Delhi District Court
Smt. Sarla Sharma vs The State (Govt. Of N.C.T. Delhi) on 2 March, 2016
IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
DISTRICT JUDGE-02, WEST, DELHI.
PC No. 185/10/08
Unique Case ID No. 02401C0160302010
Smt. Sarla Sharma,
W/o Late Sh. Vijay Sharma,
R/o 1, G.T. Karnal Road, Delhi .....Petitioner
Versus
THE STATE (GOVT. OF N.C.T. DELHI) ....Respondents
Date of institution of the case : 14.05.2008
Date of reserving of judgment : 20.02.2016
Date of pronouncement of judgment : 02.03.2016
JUDGMENT
1. A petition under Section 278 of Indian Succession Act, 1925 for grant of letter of administration in respect of premises bearing no. 1, G.T. Karnal Road, Delhi measuring 7 Bighas 11 Biswas situated in Khasra No. 409 and 410/1, Village Malikpur Cantt., filed by petitioner.
2. In brief the facts are that the petitioner is the wife of deceased Sh. Vijay Sharma, who was the son of late Sh.Raja Ram Sharma. It is stated that late Sh. Raja Ram Sharma (hereinafter referred to as 'the deceased') expired in October, 1978 leaving behind Vijay Sharma as well as Santosh Sharma as his legal heirs. It is stated that the deceased had executed Will dated 02.01.1975 thereby bequeathed entire property to his wife Smt. Sumitra Devi and PC No. 185/10/08 Sarla Sharma vs. The State 1/14 after her death, the entire property was bequeathed in the name of Sh. Vijay Sharma. Unfortunately, Smt. Sumitra Devi expired in 1975, whereby entire property came into the share of Sh. Vijay Sharma. Sh. Vijay Sharma unfortunately died on 29.06.1983 leaving behind legal heirs as per Annexure -A i.e. Smt.Sonu Maan, Smt. Pooja Tandon, Smt. Shweta Gupta and Sh. Sanjay Sharma.
3. It is stated that deceased Sh. Raja Ram Sharma, Smt. Sumitra Devi and Sh. Vijay Sharma, all through residents within the jurisdiction of this court and the property is also situated within the jurisdiction of this court.
4. It is stated that the deceased Sh. Vijay Shrama died intestate and petitioner being the wife and governed by the Daya Bhaga School of Hindu Law. Therefore, petitioner being one of the legal heirs as per Schedule -I and above said property is in the custody and possession of the petitioner herself and daughters, therefore, entitled for letter of administration being the beneficiary of the deceased.
5. It is prayed that this Court may kindly be pleased to grant letter of administration to petititioner in respect of property of deceased Sh. Vijay Sharma bearing No. 1, G.T. Karnal Road, Delhi, measuring 7 Bighas 11 Biswas, Village Malikpur Cantt., Delhi.
6. Notice of the petition issued to all legal heirs of the deceased and to State through Chief Secretary and Collector of the area. The citation also issued in daily newspaper 'Times of India' dated 09.06.2008.
PC No. 185/10/08 Sarla Sharma vs. The State 2/14
7. The valuation report in respect of the suit property bearing 1, G.T. Karnal Road, Delhi measuring 7 Bighas 11 Biswas (Village Malik Pur Cantt., Delhi) was also called from the concerned Collector and accordingly, the said valuation report has been filed on behalf of the SDM, Model Town, Delhi and the value of the said property has been assessed to the tune of Rs.16,59,00,167/- (Rupees sixteen crores fifty nine lacs one hundred sixty seven only).
8. LRs of deceased Sh. Vijay Sharma, namely, Smt.Sonu Maan, Smt. Pooja Tandon, Smt. Shweta Gupta and Sh. Sanjay Sharma filed 'No Objection Certificate' in favour of petitioner on 29.07.2008.
9. Smt. Santosh Sharma, Objector, daughter of deceased Sh. Raja Ram Sharma filed objections. In the preliminary submissions, it is stated that the deceased Sh. Ram Ram Sharma was recorded owner of land measuring 7 Bighas 11 Biswas forming part of Khasra Nos. 409 (6-16) and 410/1 (0-15) situated in Village Malikpur Chhawni, Delhi popularly known as 1, G.T. Karnal Road, Delhi. The said land was acquired by virtue of Certificate of Sale dated 31.08.1961 issued by Managing Officer, Jamnagar House, New Delhi. The deceased Sh. Raja Ram Sharma challenged the acquisition proceedings under Section 4 and 6 of the Land Acquisition Act by filing writ petition No. 581-D/1963, whereby Hon'ble High Court of Delhi vide order dated 16.12.1970 quashed the notifications. The Delhi Administration aggrieved by the said order filed appeal LPA No. 109/1971 but the same was dismissed by Division Bench of Hon'ble High Court vide order PC No. 185/10/08 Sarla Sharma vs. The State 3/14 dated 31.03.1980 and the order attained the finality. The Delhi Administration has not challenged the order by filing Special Leave Petition, therefore, it has become binding and has force of law.
10. It is stated that deceased Sh. Raja Ram died intestate on 29.10.1978 during the pendency of the proceedings before the Hon'ble High Court leaving behind Objector Smt. Santosh Sharma as only legal heir belong to Class -I legal heirs. The Objector approached the local revenue officials for mutation of the land and filed application dated 20.04.1999 along with documents with the revenue authorities. Thereafter, Objector as per legal advise filed CWP No. 1830 of 2000 titled Smt. Santosh Sharma Vs. Union of India, Lt. Governor, Delhi Development Authority and Land Acquisition Collector. However, same was dismissed vide order dated 28.11.2003. The Objector filed Special Leave Petition before the Hon'ble Supreme Court and same was admitted and leave was granted vide order dated 03.07.2006.
11. It is further stated that on 24.12.2007, son of Objector Sh. Pankaj Sharma obtained copy of Jamabandi/Khasra Girdawari in respect of land in question and surprised and shocked to know that the land in question has been illegaly got mutated in the revenue records in the name of the petitioner and her children by playing a calculated fraud upon the court as well as upon the Objector. The record further revealed that on the basis of false and frivolous application dated 24.12.2004, the petitioner' son Sh. Sanjay Sharma, claiming Sh. Vijay Kumar Sharma to be the PC No. 185/10/08 Sarla Sharma vs. The State 4/14 son and only legal heir of Sh. Raja Ram Sharma. The Objector aggrieved by the order of Tehsildar dated 17.02.2005 preferred an appeal before the Collector, Kanjhawala on 09.01.2008 and status quo order was passed by the Collector and the appeal is pending as on 02.09.2008.
12. It is stated that the petitioner and her children adopted unlawful means along with late Sh. Vijay Kumar Sharma to defeat the right, title of the Objector and deceased father Sh. Raja Rama Sharma. It is further stated that deceased Sh. Vijay Kumar Sharma S/o Late Sh. Thakur Das admitted on affidavit duly filed in court proceedings that he was son of late Sh. Thakur Das and in some cases Late Sh.Vijay Kumar Sharma had stated that late Sh. Raja Ram Shrama adopted him but without placing on record any adoption deed. The petitioner seeks by the present petition grant of Letters of Administration fraudulently by making false suggestions and concealing from the court material facts, especially the suit No. 666/85 titled Sarla Sharma W/o late Shri Vijay Kumar Sharma vs. MCD. The Objector further referred the other litigation in suit no. 130/78 titled Raja Ram Sharma S/p Pandit Ram Chand and Vijay Kumar Sharma s/o Pandit Thakur Das vs. MCD; Suit No. 158/79 (20.2.79): 483/79 (20.8.79): 247/80 (22.5.80) titled Vijay Kumar Sharma adopted son of late Thakur Dass, 1 G.T. Karnal Road, Delhi vs. MCD; Suit No. 666/85 titled Sarla Sharma w/o late Shri Vijay Kumar Sharma; Suit No. 253/76 titled Reliable Traders and Engineers vs. MCD/DESU.
PC No. 185/10/08 Sarla Sharma vs. The State 5/14
13. It is stated that Sh. Vijay Kumar Sharma s/o late Thakur Dass was the tenant of deceased Sh. Raja Ram Sharma. Photocopy of rent receipt filed on record. An application under Order 22 Rule 3 read with Section 151 CPC in a case pending before Sh. K.P. Verma, the then Rent Controller, Delhi filed on record, wherein affidavit of Sh. Vijay Kumar Sharma was annexed as deceased Sh. Raja Ram Sharma filed eviction petition against some tenants including Sh. Vijay Kumar Sharma. It is stated that the petitioner has moved the present petition only on 14.05.2008, pertaining to the property in question to defeat the claim of the petitioner. It is stated that petitioner has set up a false and forged document purportedly be the last Will and testament of Sh. Raja Ram Sharma. The petitioner has made this false document falsely knowingly it is false and intended that it should be treated and acted upon as genuine. The petitioner is silent on the title of the petitioner as the name of owner of Schedule is clearly misleading. It is stated that late Sh. Vijay Kumar Sharma - husband of petitioner persistently incited litigation for wrongful gain for himself and his family and wrongful loss for father of Objector. There is chain of action by the petitioner, Ms. Sarla Sharma, contemporaneous and successive, spread over a period of time, all of which are documented and from which it unmistakably emerges that she continues to act in a most fraudulent, corrupt and dishonest manner to deprive the fruits of inheritance to the Objector.
14. On merits, all the averments made in the petition are denied. It is stated that contents of preliminary objections be read. It is stated that petition is liable to be dismissed.
PC No. 185/10/08 Sarla Sharma vs. The State 6/14
15. Petitioner also filed reply to the Objections filed by the Objector Smt. Santosh Sharma, wherein he denied the objections of the Objector and reiterated the averments made in the petition.
16. Vide order dated 05.07.2010, my Ld. Predecessor framed the following issues:
1. Whether the Will dated 02.01.1975 executed by Sh. Raja Ram Sharma is his genuine, legal and valid Will duly executed in his sound disposing mind? OPP
2. Whether the petition filed is within the period of Limitation? OPP
3. Whether the petition is liable to be rejected in view of the preliminary objections raised by the respondent? OPR
4. Whether the period is entitled for Probate/ Letter of Administration on the basis of the Will dated 02.01.1975, as prayed for? OPP
5. Relief.
17. The petitioner has been granted opportunities to lead evidence to prove the case and the issue nos. 1, 2 & 4. However, petitioner failed to examine any witness and vide order dated 12.08.2013, petitioner's evidence was closed. Respondent examined RW1 Smt. Santosh Sharma.
18. I have heard Sh. Sh. Pankaj Sharma, Ld. Counsel for the respondent/Objector and petitioner was given liberty PC No. 185/10/08 Sarla Sharma vs. The State 7/14 to file written arguments. However, no written arguments filed on behalf of the petitioner. Though, the respondent/Objector has filed the written arguments also. I have perused the record and my findings on issues are as under:
ISSUE NOS. 1, 2 & 419. The onus of these three issues is on the petitioner. The petitioner has to prove that the Will dated 02.01.1975 executed by Sh. Raja Ram Sharma is genuine, legal and valid Will duly executed in his sound disposing mind and the petition is within limitation. Further, that the petitioner is entitled to probate/ letter of administration on the basis of above said Will. As per record, petitioner was granted time for three years for leading evidence. During this period, about 10 opportunities were granted but neither the petitioner appeared in the witness box nor filed her affidavit or affidavit of any witness nor examined any witness.
20. The law is well settled by the Hon'ble Supreme Court that Article 137 of Limitation Act is applicable in probate/ letter of administration cases. 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 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 PC No. 185/10/08 Sarla Sharma vs. The State 8/14 residuary clause is included providing limitation for other applications. Article 181 of the Limitation Act, 1908 being the residuary cluase 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 chage 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 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.
PC No. 185/10/08 Sarla Sharma vs. The State 9/14
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 confied 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.
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 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 PC No. 185/10/08 Sarla Sharma vs. The State 10/14 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.
21. Now applying the law laid down by Hon'ble Supreme Court in Kanvarjeet Singh Khandpur's case (Supra) and Krishan Kumar's Case (Supra), let us examine the present case. It is admitted as per record that deceased Sh.Raja Ram Sharma died on 29.10.1978 and the dispute between the parties arose in the year 1999 as per facts mentioned regarding the dispute before the Revenue Authorities. Hence, limitation for filing of letter of administration started in the year 1999. Now three years period expired in the year 2002. Therefore, the present petition is barred by limitation, which has been filed on 14.05.2008.
PC No. 185/10/08 Sarla Sharma vs. The State 11/14
22. Hence, in the absence of testimony of any witness, petitioner miserably failed to prove the issue nos. 1, 2 and 4, whose onus was on the petitioner. Hence, issue nos. 1, 2 & 4 are decided against the petitioner and in favour of the respondent.
ISSUE NO. 323. The Objector/respondent examined herself and proved affidavit Ex. RW1/A. She deposed that deceased Sh.Raja Ram Sharma died intestate on 29.10.1978 without executing any Will. She deposed that deceased Sh. Raja Ram Sharma gave away in adoption irrevocably late Shri Vijay Kumar Sharma to his uncle late Shri Thakur Dass. Therefore, late Sh. Vijay Kumar Sharma and his family has nothing to do with the deceased Sh. Raja Ram Sharma. She further deposed that she is the sole legal heir of the deceased. She further deposed that petitioner alleged a Will dated 02.01.1975, which is false and fabricated. She deposed that the petitioner willfully concealed the fact regarding civil suits bearing No. 130/78, 483/79, 271/76 and proved the certified copies of these proceedings ex. RW1/1 to RW1/5.
24. She further deposed that late Sh. Vijay Kumar Sharma was not in any manner legal heir of deceased Sh.Raja Ram Sharma or successor of property bearing no. 1, G.T. Karnal Road, Delhi, Khasra No. 409 and 410/1, Malikpur Chawani, Delhi. In the cross-examination, she deposed that certified copies filed along with the affidavit were issued on her instructions through Counsel. She denied the knowledge PC No. 185/10/08 Sarla Sharma vs. The State 12/14 of Will dated 02.01.1975. She admitted that the petitioner is her Bhabi and Sh. Vijay Kumar Sharma was adopted brother. She denied the suggestion that Sh. Vijay Kumar Sharma was adopted by Sh. Thakur Dass.
25. I have considered the written submissions of Objector Smt. Santosh Sharma filed on record. However, no written submissions filed on record by the petitioner despite opportunity granted.
26. The main objections of the respondent/Objector is two fold. Firstly, she objected that late Sh. Vijay Kumar Sharma was the legal heirs of deceased Sh. Raja Ram Sharma as he was adopted by one Sh. Thakur Dass. However, there is no document proved on record or witness examined to this effect that late Sh. Vijay Kumar Sharma was adopted son of Sh. Thakur Dass. Secondly, she objected that the Will dated 02.01.1975 is forged and fabricated. No witness examined to this effect and no document proved on record to establish that the alleged Will of the petitioner is forged, fabricated and not a genuine Will. Therefore, the Objector/ respondent also failed to prove that the petition is not maintainable in view of the objections taken by her. Hence, issue no. 3 is decided against the respondent and in favour of the petitioner.
ISSUE NO. 5 (RELIEF)
27. In view of findings on issue nos. 1, 2 and 4, the petitioner is not entitled for grant of letter of administration as prayed for. Hence, petition is dismissed. No order as to costs.
PC No. 185/10/08 Sarla Sharma vs. The State 13/14
28. File be consigned to Record Room.
Announced in the open court today the 2nd March, 2016.
(Sanjay Kumar) ADJ-02,West/Delhi 02.03.2016 PC No. 185/10/08 Sarla Sharma vs. The State 14/14