Delhi District Court
Mr. Satya Bhushan Kaura vs State on 31 January, 2012
IN THE COURT OF SH. A.K. CHAWLA : DISTRICT JUDGE
(NORTH) DELHI
PC 142/07
Unique Case ID No.02401C03962007
Mr. Satya Bhushan Kaura
S/o Late Shri Devki Nandan Kaura
R/o C15, New Krishna Park,
Delhi. ..... Petitioner
Versus
1. State
2. Mr. Subhash Chander Kaura
S/o Late Sh. Devki Nandan Kaura
R/o B49, New Krishna Park,
New Delhi.
3. Smt. Kailash Rani Kapoor
W/o Sh. Ram Parvesh Kapoor
R/o KG III/107, Vikaspuri,
New Delhi.
4. Smt. Raj Kumari Chawla
W/o Sh. Om Prakash Chawla
R/o J138, Vikaspuri,
New Delhi.
PC142/07 Page 1/12
5. Smt. Santosh Kumari Khular
W/o Sh. Ramesh Chand Khullar,
J202 Quality Gardenia, Chappal Bazar,
Kachiguda, Hyderabad 500027
Andhra Pradesh ..... Respondents
Date of Institution of the suit : 16.10.2007
Date of reserving the judgment : 23.01.2012
Date of pronouncement : 31.01.2012
JUDGMENT
Petitioner has filed the petition U/s 276 of the Indian Succession Act seeking Letters of Administration with respect to the Will dated 20.8.1980 purportedly executed by Sh. Devki Nandan Kaura (since deceased) hereafter referred to as 'the testator'.
2. Petition filed proceeds on the premise that the testator, who was the father of the petitioner and respondent Nos.2 to 5, died at Delhi on 27.8.1987, having executed a registered Will dated 20.8.1980 hereafter referred to as 'the said Will' and thereunder, the petitioner and the respondent No.2 only, were the beneficiaries. It is also averred that all the properties movable and immovable of the testator but for 150 equity shares of DLF Ltd. hereafter referred to as 'the said shares', stood settled/disposed off amongst the petitioner and the respondent PC142/07 Page 2/12 No.2 in terms of the said Will. It is then the case of the petitioner that as per the settlement between the petitioner and respondent No.2, the said shares had come to the share of the petitioner and the petitioner had the bonafide belief that the DLF Ltd. would permit change of name of the petitioner on the said shares of the testator, on simply submitting an affidavit alongwith the death certificate but when the petitioner applied for allotment of debentures to the existing share holders, DLF Ltd. vide letter dated 6.8.07 asked for obtention of the succession certificate. Hence, the petition.
3. Notice of the petition was published in the newspaper 'National Herald' edition 1.11.2007 and a copy of citation was also displayed on the notice board of the Court. None appeared from the general public. On being served, respondent Nos. 3 to 5 gave no objection to the grant of petition. Objections however, came to be filed on behalf of the respondent No.2. In the objections filed, respondent No.2 has not disputed the execution of the said Will but denying any settlement with respect to the said shares, which according to the objector were presently 6000 equity shares of DLF Universal Electric Ltd. bearing share certificate No.200161 for 750 PC142/07 Page 3/12 shares and 201307 for 5250 shares held by the testator, which have further accredited to 66000, has taken the plea that in and by virtue of the said Will, the petitioner is entitled to half of the said shares only and not the whole lot. It is also the plea of the objectorrespondent No.2 that he alongwith the petitioner was the universal legatee being the joint and absolute transferee of the said Will and had no objection whatsoever, if the legacies are allowed to be administered strictly in terms of the said Will and that, the case in hand was a fit case for issuance of Letters of Administration jointly in the names of the petitioner and the respondent No.2.
4. On the pleadings of the parties, the following issues came to be framed :
(i) Whether the petitioner is entitled to the grant of letter of administration, as prayed? OPP
(ii) Whether the petition is barred by limitation?
Onus placed on parties.
(iii) Relief.
2. In support of his case, petitioner examined himself as PW1; and PW2 Sh. K.K. Chopra and closed PE. Respondent No.2 examined PC142/07 Page 4/12 himself as RW1 and closed RE. Petitioner PW2 in his deposition by way of affidavit Ex.P1 deposed as averred to in the petition, which is not being repeated herein, for the sake of brevity. In his oral testimony, he also deposed that the said Will in original was markA and that, his father Devki Nandan Kaura was holding equity shares as mentioned in the schedule of properties Ex.PW1/A. He also deposed that his father Sh. Devki Nandan Kaura died on 27.8.1987 and his death certificate was Ex.PW1/C. He also deposed that his father was holding 150 equity shares of DLF Ltd. and the shares certificates were Ex.PW1/D1 to D3 and that, he had applied for transfer of shares in his name after the death of his father and that, the letter sent by DLF Ltd. dated 6.8.2007 was Ex.PW1/E. Petitioner PW1 as such, deposed to prove the contents of the petition. PW2 in his deposition by way of affidavit Ex.P2 deposed that Late Devki Nandan Kaura was known to him since 1973 and he had expressed his desire to make a Will and that, on his request, he Sh. Krishan Gopal S/o Sh. Bihari Lal and Sh. Charanjeet Khanna had accompanied Devki Nandan Kaura to the office of the SubRegistrar, Kashmere Gate, Delhi on 20.8.1980 and there, Sh. Kaura had executed a Will in the office of the SubRegistrar in his presence and in their presence. Then, he also deposed that PC142/07 Page 5/12 Devki Nandan had signed the Will in his presence and in the presence of other witnesses and at that time, Sh. Devki Nandan Kaura was in good physical condition and sound mind and he had made the Will voluntarily. In his such oral testimony, he also deposed that Devki Nandan Kaura executed the Will on 28.8.1980 in his presence and in the presence of Sh. Krishan Gopal, Sh. Charanjeet Khanna and one Advocate and that the Will was firstly signed by Sh. Devki Nandan Kaura and the original Will was Ex.PW2/1, bearing signatures of Sh. Devki Nandan Kaura at pt.A. He then also deposed that thereafter, Sh. Krishan Gopal signed the Will on pt.B and he signed the Will on pt.C and the signatures of Sh. Charanjeet Khanna were at pt.D and that of Sh. Kesar Singh, Adv. were at pt.E. He also deposed that Sh. Devki Nandan Kaura signed the Will after understanding the contents thereof in his presence and in the presence of Sh. Krishan Gopal, Sh. Charanjeet Khanna and Sh. Kesar Singh, Adv. and that, they all signed on the Will in the presence of each other and that, thereafter, the Will was got registered in the office of the SubRegistrar. PW2 as such, deposed as an attesting witness to the Will and proved the said Will Ex.PW2/1. Here itself, it may be mentioned that the testimony of the said attesting witness PW2 is not challenged to any extent, though the PC142/07 Page 6/12 opportunity was granted to respondent No.2.
3. Respondent No.2 examined himself as RW1 and in his deposition by way of affidavit Ex.P3 deposed that his father Late Devki Nandan Kaura had made the Will propounded by the petitioner and that, he was entitled to half of the shares of DLF Ltd. as detailed in the schedule attached in the petition and the other equal and half share was to go to the petitioner and that, he was entitled for certificate alongwith the petitioner.
4. I have heard the Ld. counsel for the parties and perused the record carefully.
5. My issuewise findings are as follows :
ISSUE NO.1 :
Whether the petitioner is entitled to the grant of letter of administration, as prayed? OPP Due and valid execution of the said Will Ex.PW2/1 is not disputed by anyone. In compliance of the statutory provisions of Sec.68 of the Indian Succession Act, petitioner has also examined one of the attesting witness to the Will as PW2, who has deposed for the PC142/07 Page 7/12 due execution of the said Will by the testator. His deposition has not only gone wholly unchallenged, none of the parties, as said earlier, has even extended any challenge thereto. Will Ex.PW2/1 is as such, proved to be the genuine Will of the testator.
In and by virtue of the said Will Ex.PW2/1, the testator bequeathed all his movable and immovable properties in favour of his sons, who are the petitioner and the respondent No.2, in equal shares. Undisputedly, but for the said shares, the petitioner and the respondent No.2, who are the beneficiaries under the said Will, have already settled/disposed off all other movable and immovable properties left behind by the testator but for the said shares. The testator died way back in August, 1987 and the petition is filed in October, 2007 i.e. after more than 20 years of the demise of the testator, other estate of the testator having been already settled/disposed off. Petition as such, is filed for seeking grant of Letters of Administration limited to the said shares, which is only a part of the unadministered estate of the testator. Petitioner claims that as per the settlement between the petitioner and his brother, who is the respondent No.2, the said shares had come to his share but that is disputed to, by the respondent. Any such dispute, cannot be undertaken to be decided by this Probate PC142/07 Page 8/12 Court. Suffice to say, letters of administration do not confer title but only give right to administer. Under the said Will Ex.PW2/1, both the universal legatees are the beneficiaries in equal shares. It is however, not in dispute that it was the petitioner, who has been in possession of the share certificates, applied for allotment of debentures against the said shares but his request was not exceeded to, in the absence of a succession certificate and on the happening of such an event, the petitioner has approached this Court for seeking the Letters of Administration in respect of the said Will. Objector on his part but for asserting his equal right in the said shares and pressing for issuance of joint Letters of Administration, has not taken any interest either for the transfer of the shares or for any right arising thereupon. Even on an effort made for resolution of differences / dispute amongst the parties, they were referred for mediation, but that also failed. It is clear from the totality of the facts and circumstances that the petitioner and the respondent No.2 cannot act jointly and therefore, grant of Letters of Administration to them jointly, will only do more harm than good. Suffice to say, on account of the differences between the petitioner and the respondent No.2, as referred to in the letter Ex.PW1/E of DLF Ltd., they might would have lost the right to have even the debentures PC142/07 Page 9/12 offered by the company. In 1923 Patna 348 (2) Miss. C. Stoney Vs. Miss. M. Stoney, relied upon by the ld. counsel for the petitioner, it was held as under :
"It is well established according to the English cases that the Court should prefer a sole to a joint administration and even where several persons stand in the same degree of kinship to the deceased, it is the rule to select one only, the selection being made according to certain recognized principles. The interest of the estate which has to be administered and the interests of the parties entitled thereto must be primarily looked to and, other things being equal, a person with business experience and capacity will be preferred to one who has none. A son as a rule will be preferred to a daughter and where none of the usual tests can be applied, the Court frequently appoints the applicant who is first in the field. Where the applicants for administration are quarrelling between themselves and are antagonistic to each other, the administration of the estate is likely to suffer. As they must act jointly, one of them, if obstinate, could defeat the proper administration of the estate. This has also undoubtedly been held to be the practice in this country where administration has frequently been refused to more than one person even where the claims by reason of kinship are equally entitled to it."
The abovesaid proposition of law was followed in the subsequent judgment after the passing of the Indian Succession Act, PC142/07 Page 10/12 1925, in Dinabai Behramji Gonda Vs. Motibai Burjorji Chhor 1941 Bombay Law Report 770.
Ld. counsel for the respondent No.2 on his part however, contended that the petitioner was asserting right to the said shares and in the event, the Letters of Administration are granted in his favour only, it is likely to subject the parties to another round of litigations. Be that as it may, in my considered view, in the given facts and circumstances, it is not desirable to grant joint administration of the said shares to the petitioner and respondent No.2, who are on crossroad.
In view of the foregoing, I am of the considered view that the petitioner is the fit person to be granted the Letters of Administration of the said shares with the Will Ex.PW2/1. Issue in hand is therefore, answered in the affirmative.
ISSUE NO. 2 :
Whether the petition is barred by limitation?
Onus placed on parties.
The said Will is not disputed by any of the parties. Filing of the petition is the resultant effect of the letter dated 6.8.2007 Ex.PW1/E of DLF Ltd. asking the petitioner for seeking succession PC142/07 Page 11/12 certificate/probate of Will/Letter of Administration etc. from the Court. Petition has come to be filed on 16.10.2007. In AIR 2008 SC 2058 Kunwarjeet Singh Kandpur Vs. Kirandeep Kaur & Ors., the Hon'ble Supreme Court has held that the application made under the Indian Succession Act was covered under Art. 137 of the Limitation Act. It was so held by the Hon'ble Supreme Court in the subsequent judgment in IV (2009) SLT 72 Krishan Kumar Sharma Vs. Rajesh Kumar Sharma. Art. 137 of the Limitation Act squarely applies to the probate petition, is therefore, Res integra. In the case in hand, the right to apply for the Letters of Administration arose on the receipt of the letter dated 6.8.2007 Ex.PW1/E. Petition was filed on 16.10.2007 and thereby, it is within limitation. In view of the foregoing, issue in hand is answered in the negative.
RELIEF :
Letters of Administration be issued in favour of the petitioner, with the copy of the Will dated 20.8.1980 Ex.PW2/1 on furnishing requisite court fee and executing surety/administration bond.
Announced in the open Court (A.K. Chawla)
on 31st day of January, 2012 District Judge(N)/Delhi
PC142/07 Page 12/12