Delhi District Court
Kamlesh vs State on 21 March, 2018
IN THE COURT OF DHEERAJ MOR: ACJcumCCJcumARC
(SOUTHWEST): DWARKA COURTS: NEW DELHI.
Succession Case32/16
DLSW030008512016
Kamlesh
W/o Omveer Singh
Gali no.9, Mahavir Enclave,
Part1, Palam South West,
Delhi110045.
Being Guardian of late Ashok Kumar
.............Petitioner
vs.
1.State
2. Sunita W/o Ashok Kumar
D/o Kishan Singh
R/o Village Bagana, PS Chandapa
Distt. Hathras, UP, India.
3. Cambata Aviation Pvt. Ltd.
IGI Airport Terminal II, New Delhi110037.
(Performa Party).
...........Respondents
Petition U/s 372 of Indian Succession Act for grant of
Succession Certificate in respect of debts and securities of
deceased Ashok Kumar.
Date of Institution : 18.07.16
Date of Reserving Judgment : 20.03.18
Date of Judgment : 21.03.18
JUDGMENT:
1. The present petition has been filed by the petitioner for grant of Succession certificate U/s 372 of Indian Succession Act, 1925 (herein after referred to as the Act), in respect of debts and securities of deceased Sh. Ashok Kumar.
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2. The State, Sunita and Cambata Aviation Pvt. Ltd. IGI Airport Terminal II, New Delhi110037, have been impleaded as respondents.
PETITION:
3. It has been averred by the petitioner that Sh. Ashok Kumar died on 04.02.16 in Delhi. It is further averred that deceased was the resident of Palam, New Delhi, which falls within the jurisdiction of this court. It is further averred that deceased Sh. Ashok Kumar got married to respondent no.2 and thereafter, his wife deserted him and left the matrimonial house about 13 years prior to his death. She went back to her hometown alongwith all her istridhan. It is further averred that there were several matrimonial disputes between the deceased and his wife.
4. It is further averred that in January 2016, deceased executed a Will dated 20.01.2016 in favour of the petitioner. It is further averred that deceased was survived by only one class1 legal heirs i.e respondent no.2 (wife of the deceased). However, vide aforesaid Will, he debarred/ excluded respondent no.2 from his all debts and securities and bequeathed the same in favour of the petitioner.
5. Notice of the petition was ordered to be published in newspaper and accordingly publication was done in newspaper titled as "Veer Arjun" dated 20.10.16, but none appeared on behalf of public at large, to raise any objections for grant of succession certificate in favour of petitioner.
6. However, respondent no.2 has filed the written statement and objected to the issuance of succession certificate in favour of the petitioner. Respondent no.2 has contended that the Page no.2 of 9 Kamlesh vs. State & ors.
SC32/16 said Will is forged and fabricated. She has contended that she is the sole surviving class1 legal heir of the deceased. She has admitted that there were matrimonial disputes between her and the deceased. However, main bone of contention for the said disputes was the petitioner. It is further contended that an order for maintenance of Rs. 1,000/ per month was passed by ld. AJM Sadabad Hathras, UP in her favour and against the deceased, which is recoverable from movable or immovable property of the deceased. Thus, she has contended that only she is entitled to the debts and securities of the deceased and not the petitioner.
EVIDENCE:
7. In petitioner evidence, three witnesses have been examined.
7.1. PW1 is petitioner Kamlesh. She has deposed that she is claiming job benefits of her brother for being his nominee and beneficiary of the Will of her brother. She has tendered the documents filed with the petition i.e letter dated 10.11.1995 of appointment with respondent no.3 of late Sh. Ashok Kumar as Ex.PW1/1 (three pages)(OSR), confirmation letter dated 01.05.1996 issued by respondent no.3 in favour of late Sh. Ashok Kumar as Ex.PW1/2(OSR), deed of divorce dated 24.11.1998 written by respondent no.2 leaving the matrimonial home as Ex.PW1/3 (OSR), photocopy of certified copy of order dated 16.11.2007 is Mark C (09 pages), copy of FIR no. 62/09 dated 20.06.2009 (three pages) is Mark D, Will dated 20.01.16 is Ex.PW1/4 (OSR), death certificate dated 14.02.16 of late Sh. Ashok Kumar is ExPW1/5 (OSR), Election ID of the petitioner is Ex.PW1/6 (OSR), salary slip of late Sh Ashok Kumar for the month of September 2015 is Mark E. Page no.3 of 9 Kamlesh vs. State & ors.
SC32/16 She was partly cross examined by ld. Counsel for the respondent no.2. The same was deferred. However, the same could not concluded as respondent no.2 stopped appearing in the court. Consequently, she was proceeded ex parte vide order dated 23.08.20.17.
7.2. PW2 is Sh. Raju Joshi, Social Security Assistant, Employees Provident Funds Organization, Dwarka, Sector23, New Delhi. He has brought the attested copies of Form no.9 and member ledger of deceased Sh. Ashok Kumar and the same are Ex.PW2/A & Ex.PW2/B (colly.15 pages) respectively. As per record, balance amount of Employee (EE) is Rs.1,56,365/ and Rs. 46,344/ of the Employer (ER) (total Rs. 2,02,709/) as on 16.03.2018, which is shown in document Ex.PW2/B(colly.15 pages). 7.3. PW3 is Rahul Raghav S/o Sh. Om Veer Singh Raghav R/o RZH12A, Gurudwara Road, Gali no.9, Mahavir Enclave, Part1, Palam South West, Delhi. He is an attesting witness of the Will dated 20.01.2016 of the deceased Ashok Kumar. Its copy is already Ex.PW1/4 (OSR). He saw and compared the original Will with Ex.PW1/4 and deposed that ExPW1/4 is the true photocopy of the original Will. He has further deposed that deceased had signed and put his thumb impression on the said Will in his presence after understanding the contents of the Will from the Lawyer. He identified the signatures and the thumb impression of deceased at point A & B respectively on the said Will. He has also identified his signature on the said Will at point C. He has further deposed that the other witness namely Gainda Singh also signed on the said Will in his presence and he also identified his signature on the said Will at point D. Thereafter, petitioner evidence was closed.
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8. Further, in respondent evidence, only one witness has been examined.
8.1. RW1 is Sh. Ravinder Singh Dagar, Officer Human Resources, Vasant Square Mall, Unit 9 & 9A, 3rd Floor, Vasant Kunj, New Delhi. He has tendered his reply dated 24.11.16 as Ex. RW1/1. He has also tendered the copy of declaration and nomination form under Employees Provident Funds and Employees Pension Scheme of late Ashok Kumar as Mark A wherein the petitioner is the nominee, copy of letter from the petitioner to respondent no.3 requesting after job benefits as Mark B. He has also brought the reply sent by respondent no.3 to the petitioner dated 01.03.16 and the same is Ex.RW1/2. His examination was deferred for the want of original documents. However, the same could not be concluded as thereafter, he remained untraceable. Accordingly, respondent evidence was closed.
ARGUMENTS, APPREICIATION OF EVIDENC & REASONS:
9. I have heard the arguments and perused the material on record carefully.
10. In Madhvi Amma Bhawani Amma & Ors. Vs. Kunjikutty Pillai Meenakshi, AIR 2000 SC 2301, 2000 (3) ALT 35 SC, 2001 (49) BLJR 813, it was held as under:
" The enquiry in proceedings for grant of succession certificate is to be summary, and the Court, without determining questions of law or fact, which seem to it to be too intricate and difficult for determination, should grant the certificate to the person who appears to have prima facie the best title thereto. In such cases the Court has not to determine definitely and finally as to who has the best right to the estate. All that it is required to do is to hold a summary enquiry into the right to the Page no.5 of 9 Kamlesh vs. State & ors.
SC32/16 certificate, with a view, on the one hand, to facilitate the collection of debts due to the deceased and prevent their being timebarred, owing (for instance) to dispute between the heirs inter se as to their preferential right to succession, and, on the other hand, to afford protection to the debtors by appointing a representative of the deceased and authorising him to give a valid discharge for the debt. The grant of a certificate to a person does not give him an absolute right to the debt nor does it bar a regular suit for adjustment of the claims of the heirs inter se".
11. From the oral and documentary evidence on record, my prima facie findings are as under: 11.1. The deceased was the resident of Mahavir Enclave, Palam Colony, New Delhi, which is reflected from his death certificate proved as Ex.PW1/5(OSR). It falls within the jurisdiction of this court.
11.2. The deceased had expired on 04.02.16 leaving behind only one surviving class1 legal heir i.e Respondent no. 2. Petitioner is real sister of the deceased. Admittedly, she is not a class 1 legal heir of the deceased. The sole point of contention is whether the deceased died intestate or not. If it is proved that he died intestate, respondent no.2 shall be entitled to succeed his debts and securities. However, if it is proved otherwise, then the same shall be succeeded by the beneficiary of the testament/ Will of the deceased. PW1 has testified that the deceased Ashok Kumar executed a Will dated 20.01.16 Ex.PW1/4 in her favour. In the said Will, he has bequeathed all his service benefits in respondent no.3 company including gratuity, PF, leave encashment, pension in favour of the petitioner. Thus, the succession of debts and securities mentioned in Page no.6 of 9 Kamlesh vs. State & ors.
SC32/16 the present petition is dependent upon the veracity of the said Will. 11.3. The petitioner has examined one of the witnesses of the said Will Ex.PW1/4 namely Rahul Raghav as PW3. He has identified his signature and signatures of the other witness namely Gainda Singh on the said Will. He has also identified the signatures and thumb impression of the testator/ deceased Ashok Kumar on the said Will. His testimony remained unimpeached and unrebutted. Therefore, there is no reason to doubt the credibility of the said witness. The said Will is an unregistered document. As per Section 18, Registration Act, 1908, the registration of a Will is optional. Hence, its non registration shall not effect its validity. As per Section 63 Succession Act 1925, the Will is required to be attested by atleast two witnesses and as per Section 68 Evidence Act, 1872, the Will can only be proved by examination of the attesting witnesses. In the instant case, one of the attesting witnesses of the said Will namely Sh. Rahul Raghav has been examined as PW3. He has not only identified his signatures on the said Will, but he has also identified and proved the signatures of the other attesting witness of the said Will namely Sh. Gainda Singh. Thus, it is proved that the said Will Ex.PW1/4 was executed by the deceased Sh. Ashok Kumar on 20.01.16 and it was attested by two witnesses. 11.4. The Hon'ble Apex Court in case titled as Janaki Narayan Bhoir vs. Narayan Namdeo Kadam, (2003) 2 SCC 91 has discussed in detail the manner and mode for proving of a Will. The relevant portion of the said judgment is reproduced as under: "To put in other words, if one attesting witness can prove execution of the will in terms of clause (c) of Section 63 viz. attestation by two attesting witnesses in the manner contemplated Page no.7 of 9 Kamlesh vs. State & ors.
SC32/16 therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will". 11.5 In view of the above discussion, there is no reason to doubt the veracity of the said Will Ex.PW1/4. The same stands duly proved. Hence, it is established that the deceased did not die intestate. Accordingly, the succession of debts and securities of the deceased shall be governed by the said Will and it shall not devolve upon the class 1 legal heirs of the deceased. In view of the contents of the said Will, the petitioner is entitled to succeed the debts and securities of the deceased as mentioned in the present petition. DEBTS & SECURITIES:
12. The deceased died leaving behind the following debts and securities as mentioned in the petition which is as follows:
(i).Rs.1,56,365/ of the Employee (EE) and Rs. 46,344/ of the Employer (ER) in his member ledger maintained with Employees Provident Funds Organization, Dwarka, Sector23, New Delhi as on 16.03.2018; and
(ii).Rs.2,75,380/ towards his Salary upto February 2016, Gratuity and leave encashment maintained with respondent no.3 / his employer i.e Cambata Aviation Pvt. Ltd., the details of which are proved as Ex. RW1/1.
Therefore, the total value of the securities held by the deceased for which succession certificate has been applied for, turns out to be Rs. 4,78,089/.
13. There is also no impediment U/s 370 of the Act to grant Succession Certificate with respect to debts and securities as Page no.8 of 9 Kamlesh vs. State & ors.
SC32/16 mentioned in the petition.
CONCLUSION:
14. In view of the aforesaid observations, this court holds that petitioner Kamlesh is entitled for grant of Succession Certificate U/s 373 of the Act in respect of the aforementioned securities having total value of Rs. 4,78,089/ (Rupees Four Lakhs Seventy Eight Thousand and Eighty Nine only) alongwith interest if any, accrued thereupon.
15. Accordingly, succession certificate be issued to the petitioner Kamlesh on filing of corresponding court fees in terms of Article 12 Schedule I of Court Fees Act, 1870 as applicable in Delhi and Indemnitycumsurety bond of the like amount, within 30 days from today. Petition is accordingly, disposed of.
File be consigned to record room, after due diligence.
Announced in the open court (Dheeraj Mor)
today i.e on 21.03.18 ACJ/CCJ/ARC:South West District
Dwarka Courts: New Delhi.
Digitally
signed by
DHEERAJ
DHEERAJ MOR
MOR Date:
2018.03.21
16:57:17
+0530
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SC32/16
DLSW030008512016
Kamlesh vs. State & Anr.
21.03.18
Present: None for the petitioner.
Respondent no.2 is already ex parte vide order dated 23.08.17.
None for respondent no.3.
By virtue of separate Judgment of even date announced in the open court, succession certificate be issued to the petitioner Kamlesh in respect of debts and securities of deceased Sh.Ashok Kumar, having total value of Rs. 4,78,089/ (Rupees Four Lakhs Seventy Eight Thousand and Eighty Nine only) alongwith interest if any, accrued thereupon, as detailed in the judgment, on filing of corresponding court fees in terms of Article 12 Schedule I of Court Fees Act, 1870 as applicable in Delhi and Indemnitycumsurety bond of the like amount, within 30 days from today.
File be consigned to record room, after due compliance.
(Dheeraj Mor)
ACJCCJARC (SW)
Dwarka Courts: 21.03.18
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