property would convey nothing and if nothing is conveyed under a Will due to the fact that the testator has no right, a court may decline the Probate. While relying upon this judgment and keeping in view the fact that not 4 only deceased but also petitioner had further sold the property, the relief claimed was declined. When petitioner himself had sold the first floor of the property then for what purpose he would take from the court the powers to administer it had remained unexplained.
Court is not powerless to take into consideration the subsequent events to find out whether the deceased had changed his mind or not and whether his intention was to rely upon and enforce the Will once executed by him or not. During trial, certain circumstances had come on record which could not be explained by the petitioner and those circumstances pointed out that deceased infact distributed his property among his children and executed gift deed in favour of petitioner for first/terrace floor and assigned the ground floor to his two daughters. Those facts are not disputed in this application. Mere fact that Will could not be cancelled or revoked specifically by the deceased under section 70 of Indian Succession Act does not debar the court to look into the subsequent intention of the deceased whether he wanted to rely upon the same after his death or not. Will in question executed by the deceased and subsequent distribution of properties and even execution of the gift deed had created an absurd situation. Such type of Will which create anomalies and contradicts other documents executed by the deceased can be declined to be enforced by the court. No doubt the Will becomes enforceable from the date of death of testator but if before that testator had lost right or title over the property or he had already disposed off his property then as per judgment of Surender Patrick Lall's case, Will becomes only a waste piece of paper.
The another arguments of the counsel for the petitioner that atleast court should have granted relief in respect of ground floor of the property on basis of Will if no relief can be granted in respect of first/terrace floor. This submission is also not acceptable because first of all in this regard no prayer was made in the petition or at any time during trial. Moreover the Will has to be probated as a whole and not in parts. Counsel for petitioner while relying upon the Single Bench judgment of Lahore High Court in Gurbachan Kaur vs. Satwant Kaur AIR 1925 Lahore 493 argued that relief can be granted for part of the property of the deceased. On the other hand Division Bench of Madras High Court in In Re: T.K. Parthasarathi Naidu AIR 1955 Madras 411 held 5 contrary and stated that Probate or Letter of Administration with or without the Will annexed must as a general rule, relate to all the properties that is the entire estate of the deceased and that only in exceptional cases falling under sections 254 to 257 of Indian Succession Act, a probate or administration limited to specific item of property or a fraction of the estate can be granted. Madras High Court in this judgment also considered the judgment of Lahore High Court cited above and found that the same has already been overruled by subsequent judgment of Lahore High Court in case Sardar Singh vs. Teja Singh AIR 1946 Lahore 277..
It is not the case of the petitioner as per his review application that any of the exception of section 254 to 257 of Indian Succession Act is applicable to him. Even in his probate petition nowhere any request was made to grant relief in respect of ground floor part of the estate of the deceased by alleging that upper portion he had already got title or interest. When no plea was taken in this regard, then no review is maintainable on new grounds or prayers which were never raised. Petitioner cannot be granted any relief in respect of ground floor portion of the property in question also. Thus the review application is liable to be dismissed on this ground.
Accordingly I find no error apparent on the face of record and find no ground to review the judgment dated 5-5-2009 so this review application is dismissed. File be consigned to record room.
(Ashwani Sarpal)
Dt. 15-3-2010 Additional District Judge