Delhi District Court
Ajit Kumar vs State on 13 October, 2016
IN THE COURT OF SH. SANJAY KUMAR : ADDL. DISTRICT JUDGE
(WEST)-02, TIS HAZARI COURTS:DELHI
Old P.C No. 106/14
New P.C. No. 15929/16
Ajit Kumar
S/o Shri Harbans lal,
R/o H.No. 52/41 F, Gali No. 17,
Nai Basti, Anand Parbat
New Delhi- 110005
... Petitioner
Vs.
1 State
2 Smt. Pinki
W/o Shri Raj Pal,
D/o Late Ram Prashad
R/o E-376, Jahangirpuri
Delhi- 110033
... Respondents
Date of original institution of the case : 23.12.2014
Date of reservation of order : 04.10.2016
Date of pronouncement of judgment : 13.10.2016
JUDGMENT:
1 A petition under Section 272/273 of Indian Succession Act filed by the petitioner in respect of the testament of the Will dated 25.07.1997 of late Sh. Ram Prashad.
2 In brief the facts are that the deceased Ram Prashad and father of the petitioner Sh. Harbans Lal are real brothers and PC No. 106/14 1/10 there were two other brothers of Ram Prashad, namely Sh. Mool Chand, Ram Chander. Late Ram Prashad ( hereinafter referred to as 'deceased') and petitioner's father were joint owner of property bearing No. 52/41F, Gali No. 17, Nai Basti, Anand Parbat, New Delhi, measuring about 55 square yards. It is three storied constructed building. The petitioner and his family is in occupation of one room on the ground floor with common toilet and bath room and one room at the Ist floor above the said ground floor room.
3 It is stated that deceased was having only one daughter, respondent no. 2, Pinki and after the marriage of respondent no. 2 nobody took care of deceased as he was suffering from joint pains pulmonary Koch and not able to walk and stand. The petitioner, his wife and his father starting taking care and look after the deceased.
4 It is stated that deceased had executed a testament of Will dated 25.07.1997 thereby bequeathed his un-divided share in favour of petitioner. The said Will duly registered with Sub- Registrar-I vide document at Serial no. 118133, Addl. Book No. 3, Vol. No. 2904 on page no. 115 on 25.07.1997. The deceased separately took sale consideration of Rs. 60,000/- from the petitioner and executed General Power of Attorney, Agreement to Sell, Affidavit, Receipt etc. in favour of the petitioner.
5 It is stated that deceased expired on 09.04.2005 and petitioner performed his last rites. The petitioner seeks a Probate PC No. 106/14 2/10 as per testament in respect of un-divided share of property no. 52/41F, Gali No. 17, Nai Basti, Anand Parbat, New Delhi.
6 Upon filing the present petition, notice of the same was issued to all respondents/LRs of the deceased. Citation for general public was published in the daily newspaper "The Veer Arjun" dated 02.02.2015. And notice was also served to the concerned Collector/SDM accordingly Tehsildar (Patel Nagar) filed the valuation report of the property in question and assessed the market value of the same as Rs. 14,79,698.52 7 The respondent no. 2, Pinki filed written objections and taken preliminary objections that the present petition filed by petitioner is erroneous, baseless, flawed, groundless and is without any cause of action. It is stated that present petition is barred by limitation. It is stated that limitation to file the Probate Petition is clearly expired to the fact that a civil suit was dismissed as withdrawn by the petitioner from the court of Shri Nipun Awasthi, Ld. Civil Judge, Tis Hazari.It is stated that petitioner claimed himself as the owner of 1/4th share in the property on the basis of documents such as agreement to sell, GPA, SPA, Will etc. allegedly executed by late Sh. Ram Prasad on 25.07.1997 and now almost 17 years have expired and petitioner approached the court after a huge lapse of time.
8 It is further stated that petitioner in the year 2007 filed a suit for specific performance against the answering respondent PC No. 106/14 3/10 and in the said suit petitioner mentioned about the alleged execution of the Will by the deceased. Moreover prior to filing the said suit a legal notice dated 29.10.2007 also got issued by petitioner to respondent no. 2 and whereby asked to execute the sale deed but answering respondent refused. It is stated that answering respondent prior to filing of the present petition has requested her ¼th share belonging to her father in favour late Sh. Ram Prasad in favour of Shri Mool Chand by executing a registered Relinquishment Deed in his favour dated 02.04.2014.
9 It is stated that the property in question was jointly owned by the four brothers namely, Sh. Mool Chand, Sh. Harbans Lal, Sh,. Ram Prasad and Sh. Ram Chander having 1/4th un-divided share. Sh. Mool Chand, one of the co-owner in the year 2002 filed a suit for partition bearing no. 679/2002 and a preliminary decree was passed on 16.04.2005 by the Sh. Raj Kumar, Ld. Civil Judge, Tis Hazari. Thereafter final decree was passed on 03.02.2010. The alleged agreement to sell, GPA, Will dated 25.07.1997 of deceased in favour of the petitioner are illegal, null and void. It is stated that deceased never sold the suit property and never executed the Will as alleged by the petitioner.
10 The deceased also got issued a notice during his life time in respect of alleged GPA, SPA dated 25.07.1997 which was replied by petitioner, through his advocate Sh. S.K. Yadav and same were filed in the suit for partition. It is stated that petition is liable to be dismissed. On merit all the averments are denied and it is prayed that petition is liable to be dismissed.
PC No. 106/14 4/1011 Petitioner filed reply to the objections filed on behalf of respondent no. 2 and denying all the averments made in the written statement and reiterated the contentions of the petition.
12 On the basis of pleadings of the parties, the following preliminary issues were framed vide order dated 09.12.2015
1. Whether the present petition is barred by time? OPR
2. Whether present petition is not maintainable in view of the preliminary objections taken by respondent no. 2?
OPR 13 I have heard Sh. K.K. Sharma, counsel for the petitioner and Sh. Sumit Ahuja, counsel for respondent no. 2 on the preliminary issues and also gone through the written submissions filed on behalf of both the parties. My findings on preliminary issues are as under 14 Issue no. 1 & 2 Before giving my findings on the above said issues, Let us peruse the law laid down by Appex Court. The question for consideration, is whether the petition for grant of Probate/ Letter of Administration is governed by the provision of Article 137 of the Limitation Act. Come up in the case of "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", 2008 SCC, Supreme Court of India, while answering whether Article of Limitation Act applies to the application for probate held as under "The genesis of Article PC No. 106/14 5/10 137 of the Limitation Act can be traced from Article 181 of the Limitation Act, 1959. The Limitation Act contains different periods for a specified application. Even in the Limitation Act of 1908 where there is no period provided for a specific application, a residuary clause is included providing limitation for other applications. Article 181 of the Limitation Act, 1908 being the residuary clause contemplates the application for which no period of limitation is provided elsewhere in the schedule or by Section 48 of the Code of Civil Procedure, 1908 which was retained in the Limitation Act of 1963 with certain modification, which can be reasonably ascertained from the comparison of two provisions, which are depicted below:
"181. Application for which Three years when the right to period of limitation is pro-apply accrues.
Vided elsewhere in this schedule or by Section 48 of the Code of Civil Procedure,1908.
137. Any other application for Three years when the which no period of right to apply accrues limitation is provided elsewhere in this Division."
Such distinction is well explained by the Hon'ble Supreme Court in case of Kerala SEB Vs.T.P. Kunhaliumma, reported in (1976)4 Supreme Court Cases 634 in these words:-
"18. The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act 1963 compared with Article 181 of the 1908 Limitation Act shown that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other applications as in the 1963 Limitation Act. The word 'any other application' under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure PC No. 106/14 6/10 Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a Court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if the applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period.
22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a Civil Court. With respect we differ from the view taken by the two-judge bench of this Court in Athani Municipal Council case2 and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 of the 1963 Limitation Act."
Thus, an application under any specified Act before the Civil Court is application conceived under Article 137 of the Limitation Act, 19963 as the distinction, which was sought to be made under Artilce 181 of the Limitation Act, 1908 have been obliterated by deletion and amendment of article 137 of the Limitation Act, 1963. it is no longer res integra that any other applications is not restricted to an application under the Code of Civil Procedure, but an application under special statue being filed before the Civil Court.
15 Hon'ble Supreme Court of India, further in the case of KRISHAN KUMAR SHARMA VS. RAJESH KUMAR SHARMA (2009) SCC, held that Article 137 of Limitation Act is applicable in case of Probate/ Letter of Administration but applicable as per judgment of in case "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", 2008 SCC, (Supra) "16. Rejecting Mr. Dalpatrai's contention. I summarise my PC No. 106/14 7/10 conclusion 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 along as as the right to do so survive 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 from the date of the 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."
Conclusion (b) is not correct while Conclusion (c) is the correct position of law.
16 Now applying the principle of law in the present facts and circumstances according to the averment in the petition PC No. 106/14 8/10 deceased Ram Prasad had executed a Will on 25.07.1997. As per death certificate he had died on 09.04.005. Admittedly, the present petition has been filed on 23.12.2014. In the normal course of calculations of limitation firstly cause of action arose after the death of deceased Ram Prasad, however, there is no objection or dispute to the Will that petitioner must have been approach within three years of death of deceased. But as per averment in the petition a suit of specific performance had already been filed, however, no details are disclosed. The details were disclosed in the written statement filed by respondent no. 2. Accordingly to which the dispute regarding the property in question and other properties has been existing since 2002 when one of the brother of deceased testator had filed a suit for partition having No. 679/02 and same was decreed finally on 03.10.2010.
17 It is further stated in the reply filed by respondent no. 2 that suit for specific performance on the basis of the documents executed alongwith the Will i.e. Agreement to Sell, GPA, Receipt etc also filed by petitioner which were also executed on 25.07.1997. A suit for specific performance was filed in the year 2007 bearing no. 563/14 which was dismissed as withdrawn on 12.09.2014 and a review application was also dismissed on 19.09.2015. As per order in another case filed by the petitioner hearing no. 216/15 was dismissed by Ld. Civil Judge, Sh. Chander Mohan vide order on 07.09.2016.
PC No. 106/14 9/1018 As per record the dispute regarding the Will has been in existence in the year 2002 and thereafter in the year 2007 when petitioner himself on the basis of the agreement to sell coupled with Will in question of deceased Ram Prasad filed a suit for specific performance. The present petition filed in the year 2014, therefore, it is clearly, barred by limitation.
19 It is pertinent to mention here that as per definition of Will in Section 2 (h) of the Indian Succession Act the desire of the testator to be implement after his death. However, the present Will was executed coupled with consideration and agreement to Sell and GPA, therefore, it does not fulfill the essential ingredients of the Will as defined in the law.
On the basis of above discussion issue no. 1 & 2 decided against the petitioner and in favour of respondent no. 2.
20 Relief In view of my finding on issue no. 1 & 2 the petition filed by the petitioner is dismissed. No order as to cost. File be consigned to record room.
(Announced in the open (SANJAY KUMAR)
Court on 13.10.2016 ADJ-02 ( West)
Delhi
PC No. 106/14 10/10
PC No. 106/14 11/10
PC No. 106/14 12/10
PC No. 106/14 13/10
PC No. 106/14 14/10