Delhi District Court
Pc No.42413 Of 16 Vishwanath Sanyas ... vs State & Anr. 1 Of 22 on 22 August, 2019
IN THE COURT OF SH. LAXMI KANT GAUR, ADDITIONAL
DISTRICT JUDGE, TIS HAZARI COURTS, DELHI
P.C. No. 42413 of 2016
1. Shri Vishwanath Sanayas Ashram Trust
11, Bela Road, Shri Ram Road,
Civil Lines, Delhi110054.
2. Shri Param Pujaya Swami
Punnya Nand Giriji Maharaj
11, Bela Road, Shri Ram Road,
Civil Lines, Delhi110054.
3. Swami Swayan Prakash Giri Ji
11, Bela Road, Shri Ram Road,
Civil Lines, Delhi110054.
4. Swami Adiudatta Nand Ji,
11, Bela Road, Shri Ram Road,
Civil Lines, Delhi110054.
5. Shri Harish Chand Rastogi (Secretary)
11, Bela Road, Shri Ram Road,
Civil Lines, Delhi110054.
6. Shri Surender Gupta (Joint Secretary)
11, Bela Road, Shri Ram Road,
Civil Lines, Delhi110054.
7. Shri Ajay Narain
11, Bela Road, Shri Ram Road,
Civil Lines, Delhi110054.
PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 1 of 22
8. Shri Kailash Nath Khanna (Treasurer)
11, Bela Road, Shri Ram Road,
Civil Lines, Delhi110054.
9. Shri Adarsh Kumar Kwatra
11, Bela Road, Shri Ram Road,
Civil Lines, Delhi110054.
10. Shri Ram Prakash Kapoor
11, Bela Road, Shri Ram Road,
Civil Lines, Delhi110054.
11. Smt. Indra Mohan
11, Bela Road, Shri Ram Road,
Civil Lines, Delhi110054.
12. Swami Sada Nand Ji
11, Bela Road, Shri Ram Road,
Civil Lines, Delhi110054.
(Deleted by the orders
of the court dated 28.08.2010) ...........Petitioners
Vs.
1. The State
2. Shri Shanteshwar Pal
Son of late Shri Sunder Lal
R/o 2389, Gali Chandni Wali,
Trukman Gate, Delhi110006. .........Respondents
Date of filing of the petition : 23.12.2009
Date of reserving the judgment : 26.07.2019
Date of judgment : 22.08.2019
PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 2 of 22
Petition for grant of Probate/Letter of Administration in respect of the
registered Will dated 10.06.2003 executed by Smt. Shanti Devi Thakur
w/o late Sh. Mohan Singh Thakur.
JUDGMENT
1. By this judgement I propose to decide present petition filed for seeking probate/letters of administration in respect of a Will dated 10.6 .2003 executed by Smt. Shanti Devi Thakur wife of Late Sh. Mohan Singh Thakur.
Introduction of the Testatrix and Parties
2. The petitioner No.1 is a Trust by the name of SHRI VISHWANATH SANYAS ASHRAM TRUST (hereinafter referred to as Trust). Petitioners No. 2 to 12 are the trustees of this Trust. Respondent No.2 Shanteshwar Pal is stated to be the nearest relative of Late Smt. Shanti Devi Thakur (hereinafter Testatrix). In the reply filed to the petition, respondent No. 2 has claimed himself to be the nephew (son of brother) of Testatrix. Testatrix had died issueless. Her husband had predeceased her.
3. It may be added that during the course of the trial the petitioner No. PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 3 of 22 12 was deleted from the array of the parties. After the death of the respondent No.2 his legal heir were substituted in his place as his legal representatives.
Execution of Will and the properties involved
4. Testatrix had executed a Will on 10.06.2003 and it was registered with the office of the SubRegistrar Delhi bequeathing thereby her movable and immovable properties in the favour of the petitioner trust. Description of the said properties are as under:
IMMOVABLE PROPERTIES :
a) Property bearing No.103, Gali Kandle
Kashan, Fateh Puri, Delhi.
b) Property bearing No.6427, Katra Bariyan,
Gali Kalelan, Delhi.
c) Property bearing Nos. 247071, Gali
Qayamuddin, Bazar Sita Ram, Delhi.
MOVABLE PROPERTIES :
i) All Fixed deposit in Oriental Bank,
Chandni Chowk, Delhi.
ii) Gold jewellery ornaments lying in locker,
in State Bank of India, Fateh Puri, Delhi.
iii). Or any other movable properties left by me.
PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 4 of 22
5. Testatrix had died on 21st of July 2003 at Delhi. Filing of the Petition and publication of Notices etc
6. After the petition had been filed there was a direction given for the issuance and publication of citation in the Hindi daily " Nav Bharat Times" as is required under section 283 of the Indian succession act. Notice was also directed to be sent to the respondent No.2. Completion of pleadings and framing of issues
7. On behalf of the respondent No.2 there was a reply filed. On behalf of the Petitioners there was also a rejoinder filed to the said reply. It appears from the record that on the basis of the pleadings issues had been framed twice once on 27th of July 2011 and again on 29th of March 2012. As it appears, the issues which had been framed on 29 th of March 2012 also include the issues which had been framed on 27 th of July 2011. I would therefore go by the issues for the purpose of giving my findings on the basis of the issues which had been framed 29th of March 2012. Issues framed read as under:
1). Whether they Will dated 10.06.2003 propounded by the petitioner is a false and fabricated Will?
OPR PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 5 of 22
2). Whether the petitioner is entitled to grant of probate/letters of administration in respect of the will dated 10.0 6.2003? OPP
3). Relief Examination of Witnesses Witnesses of Petitioners
8. Witness PW1 Sh. Surendra Kumar Gupta is the Joint Secretary of the Trust. He is also petitioner No.6 in the case. He is one of the attesting witnesses of the Will along with the other attesting witness Sh. Hem Chand Verma. Main focus of his testimony is as to how he had signed on the Will as an attesting witness and subsequently how the Will had been registered at the office of the SubRegistrar Delhi. This witness had identified his signatures, signatures of the other attesting witness Sh. Hem Chand Verma and also of the Testatrix on the Will and also deposed about her putting her thumb impressions on the Will.
9. Witness PW2 Sh. Hem Chand Verma, like it has been stated above, is another attesting witness of the Will. On the similar lines as the witness PW1 he too had deposed as to how he had signed on the PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 6 of 22 Will as an attesting witness in the presence of the witness PW1 and Testatrix and how they had signed in his presence. He had identified his signatures and also their signatures. He also deposed about the thumb impressions being put by the Testatrix on the Will.
10. Witness PW3 Sh. Kailash Nath Khanna in his affidavit had referred to the resolution of the Trust Ex PW3/1 by which he and Secretary of the Trust Sh. Harish Chand Rohtagi were authorised to sign the pleadings, affidavits, file applications etc on behalf of the Trust. It is a different matter that the petition had been signed by all the trustees of the Trust. He had deposed that he had signed the petition in his individual capacity as well as on behalf of the Trust. This witness had in his testimony also referred to the death certificate of Testatrix ExPW3/2. According to his testimony Testatrix was leading a spiritual life in the ashram of the Trust. She was a disciple of one Sh. Purnianand Giri, Mandleshwar Maharaj of the Trust. She had died in the Ashram itself.
11.This witness PW3 also gave the details in ExPW1/3 of the properties of the Testatrix along with their valuation, monies in Banks and Fixed deposits in her name. He also deposed about a report, PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 7 of 22 Ex.PW3/8, submitted by a Local Commissioner appointed by the Court in the earlier proceedings (filed for getting Letters of Administration/Probate and subsequently withdrawn for technical reasons with the liberty to file fresh), to open a locker and make an inventory of the articles found therein. There was also a valuation filed alongwith it. It seems that while exhibiting the documents inadvertently exhibit marks had not been put on these documents though their reference comes in the testimony of the witness.
12.Witnesses PW4 to PW8, except PW6, are the witnesses who had been summoned from Banks to place on record statements of various Bank accounts and Fixed Deposits.
13.Witness PW6, who had been working as Upper Division Clerk in the office of the SubRegistrar had produced the documents related to the registration of the Will.
Witnesses of Respondent
14. Respondent had died during the proceedings. He was substituted by his Legal Representatives (Legal heirs). It was stated on behalf of Legal Representatives of the Respondent that they did not know PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 8 of 22 much about the case and did not want to lead evidence. Evidence of behalf of the Respondent was accordingly closed. Thus no witness had been examined on behalf of the LRs Respondent No.2. Hearing submissions
15.I have heard counsel for the Petitioners and have gone through the record of the case including the written submissions filed from both sides.
Proving Will
16.Section 63 of the Indian Succession Act, provides that a Will is to be attested by two witnesses in the presence of the Testator though may not be at the same time and Testator too have signed in their presence. Section 63 of the Indian Succession Act reads as under:
Section 63 of the Indian Succession Act:
63 Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 12 [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:--
(a)The testator shall sign or shall affix his mark to PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 9 of 22 the Will, or it shall be signed by some other person in his presence and by his direction.
(b)The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c)The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. (Emphasis supplied)
17. If we read the affidavits of the two attesting witnesses, witness PW1 Sh. Surendra Kumar Gupta and Witness PW2 Sh. Hem Chand Verma filed in examinationinchief is almost the same. In the cross PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 10 of 22 examination as well there is nothing substantial has come which may create doubt about their testimony.
18. Para 4 &5 of the affidavit of PW1 read as under:
"Para 4 - That Smt. Shanti Devi Thakur gave a telephonic call to me on 09.06.2003 and called me at her residence 103, Gali Kandle Kashan, Fatehpuri, Delhi110006. I went to the residence of Smt. Shanti Devi Thakur on 10.06.2003 and found that she was having a Will dated 10.06.2003, already written, with her. Shri Hem Chand Verma and an Advocate was also present at that time.
Para 5 - That the said Advocate, present at that time, read out the contents of the Will dated 10.06.2003 to Smt. Shanti Devi Thakur in my presence and Smt. Shanti Devi Thakur after understanding the contents of the said Will dated 10.06.2003, signed and thumb marked the said Will dated 10.06.2003 in my presence as well as in the presence of Shri Hem Chand Verma and the Advocate at point A and B. Smt. Shanti Devi Thakur also asked me and Shri Hem Chand Verma to sign the said Will dated 10.06.2003 as PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 11 of 22 witness. I signed the Will at the instruction of Smt. Shanti Devi Thakur in her presence and in the presence of Shri Hem Chand Verma. Shri Hem Chand Verma also signed the said Will dated 10.06.2003 at the instructions of Smt. Shanti Devi Thakur in my presence as well as in the presence of Smt. Shanti Devi Thakur, at the same time. The said original Will is Ext. PW1/1"
19. Similarly paragraphs 5,6,7&8 of the PW2 read as under:
Para 5 - That I reached the residence of Smt. Shanti Devi Thakur at Gali Kandle Kashan, Delhi on 10.06.2003 and found that Smt. Shanti Devi Thakur was having a Will dated 10.06.2003 with her, already written. Shri Surender Kumar Gupta reached lateron.
Para 6 - That an Advocate, present at that point of time, read over and explained the contents of the Will to Smt. Shanti Devi Thakur.
Para 7 - That Smt. Shanti Devi Thakur after understanding the contents of her Will dated 10.06.2003 signed and thumb marked the said Will in my presence as well as in the presence of Shri Surender Kumar Gupta. Smt. Shanti Devi Thakur had signed and thumb marked the Will PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 12 of 22 Ext.PW1/1 on all pages of the said Will, Ext. PW1/1. Smt. Shanti Devi Thakur also asked me and Shri Surender Kumar Gupta to sign the Will dated 10.06.2003 Ext. PW1/1 as witness. I signed the Will at the instructions of Smt. Shanti Devi Thakur in her presence. My signatures on the Will Ext. PW1/1 is at point 'G'. I also signed the Will before the Sub Registrar at point 'H'. Para 8 - That Shri Surender Kumar Gupta also signed the Will Ext.PW1/1 in my presence and in the presence of Smt. Shanti Devi Thakur at the same time and his signatures are at point 'C' and 'D' on the Will Ext.PW1/1.
20. In the crossexamination as well both the witnesses had deposed that they had received call from the Testatrix a day before the execution of the Will. It is also clear both the Witnesses and the Testatrix knew each other because of all of them had been associated with the Trust in one way or the other. Both of them spoke about presence of an Advocate in the house of the Testatrix when they reached her house. In answer to a question asked in the crossexamination witness PW1 had replied "When I signed the Will, Sh. Hem Chand Verma had PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 13 of 22 already signed the Will". This answer was not further probed to find out if Sh. Hem Chand (PW2) had signed before witness PW1 had arrived or thereafter. Even if it is assumed Sh. Hem Chand signed before witness PW1 had arrived that would also not invalidate the Will for the reason it is possible under section 63 of Indian Succession Act the two attesting witnesses may not sign the Will at same time.
21.At one place there was a question asked as to the age of the Advocate present. Witness PW1 had stated that the age of the Advocate was about 35 years and PW2 had stated the age Advocate was 50 years. It may be noted that Will was executed in the year 2003. Witnesses were being examined in the year 2014. Age of the Advocate was not a question of importance which may have been a matter of attention for the witnesses. It is a question of impression which the witnesses were carrying as to the age of this person. A person of 35 of years of age is not too young and person of 50 years of age is not too old. It is clear that the Witnesses had met him for the first time and also for the last time. I am of the view that this difference in age given by the witnesses of the Advocate present PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 14 of 22 hardly creates any doubt as to the genuineness of the Will. Attesting witnesses - Interested witnesses
22.It has been stated in the written submissions filed that the both attesting witnesses were interested witnesses. In respect of the PW1 Sh. Surinder Gupta it has been specifically alleged that he is a trustee of Trust and he was also associated with the breaking open the locker of Testator and also giving the valuation of the valuable articles found therein. It may be noted that these proceeding of breaking the locker relate to the previous proceedings filed for the same purpose but withdrawn for technical reasons. The record would show that the Court had appointed one Sh.Paras Khanna as the Local Commissioner for breaking open the locker. Locker was broke open in the presence of the counsel for the Petitioner and the Bank Manger. It does not find mention of this witnesses but this is true that the valuation of the articles found was given by this witnesses. He seems also to be a government approved Valuer.
23. It may be stated first of all, it would not be proper to say that they were interested witnesses in the sense that they would inherit any part of the estate of the Testator. As per Will the estate was to go to a PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 15 of 22 public charitable religious Trust. If they are taken to be interested attesting witnesses in the sense that all of them had affiliation with the same Trust, then it may noted it is natural for a person executing a Will to have witnesses he or she may have trust. She was not expected to have called witnesses to attest the Will who may have been strangers to her. They could only be friends or close relatives or associates in one way or the other. That does not make these witnesses as interested witnesses. Even in a case where the attesting witness gets some benefit under a Will, still it does not make such a witness incompetent to attest the Will though it may have the consequence of such bequest being void so far as it relates to the attesting witness (see section 671 of the Indian Succession Act). No evidence as to Will being forged and fabricated
24.From the evidence which has come on record from the Petitioners, there is no way one can say that the Will being propounded by the Petitioners is forged or fabricated. It was something required to be 1
67. Effect of gift to attesting witness. -A will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting, or the wife or husband of such person, or any person claiming under either of them.
Explanation.--A legatee under a will does not lose his legacy by attesting a codicil which confirms the will.
PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 16 of 22 proved by the Legal Representatives of Deceased Respondent but it has been noted above that there is no evidence led from their side. Thus one may say that there is no evidence to suggest or prove that the Will is either false or fabricated.
Allegation as to the selling of property bearing No. 247071 Gali Quamuddin Bazar Sita Ram Delhi
25.There is an allegation made in the reply filed on behalf of the Respondent that without obtaining the probate Plaintiff through Surinder Kumar Gupta had executed a power of attorney dated 15/10/2004 in favour of one Ramesh Sharma and on the basis of said Power of Attorney one Jamal @ Jamaluddin and Parvez were engaged to carry out unauthorized construction at the property bearing No. 247071 Gali Quamuddin Bazar Sita Ram. In respect of which there was a civil suit filed by the respondent, on an assurance given from the side of the Petitioner No.1 herein that they would not carry out any unauthorized construction therein, suit was dismissed as 'satisfied'. In the written submissions filed it has been stated that PW1 and PW3 gave wrong statements in the Court that property had not been sold off by the Petitioners through said Ramesh Chand PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 17 of 22 Sharma. One may state here that there was no specific issue framed by the Court in this respect. If according to respondent said property has been sold off by the Petitioner No.1 then it was for the Respondent to prove the same, which they have not done. In my view, therefore, any such averment will have no implication as far as the granting of the Letters of Administration is concerned. Conclusion on issues no.1 and 2
26.On the basis of the foregoing discussion one may say that Respondent ( deceased) through Legal Representatives of Deceased has failed to prove that the Will being propounded by the Petitioners is false and fabricated.
27. On the other hand Petitioners have proved the execution of the Will by the Testatrix in terms of section 63 of the Indian Succession Act, in favour of the Petitioner No.1 Trust, bequeathing all her movable and immovable properties mentioned therein. Thus one may conclude that on the basis of the Will dated 10.06.2003, Petitioner No.1 Trust is entitled to Letters of Administration in respect of the properties referred to in the Will.
PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 18 of 22 Letters of Administration does not confer title to the property of Deceased
28. A Testamentary court is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will. It is settled law that the grant of a Probate or Letters of Administration does not confer title to property. They merely enable administration of the estate of the deceased2. It may therefore be understood by the petitioners clearly that this Judgment does not confer any title on the Petitioners in respect of the Properties which are the subject of Will.
Execution of Administration and Surety Bond under section 291 Indian Succession Act.
29. Though the value of the property involved in this case may turn out to be on the higher side but I don't think it is necessary to ask the petitioners to submit an Administrative and surety Bond for a matching sum money. I am of the view asking the Petitioners to submit an Administrative Bond in the sum of Rs. 15,00,000/ (Rs. 2 Delhi Development Authority vs Mrs. Vijaya C. Gurshaney & Anr on 26 August, 2003 - [ (2003)7 SCC 301] PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 19 of 22 Fifteen Lakhs) with one surety in the like amount would meet the ends of justice.
Compliances to be made under section 317 of Indian Succession Act.
30. Petitioners herein would be required to exhibit inventories within six months and one year as is required u/s 317 of the Indian Succession Act from the date of the issue of the Letters of Administration in the Form No.178 and 179 Vol. 6, Delhi High Court Rules respectively.
Valuation under Section 19 -I of the Court Fees Act
31. It may noted here though the Petitioners may be held to be entitled for the Letters of Administration with Will annexed. The same shall, however, be issued only after Petitioners have filed valuation of the properties both movable and immovable in the Form as given in Schedule III of the Court Fees and accepted by the Court as is required under section 19I3 of the Court Fees of the Act and in 3 [19-I. Payment of Court-fees in respect of probates and letters of administration.--
(1) No order entitling the petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until the petitioner has filed in the Court a valuation of the property in the form set forth in the Third Schedule, and the Court is satisfied that the fee mentioned in No. 11 of the First Schedule has been paid on such valuation.1[19-I. Payment of Court-fees in respect of probates and letters of administration.--(1) No order entitling the petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until the petitioner has filed in the Court a valuation of the property in the form set forth in the Third Schedule, and the Court is satisfied that the fee mentioned in No. 11 of the First Schedule has been paid on such valuation."
(2) The grant of probate or letters of administration shall not be delayed by reason of any motion made by the Collector under section 19H, sub-section (4).] PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 20 of 22 consequence thereof necessary Court Fee has been filed. One may also make reference to the Judgment of the Hon'ble High Court in DRA Mountford v. Govt of NCT of Delhi 2018 SCC OnLine Del 8892 in this respect relevant reads as under:
"19. Considering the law cited above the question of valuation of assets and payment of the court fee shall arise only once the Will is held to be valid and the Court directs the grant of probate or letter of administration with Will annexed and the final valuation shall be done by the Collector of the area at that time."
Conclusion
32. In view of the foregoing discussion and facts and circumstances of the case, I am granting Letters of Administration with Will annexed in favour of the Petitioners u/s 276 of the Indian Succession Act. Let the same be issued in their favour after the submission of the valuation of the properties in terms of Section 19I of the Court Fees Act and accepted by Court and thereafter necessary Court Fee is deposited and Administrative and Surety Bond are executed in the sum of Rs. 15 Lakhs with one surety in the like amount.
33. They would also be required to exhibit inventory and account within PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 21 of 22 six months and one year as discussed above under section 317 of the Indian Succession Act.
34. Ordered accordingly.
35. File be consigned to record room.
Announced in the open court on 22nd of August, 2019 (Laxmi Kant Gaur) Additional District Judge, Central, Delhi PC No.42413 of 16 Vishwanath Sanyas Ashram Trust Ors. vs.State & Anr. 22 of 22