Delhi District Court
Dr. Deepankar Roy vs . State & Ors. on 26 May, 2014
Dr. Deepankar Roy vs. State & Ors.
In the Court of Additional District Judge02, South District,
Room No. 602, Sixth Floor, Saket Courts Complex, New Delhi
:
In the matter of
PC No. 08/2011
Dr. Deepankar Roy,
R/o A101, Chittranjan Park,
New Delhi110019. ...... Petitioner
Versus
1. The State.
2. Prof. Kamal K. Datta,
40/83, Chittranjan Park,
New Delhi19.
3. Shri Santanu Datta,
2B, 506 Dihraj Valley, Mohan Gokhale Road,
Mumbai400063.
4. Capt. Arup Roy Choudhary,
Flat No. TA, 13th Floor,
LHOTSE Cooperative Housing Society,
RUIA Park, Gandhigram Road,
JUHU, Mumbai400049.
5. Shri Rana Roy Choudhary,
S5, Kristal Tiara, Ambalipura Post,
Bellundar Road, Bengaluru37.
6. Dr. Rajat Roy Choudhary,
A7/9, Plaza Green Acres, Kamaraj Nagar,
Perungudi, Chennai600096.
PC No. 8/2011 Page 1 of 12
Dr. Deepankar Roy vs. State & Ors.
7. Dr. Jayati Datta,
2E, 702 ISRO Quarters,
Old Airport Road, DOMLUR,
Bengaluru560071.
8. Shri Bir Singh,
R/o Servants Quarters No. 16,
Shivalik Apartments Alaknanda,
New Delhi110019.
9. Shri Tonmoy Datta,
Orchid 301, Flower Valley Survey#73,
Wanowrie Pune411040.
10. Shri Saugato Datta, C/o Kamal Datta,
40/83, Chittranjan Park, New Delhi19.
11. Mrs. Rita Ghosh,
203, Emerald Block, Lumbini Rockale,
Somajiguda, Hyderabad500082.
12. Mrs. Mita Roy, C/o Dr. A. Roy,
A 101, Chittranjan Park, New Delhi19.
13. Mrs. Jharna Roy,
618 80 feet Road,
Koramangala, Bangalore560034.
14. Mrs. Bharati Datta,
40/83, Chittranjan Park, New Delhi19.
15. AVM (Retd.) S.N. Roy Choudhary,
618 80 feet Road,
Koramangala, Bangalore560034. ...... Respondents
Date of Institution : 30.11.2010
Decision Reserved on : 25.04.2014
Date of Decision : 26.05.2014
PC No. 8/2011 Page 2 of 12
Dr. Deepankar Roy vs. State & Ors.
JUDGMENT
(on petition under section 276 r/w Section 254 of the Indian Succession Act, 1925 for Grant of Probate)
1. 1 (IntroductionPetitioner's case) - Petitioner Dr Deepankar Roy is nephew of Mrs. Uma Roy Choudhary. Smt Uma Roy Choudhary during her life executed and signed her last testament of Will dated 16.10.2004 (now Ex PW1/1) and bequeathed her properties in the manner described in Will. The Will was executed in the presence of two witnesses namely Shri V K Gupta ( i.e. PW1) and Shri V K Gupta. She died on 19.01.2010 and at the time of her death, she had fixed place of abode at 50, Shivalik Apartments, Alaknanda, New Delhi 110019, within the jurisdiction of this Court. Moreover, the properties / subject matter of Will are also lie within the jurisdiction of this court. There are movable and immovable properties named in the Will and she also desirous of disposing off residential property and major part thereof to be used to set up a trust fund. She has named three people as trustees of a proposed trust fund to be set up to finance scholarships for meritorious and needy students in Class XI of Raisina Bengali Higher Secondary School, New Delhi. The trustees so named are :
PC No. 8/2011 Page 3 of 12
Dr. Deepankar Roy vs. State & Ors.
i. Professor Kamal K. Datta, S/o Late S.P. Datta, R/o 40/83, Chittranjan Park, New Delhi110019 (i.e. now respondent no. 2) ii. Dr. Deepankar, S/o Late J.M. Roy, R/o A101, Chittranjan Park, New Delhi110019 (i.e. now petitioner) iii. Shri Santanu Datta, S/o Late Capt. K.K. Datta, R/o 332, Jodhpur Park, Kolkatta700068 (presently residing in Mumbai) (i.e. now respondent no. 3) 1.2 The paragraph 3 of the petition enumerate the contents of the Will, which are as follows :
1. The residential premises at 50, Shivalik Apartments and the car garage No. 12 should be disposed off and the major part of the proceeds therefrom should be used to set up a trust fund to finance scholarships for meritorious and needy students studying in Class XI of Raisina Bengali Higher Secondary School, New Delhi. The trustee appointed for such trust appointed by the Will have been named in paragraph 3 above.
The trustees are also free to associate educationists connected with school education and/or with Raisina School in administering the scholarships.
2. Mr. Bir Singh, who was employed with the testator till the time of her death at 50, Shivalik Apartments, Alaknanda, New Delhi has been bequeathed absolute possession of the servant's quarter No. 5216. Mr Bir Singh has also been bequeathed a token amount of Rs. 10,000/ in cash.
3. Mr. Babu Lal, who was resided at Servant's quarter No. 8, Shivalik Apartments, who was employed with the testator as her chauffeur has been bequeathed a token amount of Rs. 20,000/ in cash.
4. Ms. Kamlesh, who resides at Subhash Camp C471, who was employed by the testator as an attendant cum nurse for several years has been bequeathed a token sum of Rs. 20,000/ in cash.
PC No. 8/2011 Page 4 of 12 Dr. Deepankar Roy vs. State & Ors.
5. Token of bequests of cash or of movables to the persons named in the Will, they are respondents (other than respondents no. 1). 1.3 The Will (Ex. PW1/1) does not appoint any person to execute the Will, the petitioner duly nominated in Will is the only living person willing to execute the Will and the other persons nominated as trustees (i.e. Prof. Kamal K. Datta, Shri Santanu Datta) in the Will are either not willing or incapable of executing the Will, therefore, petitioner Dr. Deepankar Roy requests that he may be appointed as Administrator of the properties and the petition may also be treated under section 254 of the Indian Succession Act, 1925 for appointment of petitioner as Administrator of the Will or the petitioner may be appointed by the Court as an executor for Probate of Will left by Mrs. Uma Roy Choudhary. The petition is signed and verified by the petitioner Dr. Deepankar Roy as well as it has also been verified by one of the attesting witness Shri V.K. Gupta (PW1) to the Will (Ex. PW1/1).
2.1 (Respondent No. 1 / State) - The citation was published in the Statesman dated 08.02.2014, inviting the general public to participate in the proceedings, however, none has come forward.
PC No. 8/2011 Page 5 of 12 Dr. Deepankar Roy vs. State & Ors.
2.2 (Plea of other Respondents No. 2 to 7 & 9 to 15) - The respondents no. 2 and 3, who have been named in the Will, to be trustees of the trust fund to be created to finance the scholarships, have filed their reply as well as No Objection to the petition filed by the petitioner Dr. Deepankar Roy, who is also named in the Will to be one of the trustee of the trust fund. The other respondents no. 4 to 7 and 9 to 15 had also filed their individual replies, which are also in the form of No Objection to allow the petition filed by Dr. Deepankar Roy. To say, such respondents have no reservations except to allow the petition.
2.3 (Plea of Respondent No. 8) - Initially, in the array of respondents, name of Shri Bir Singh was not mentioned but of other respondents visavis in the array of respondents, there was clerical mistake that Srl. No. 8 / respondent no. 8 was not mentioned, consequently, Shri Bir Singh filed his written statement without narrating his serial number. Today, this inconsistency is removed by treating him as respondent no. 8, as he was called in the Court by order in his name. Therefore, the reply is treated of Bir Singh as he is respondent no. 8.
There are three folds contentions, firstly, he has been a beneficiary in the Will, he deserves the property bequeathed in his name, as PC No. 8/2011 Page 6 of 12 Dr. Deepankar Roy vs. State & Ors.
he was old and loyal servant of the testatrix Mrs. Uma Roy Choudhary, she has expressed her clear intentions in her Will to give the property to respondent no. 8. Secondly, he has received cash of Rs. 10,000/. However, thirdly, the petitioner is required to establish his plea mentioned in the petition.
During the pending of petition, some dispute had arisen in respect of placing of lock on garage No. 12, Shivalik Apartments, Alaknanda, however, the same was settled; to this effect statement of petitioner and of Bir Singh was recorded on 20.09.2013. Then more proceedings took place inclusive of recording the statement of respondent no. 2 and of petitioner and the same were dealt by order dated 05.01.2013, when restrained order was directed against respondent no. 8, his wife, family members from entering the garage No. 12 visavis to remove the lock.
Evidence
3. The petitioner has been given opportunity to establish the petition. The petitioner got examined PW1 Shri V.K. Gupta, aged about 71 years, S/o Shri Girdhari Lal, an attesting witness to Will dated 26.10.2004, he also got examined PW2 Shri Ashok K. Goyal, aged about 68 years, S/o Shri P.S. Goyal, another attesting witness to Will dated 26.10.2004. The petitioner / PW3 Dr. Deepankar Roy, aged about 60 years, S/o Late J.M. Roy, also PC No. 8/2011 Page 7 of 12 Dr. Deepankar Roy vs. State & Ors.
entered in the witness box. Whereas none of the witnesses were cross examined.
Final Hearing
4. At the stage of final hearing, Ms. Radhika, Ld. Counsel for petitioner, Shri Puneesh Garg, Ld. Counsel for respondent no. 8 / Bir Singh and Shri Akshay Sharma, Ld. Counsel for respondents no. 2 to 7 and 9 to 15, presented their contentions. Ld. Counsel for petitioner requests that it is a simple case, there is no legal impediment for grant of Probate or Letter of Administration, since the other two persons proposed in the Will as trustees for the trust fund to be created, have not come forward and they have also filed No Objection, in terms of Section 254 of the Indian Succession Act, Dr. Deepankar Roy may be appointed either as Executor or Administrator of the Will. Ld. Counsel for respondent no. 8 / Bir Singh requests that he is one of the beneficiary in the Will.
FINDINGS 5.1 The contentions are assessed in the light of statutory provisions of law, particularly Section 276, 278, 222 and 254 of the Indian Succession Act, 1925. In order to decide the issue arisen in petition, relevant provisions are reproduced hereunder : PC No. 8/2011 Page 8 of 12 Dr. Deepankar Roy vs. State & Ors.
Section 222 of the Act - Probate only to appointed executor (1) Probate shall be granted only to an executor appointed by the Will.
(2) The appointment may be expressed or by necessary implication. Illustrations
(i) A wills that C be his executor if B will not. B is appointed executor by implication.
(ii) A gives a legacy to B and several legacies to other persons, among the rest of his daughterinlaw C, and adds "but should the withinnamed C be not living I do constitute and appoint B my whole and sole executrix". C is appointed executrix by implication.
(iii) A appoints several persons executors of his Will and codicils and his nephew residuary legatee, and in another codicil are these words "I appoint my nephew my residuary legatee to discharge all lawful demands against my will and codicils signed of different dates".
The nephew is appointed an executor by implication. Section 254 of the Act - Appointment, as administrator, of person other than one who, in ordinary circumstances, would be entitled to administration (1) When a person had died intestate, or leaving a Will of which there is no executor willing and competent to act or where the executor is, at the time of the death of such person, resident out of the State, and it appears to the Court to be necessary or convenient to appoint some person to administer the estate or any part thereof, other than the person who, in ordinary circumstances, would be entitled to a grant of administration, the Court may, in its discretion, having regard to consanguinity, amount of interest, the safety of the estate and probability that it will be properly administered; appoint such person as it thinks fit to be PC No. 8/2011 Page 9 of 12 Dr. Deepankar Roy vs. State & Ors.
administrator.
(2) In every such case letters of administration may be limited or not as the Court thinks fit.
5.2 By reading the record along with statement of witnesses (PW1, PW2 and PW3), together, the version of witnesses remained unchallenged and unrebutted. Both the attesting witnesses, one of them also verified the petition, have narrated specifically that Smt. Uma Roy Choudhary executed and signed the Will in their presence and they also subscribed in the presence of each other. Therefore, the petitioner has proved the Will, it was executed and signed by Smt. Uma Roy Choudhary and that it was executed valid. She died on 19.01.2010, which is an undisputed fact. 5.3 Whereas the Will does not appoint anyone as an executor of the Will. Section 2(c) of the Act, 1925 defines "executor", which is noninclusive definition, and by reading definition 2(c) along with Section 222 of the Act, 1925 (reproduced hereinabove), concludes that an executor can be appointed by the testator of Will, it may be in expressed term or by necessary implication; on plain reading of Will (Ex. PW1/1), there is no appointment of executor either expressly or otherwise. Therefore, the petitioner cannot be appointed executor by the Court.
PC No. 8/2011 Page 10 of 12 Dr. Deepankar Roy vs. State & Ors.
5.4 However, Section 254 of the Act, 1925 (reproduced herein above) provides that if the circumstances so permit, the Court may appoint an administrator for safety of Estate or its administration properly. The Will (Ex. PW1/1) is not in respect of universal legatee but there are number of beneficiaries, whom either immovable property has been bequeathed or movable properties have been bequeathed visavis the residential premises is to be disposed off and major part of such proceed is to be used to set up a trust fund to finance scholarship for meritorious and needy students studying in Class XI in Raisina Bengali Higher Secondary School, New Delhi. The respondents no. 2 and 3, who had filed their replycumNo Objection, have also been named in the Will, however, they have not expressed their willingness to be administrator but the petitioner, who is nephew of Smt. Uma Roy Choudhary, is willing to administer the Will. Therefore, the situation is covered by Section 254 of the Act, 1925. The petitioner Dr. Deepankar Roy is appointed as ab Administrator to administer the estate as per Will dated 26.10.2004 (Ex. PW1/1).
5.5 The Will names beneficiaries in respect of immovable properties or bequest of cash or of valuables / movables, already mentioned in paragraph 1.2, above, their names find mentioned in the Will. PC No. 8/2011 Page 11 of 12 Dr. Deepankar Roy vs. State & Ors.
6. In view of the detailed discussion and conclusion drawn in paragraph 5, above, the petition under section 276 r/w Section 254 of the Indian Succession Act, 1925 is allowed as the petitioner has succeeded to establish it and he is held entitled for grant of Letter of Administration to administer the estate of deceased Mrs. Uma Roy Choudhary as per her Will dated 26.10.2004 (Ex. PW1/1).
7. The Letter of Administration will be issued with copy of Will (Ex PW1/1) annexed on the prescribed form but it would be subject to - (i) filing of appropriate of stamp / Court fee; (ii) he will furnish AdministrativecumSurety Bond; vis a vis subsequently, (iii) he will furnish full and true inventory of the said property and credits and exhibit the same in this Court within six months from the date of grant on prescribed Form No. 178 and; (iv) to render true account of said property and credits within one year on prescribed Form No.
179. Accordingly, the petition stands disposed off.
File be consigned to record room.
Announced in the open Court (INDER JEET SINGH)
on 06 Jayaistha, Saka 1936
th
Additional District Judge02 (South),
Saket, New Delhi / 26.05.2014
PC No. 8/2011 Page 12 of 12
Dr. Deepankar Roy vs. State & Ors.
PC No. 8/2011
26.05.2014
Present : Proxy counsel for petitioner.
None for State / general public / respondent no. 1.
Proxy counsel for respondents no. 2 to 7 and 9 to 15 (each of them have filed their individual replycumNo Objection with their respective affidavits).
Proxy counsel for petitioner no. 8, he contested the petition and filed written statement.
Earlier amended memo of parties is filed, however, it is not correct. Moreover initially, in the array of respondents, name of Shri Bir Singh was not mentioned but of other respondents visavis in the array of respondents, there was clerical mistake that Srl. No. 8 / respondent no. 8 was not mentioned, consequently, Shri Bir Singh filed his written statement without narrating his serial number. Today, this inconsistency is removed by treating him as respondent no. 8, as he was called in the Court by order in his name. Therefore, the reply is treated of Bir Singh as he is respondent no. 8. The amended memo of parties may be filed showing the said Shri Bir Singh as respondent no. 8, the previous amended memo of parties, which are not correct would not constitute part of record; the Junior Judicial Assistants are PC No. 8/2011 Page 13 of 12 Dr. Deepankar Roy vs. State & Ors.
directed to remove the said memo of parties and replace it at the end.
None from the office of SDM, Kalkaji / Alaknanda despite repeated notices and even show cause notice by Ld. Predecessor and by the present Court to furnish the valuation report of property, however, no assistance has been received nor any report.
Vide separate judgment, announced today, the petitioner's petition under section 276 r/w Section 254 of the Indian Succession Act, 1925 is allowed, however, the appropriate certificate on Schedule VII of Letter of Administration will be issued on furnishing appropriate Stamps / Court fee as per the Court Fee Act, 1870 within two months as well as Administrative Bond with sound Surety Bond, so that properties of deceased may be administered as per law. Consequently, the petitioner may get the property valued from approved valuer and the same will be furnished to the Court.
Accordingly, the petition stands disposed off.
File be consigned to record room.
(Inder Jeet Singh)
ADJ02 (South), Saket
N New Delhi / 26.05.2014
PC No. 8/2011 Page 14 of 12