Delhi High Court
Administrator General vs State & Ors on 21 November, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 21st November, 2016
+ TEST.CAS. 13/1973
ADMINISTRATOR GENERAL ..... Petitioner
Through: Mrs. Avnish Ahlawat & Ms. Latika
Chaudhary, Advs.
Versus
STATE & ORS .... Respondents
Through: Mr. Raman Kapur, Sr. Adv. with Mr.
R.P. Singh, Adv. for Objectors.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. On 6th October, 1971, one Mohan Singh Sangar filed a petition under
Section 276 of the Indian Succession Act, 1925, registered as Probate Case
No.12/1971 of this Court, seeking probate of the document dated 11th May,
1971 stated to be the last Will of Smt. Dropadi Devi widow of Sh. Uma Datt
Sharma, resident of 110, Darya Ganj, Delhi who died at Shahpur, District
Ambala on 21st July, 1971, in his capacity as the named executor in the said
document, the other named executor viz. Uma Datt Sharma having died on
17th July, 1971.
TEST. CAS. No.13/1973 Page 1 of 33
2. The aforesaid probate case No.12/1971 was entertained. Objections
were filed by i) Ram Sarup Sharma; ii) Dev Datt Sharma; iii) Suresh Chand
Sharma; and, iv) Sita Devi pleading:
(i) That the document dated 11th May, 1971 set up by Mohan
Singh Sangar as the Will of Dropadi Devi was forged and
fabricated.
(ii) That the said objectors had already filed application in the
Court of the Senior Sub-Judge at Ambala for Succession
Certificate on the basis of a document dated 19 th July, 1971
stated to be the last Will of the said Smt. Dropadi Devi.
(iii) That Ajodhya Parshad and Ram Rang were sons of Har Bilas.
(iv) Ajodhya Parshad left a son Raghu Nandan and Ram Rang left a
son Uma Datt Sharma.
(v) Dropadi Devi was the wife of Uma Datt Sharma.
(vi) That the objectors Ram Sarup and Dev Datt are the sons of
Raghu Nandan.
TEST. CAS. No.13/1973 Page 2 of 33
(vii) Uma Datt Sharma had a son named Vidya Sagar who was
unmarried and died in 1950.
(vii) That both Uma Datt Sharma and Dropadi Devi died in the
house at Shahpur district Ambala which belonged to them and
the objectors and was the family house.
(viii) That the Will dated 19th July, 1971 of Dropadi Devi was in
favour of objectors.
(ix) Mohan Singh Sangar was one of the large number of tenants in
house No.110, Darya Ganj, Delhi owned by Dropadi Devi.
(x) Dropadi Devi never wanted to disinherit her heirs i.e. the
objectors.
(xi) The objectors are the heirs of Dropadi Devi.
3. The Administrator-General, Delhi also filed a reply to the Probate
Case No.12/1971 pleading:
(a) That the objectors as per their pleadings are heirs of the
husband of Dropadi Devi and not of Dropadi Devi.
TEST. CAS. No.13/1973 Page 3 of 33
(b) The application for Succession Certificate in the Court at
Ambala was without jurisdiction and filed during the pendency
of the Probate Case No.12/1971 and against law.
(c) The status of Mohan Singh Sangar as a tenant in the property of
the deceased did not affect his title as Executor of the Will of
the deceased.
The Administrator-General Delhi thus supported Mohan Singh
Sangar.
4. The Administrator-General, Delhi filed IA No.93/1973 in Probate
Case No.12/1971 for an order under Section 10 of the Administrators-
General Act, 1963. The said application was allowed vide judgment dated
15th February, 1973 in Probate Case No.12/1971 in which it was recorded /
held:
(i) That Smt. Dropadi Devi besides property known as
Vidaya Sagar Bhawan situated at 110, Darya Gang, Delhi
had also left a sum of Rs.1,45,114.41 paise in fixed
deposit with the State Bank of India, Chandni Chowk,
Delhi and another sum of approximately Rs.10,000/- in a
TEST. CAS. No.13/1973 Page 4 of 33
current account with Central Bank of India, Darya Ganj,
Delhi.
(ii) That Mohan Singh Sangar died on 9th January, 1972.
(iii) Thereafter one Lalit Mohan Bangur who claimed to be
one of the attesting witnesses of the alleged Will dated
11th May, 1971 and also a tenant in a part of the property
at 110, Darya Ganj, Delhi moved IA No.249/1972 in
Probate Case No.12/1971 praying that the Administrator-
General, Delhi be granted Letters of Administration in
respect of the estate of Dropadi Devi; notice of this
application was sent to the Administrator-General, Delhi.
(iv) This application was opposed by the counsel for the
objectors averring that the property of the deceased
Dropadi Devi was not in danger of loss, deterioration or
waste.
(v) No merit was found in the said plea of the objectors as
rent from the tenants in the property was to be collected
and taxes with respect to the property paid; there had also
TEST. CAS. No.13/1973 Page 5 of 33
been disputes with respect to a part of the property which
was subject matter of proceedings under Section 145 of
the Criminal Procedure Code, 1973 (Cr.P.C.) and vide
order in that proceedings a part of the property had been
attached.
(vi) Another Mr. Har Prashad was also claiming to be more
closely related to Uma Datt than the objectors and
claiming preference in the event of intestacy of Dropadi
Devi.
(vii) All these disputes were likely to take a long time to settle
and in the meanwhile somebody had to take charge of the
property.
(viii) Hence the Administrator-General, Delhi was directed to
collect and take possession of the assets of the deceased
and to hold the same subject to further directions.
5. The Administrator-General, Delhi filed IA No.966/1973 in Probate
Case No.12/1971 and finding the same to be a regular petition for issuance
of Letters of Administration in favour of the Administrator-General of Delhi,
TEST. CAS. No.13/1973 Page 6 of 33
it was ordered to be separated and re-numbered as a probate case and was
numbered as the present petition i.e. Probate Case No.13/1973.
6. Thereafter Probate Case No.12/1971 was adjourned from time to time
along with the present petition and was ultimately, vide order dated 29th
August, 2002, dismissed for the reason of the petitioner therein Mohan
Singh Sangar having died and none having been substituted in his place.
7. Though IA No.966/1973 filed in Probate Case No.12/1971 and
ordered to be numbered as Probate Case No.13/1973 i.e. the present petition
is in a torn state and the contents thereof cannot be fully deciphered but
suffice it is to state that it is to seek Letters of Administration with respect to
the estate aforesaid of Dropadi Devi.
8. Objections to this petition also were filed by Ram Sarup Sharma,
Suresh Chand Sharma, Sita Devi, Bhuro Devi, Bimla Devi, Krishan Datt,
Raj Rani, Ramesh Datt, Birj Bala & Ashok Kumar pleading i) that the
Administrator-General, Delhi cannot apply for obtaining Letters of
Administration of the alleged Will dated 11th May, 1971 (with respect to
which Mohan Singh Sangar had filed Probate Case No.12/1971); ii) denying
that the document dated 11th May, 1971 was executed by Dropadi Devi; iii)
TEST. CAS. No.13/1973 Page 7 of 33
that Dropadi Devi had left a validly executed last Will dated 19th July, 1971
in favour of the objectors and which had also been registered post her death
with the Sub-Registrar, Ambala; iv) reiterating the objections earlier filed to
Probate Case No.12/1971 and as set out hereinabove.
9. Though as aforesaid, the petition in Probate Case No.13/1973 is in a
torn unreadable state but from a reading of the objections aforesaid filed
thereto, it appears that the Administrator-General in this petition was seeking
probate of the same document dated 11th May, 1971 of which Mohan Singh
Sangar was seeking probate as the last Will of Dropadi Devi in Probate Case
No.12/1971.
10. The reply (called rejoinder) filed by Administrator-General to the
aforesaid objections also confirms that the Administrator-General, Delhi in
the present petition was averring Dropadi Devi to have left a Will dated 11 th
May, 1971 and seeking Letters of Administration on the basis thereof.
11. The Administrator-General, Delhi in the reply also disputed the
document dated 19th July, 1971 relied on by the objectors as the last Will of
Smt. Dropadi Devi. From a reading of the said reply it also transpires that
vide document dated 11th May, 1971 claimed to be the last Will of Dropadi
TEST. CAS. No.13/1973 Page 8 of 33
Devi, she had bequeathed her entire property to charity. In the reply it is
also recorded that Mohan Singh Sangar, owing to demise, had ceased to be a
tenant and / or the occupier of any part of the property.
12. On the pleadings aforesaid, the following issues were framed on 20th
September, 1973:
"1. Whether Dropadi Devi deceased executed a Will dated the 11th of May
1971 and whether the same is valid?
2. Whether Dropadi Devi deceased executed a Will dated the 19th of July,
1971 and whether the same is valid?
3. Whether the objectors are entitled to succeed to the property of the
deceased, otherwise than under the Will dated the 19th of July, 1971 as
being her heirs?
4. If the previous issues be decided in favour of the Administrator-General,
then is he not entitled to obtain Letters of Administration?
5. Relief."
13. Vide order dated 18th December, 1975 on the application of the
Administrator-General, Delhi, the objectors and one Mr. Ramesh Sharma
were restrained from interfering with the estate of Smt. Dropadi Devi
ordered to be managed by the Administrator-General, Delhi.
TEST. CAS. No.13/1973 Page 9 of 33
14. Vide order dated 6th August, 1976 the document dated 19th July, 1971
claimed by the objectors to be the last Will of Smt. Dropadi Devi and some
specimen signatures of Smt. Dropadi Devi were ordered to be sent to the
Central Forensic Science Laboratory (CFSL) for examination and opinion.
15. The order dated 28th July, 1978 records that the Sub Divisional
Magistrate (SDM) who was in possession of the property in the proceedings
under Section 145 of the Cr.P.C. had released the said possession in favour
of the Administrator-General, Delhi. Vide the same order, the
Administrator-General, Delhi was restrained from leasing out or parting with
possession of the property and to maintain status quo with respect thereto.
16. The order dated 3rd October, 1978 on IA No.2555/1978 of the
objectors to restrain the Administrator-General, Delhi from renting out and
parting with possession of the property records i) that one single flat
belonging to the deceased Dropadi Devi out of number of flats in the
property was lying vacant; ii) it was the stand of the Administrator-General,
Delhi that the said flat could not be let out as it was full of the assets of the
deceased Dropadi Devi; iii) that the effect of the grant of Letters of
Administration to the Administrator-General, Delhi would be that he could
TEST. CAS. No.13/1973 Page 10 of 33
administer the estate according to the Will; iv) that however till the Letters
of Administration was so granted, the Administrator-General, Delhi was
merely an administrator pendente lite; v) though the Administrator-General,
Delhi subsequent to grant of Letters of Administration would be subject to
the powers of the High Court under Section 25 of the Administrators-
General Act but till then could be restrained from letting out the property; vi)
accordingly the Administrator-General, Delhi was restrained from letting out
the property.
17. Vide order dated 8th January, 1979, the Administrator-General, Delhi
was directed to deposit the arrears of rent etc. of Ratnakar Press in Kolkata
and to contest the eviction petition with respect thereto.
18. Vide order dated 19th March, 1979, the objectors were directed to lead
evidence first as the Will propounded by them was a latter one and if proved,
the need for the Administrator-General, Delhi to prove the Will dated 11th
May, 1971 would not arise.
19. Vide order dated 15th April, 1981 one Mr. A.C. Kakkar was restrained
from making any addition, alteration in any part of the ground floor of the
TEST. CAS. No.13/1973 Page 11 of 33
property aforesaid or from enclosing any part of the common area of the
properties.
20. Applications moved from time to time for substitution of legal
representatives of the objectors were allowed.
21. Vide order dated 27th July, 1989, the Administrator-General was
permitted to deal with the property / tenants and unauthorized occupants in
the property in accordance with the provisions of law.
22. The order dated 22nd August, 2005 records i) that the proceedings
filed by the objectors in the Court at Ambala were transferred to this Court;
ii) that though the Administrator-General, Delhi had examined two
witnesses to prove the document dated 11 th May, 1971 stated to be the last
Will of Dropadi Devi but their evidence was not trustworthy; (iii) the
Forensic Science Laboratory (FSL) had clearly stated that the document
dated 11th May, 1971 does not bear the signatures of the deceased; and, (iv)
Mohan Singh Sangar who had propounded the document dated 11 th May,
1971 as the last Will of the deceased Dropadi Devi had also died and none
else had pursued the said Will.
TEST. CAS. No.13/1973 Page 12 of 33
23. Sh. Kazim Ali Khan functioning as the Deputy Administrator-
General, Delhi and thereafter Administrator-General, Delhi inducted his son
Suhael Saad Ali Khan into a portion of the property. On application of the
objectors, vide order dated 25th November, 2004, the portion of the property
in possession of Suhael Saad Ali Khan was ordered to be recovered, if
necessary by breaking open locks.
24. Suhael Saad Ali Khan preferred FAO(OS) No.268/2004 which was
dismissed vide order dated 19th April, 2007.
25. The objectors examined seven witnesses.
26. On 9th November, 2016 one lady who disclosed her name as Ms.
Madhu Sharma daughter of Suresh Chand mentioned this matter listed in the
category of "Finals" and finding the matter to be of the year 1973, I directed
the same to be shown in the cause list of 10th November, 2016.
27. On 10th November, 2016, the counsel for the petitioner Administrator-
General, Delhi and the senior counsel for the objectors were heard and upon
being asked as the officers of the Court to fairly state whether either of the
documents dated 11th May, 1971 or the 19th July, 1971, in the evidence led,
TEST. CAS. No.13/1973 Page 13 of 33
stood proved as the Will of deceased Dropadi Devi, both fairly stated that
neither had been proved.
28. However while the counsel for the petitioner / Administrator-General,
Delhi claimed that the case has now to be decided on the basis of the estate
of the deceased Dropadi Devi having vested in the Administrator-General by
way of escheat, the senior counsel for the objectors stated that letters of
administration ought to be granted to the objectors as heirs of the deceased
as agnates under Section 15(1)(b) read with Sections 3 and 8(c) of the Hindu
Succession Act, 1956.
29. On 10th November, 2016, I enquired from the senior counsel for the
objectors as to how the objectors have proved their relationship with the
deceased as agnates.
30. The senior counsel for the objectors stated that the witnesses
examined by the objectors had deposed so.
31. It was however further enquired from the senior counsel for the
objectors, whether the objectors had proved any documents to show the
lineage of the objectors and tracing back the same to the deceased, to qualify
as agnates of the deceased.
TEST. CAS. No.13/1973 Page 14 of 33
32. The senior counsel for the objectors stated that one of the witnesses of
the objectors viz. OW 7 had deposed to the said effect and had not been
cross-examined by the counsel for the petitioner / Administrator-General and
thus that evidence has to be treated as admitted by the petitioner
Administrator-General.
33. However I observed in the order dated 10th November, 2016 that in
my prima facie view, for the objectors to get the property of the deceased as
agnates of the deceased, they have to establish their relationship by
documents and the oral evidence may not suffice.
34. Though Section 50 of the Evidence Act, 1872 lays down that when
the Court has to form an opinion as to the relationship of one person to
another, the opinion, expressed by conduct, as to the existence of such
relationship, of any person who, as a member of the family or otherwise, has
special means of knowledge on the subject, is a relevant fact but the
Supreme Court in State of Bihar Vs. Radha Krishna Singh (1983) 3 SCC
118 held that in cases where the genealogy is the very basis of the plaintiff‟s
case and since there is a tendency on the part of an interested person or a
party in order to grab, establish or prove an alleged claim, to concoct,
TEST. CAS. No.13/1973 Page 15 of 33
fabricate or procure false genealogy to suit their ends, the courts should
endeavour to do justice on the materials and records, uninfluenced and
undaunted by any extraneous circumstances. It was further held that the
Courts, before accepting or relying on the genealogies must keep in mind (a)
source of the genealogy and its dependability; (b) admissibility of the
genealogy under the Evidence Act; (c) a proper use of the said genealogies
in decisions or judgments on which reliance is placed; (d) age of
genealogies; and (e) litigations where such genealogies have been accepted
or rejected. It was yet further held that for genealogy to be admissible in
evidence (i) it must fall within the four-corners of Section 32(5) or Section
13 of the Evidence Act; (ii) it must not be hit by the doctrine of post litem
motam; (iii) if proved by oral evidence, the said evidence must clearly show
special means of knowledge disclosing the exact source, time and the
circumstances under which the knowledge is acquired, and this must be
clearly and conclusively proved. It was explained that there is great risk and
a serious danger involved in relying solely on the evidence of witnesses
given from pure memory because the witnesses who are interested normally
have a tendency to draw more from their imagination or turn and twist the
facts which they may have heard from their ancestors in order to help the
TEST. CAS. No.13/1973 Page 16 of 33
party for whom they are deposing. Supreme Court further explained that
though the oral testimony of the witnesses on this matter is bound to be
hearsay and has been made admissible as an exception to the general rule
where hearsay evidence is not admissible but the nature and character of the
special means of knowledge through which the witness has come to know of
the pedigree; interested nature of the witness concerned, should be taken into
account and the evidence of the witness must be substantially corroborated
as far as time and memory admit. Onus was held to lie on the claimant to
show that he was the next reversioner of the original owner of the estate and
that every link in the genealogical tree which he had set out in the plaint had
been proved; only after the said onus has been discharged by proving the
said facts, can the defendants be called upon to rebut.
35. Further time was given to the counsels to study and an opportunity
was also given to the objectors on 10th November, 2016 to, if in possession
of any documents as passports, Aadhar Cards, Ration Cards or other
government records to show the lineage of the objectors tracing it back to
the deceased, produce the same.
TEST. CAS. No.13/1973 Page 17 of 33
36. The matter was adjourned to 17th November, 2016 when the senior
counsel for the objectors stated that some documents had been received and
advance copy of the same will be furnished to the counsel for the
Administrator-General, Delhi and filed in the Court. Requesting the counsel
for the petitioner Administrator-General, Delhi to on receipt of the said
documents inform whether the same disclose the objectors to be the agnates
of the deceased, the matter was adjourned to today.
37. The counsel for the objectors has today in Court handed over some
documents under list of documents dated 17th November, 2016 and which
are taken on record.
38. The senior counsel for the objectors states that the said documents
show that some other properties of the deceased, not subject matter of these
proceedings, have already been mutated in the name of the objectors.
39. The counsel for the Administrator-General, Delhi also refutes the said
documents and states that in any case the objectors cannot produce these
documents now.
40. The senior counsel for the objectors then states that an opportunity be
granted to the objectors to lead evidence.
TEST. CAS. No.13/1973 Page 18 of 33
41. I am not inclined to commence trial de-novo in this proceeding which
is already 43 years old and order sheets whereof are replete with
adjournments sought by either of the parties. In fact, the order sheet
discloses that one of the Hon‟ble Judges of this Court had heard the counsels
fully as far back as in the year 2005 and had even started dictating judgment
in the Court when on the request of the counsel for the objectors, the matter
was adjourned and adjournments were taken from time to time till the said
Hon‟ble Judge was elevated as Chief Justice of another High Court.
42. The objectors having not proved themselves to be the heirs of the
deceased entitled in law to the estate of the deceased Dropadi Devi, cannot
now be granted any further opportunity.
43. I have of my own also perused the evidence and satisfied myself that
neither of the two documents i.e. 11th May, 1971 and 19th July, 1971 have
been proved as the last Will of the deceased Dropadi Devi. Thus issues
no.1&2 are decided accordingly.
44. On perusal of the evidence, I am also of the view that the objectors
have failed to prove the Issue no.3 aforesaid i.e. whether they are entitled to
TEST. CAS. No.13/1973 Page 19 of 33
succeed to the property otherwise than under the Will dated 19 th July, 1971,
as being the heirs of the deceased Dropadi Devi.
45. Of the witnesses examined by the objectors OW1 to OW3 are
witnesses only to the Will and have deposed nothing about the relationship if
any of the objectors to the deceased Dropadi Devi. Similarly though the
witnesses of the petitioner Administrator-General, Delhi also in their
examination-in-chief did not depose on the aspect of relationship if any of
the objectors with the deceased Dropadi Devi, the objectors in their cross-
examination also did not put their such case to the said witnesses, as in my
opinion they ought to have. Rather, the objectors in the cross examination of
PW2 suggested that Dropadi Devi‟s brother‟s daughter Sheela used to live
with Dropadi Devi and Dropadi Devi used to bear the expenses of the said
Sheela as well as younger sister of Sheela. Similarly, to PW3 a suggestion
was given by the objectors in cross-examination, of the brother of Dropadi
Devi being in existence. Suggestions were also given to PW3, of Dropadi
Devi‟s brother‟s daughter living with Dropadi Devi. Suggestions were also
given to PW3 about the existence of one Inderjit, son of the brother of
deceased Dropadi Devi.
TEST. CAS. No.13/1973 Page 20 of 33
46. OW4 to OW6 examined by the objectors are also not found to have
deposed on the issue of the objectors being the heirs of the deceased Dropadi
Devi.
47. Only OW7 Suresh Chand has deposed i) that Dropadi Devi was
related to him through his great grandfather Mr. Ajudhia Prasad; (ii) Mr.
Harbilas had two sons viz. Ram Rang and Ajudhia Prasad; iii) Dropadi Devi
was daughter-in-law of Ram Rang being wife of his son Uma Datt; iv)
Ajudhia Prasad had only one son viz. Raghunandan Lal; v) Raghunandan
Lal further had three sons and one daughter viz. Dev Dutt, Kamal Nayan,
Ram Swaroop and Sita Devi; vi) that he was the only child of Kamal Nayan;
vii) Dev Dutt had three sons and three daughters; viii) Ram Swaroop had
only one son viz. Arun Kumar and Sita Devi had only one son viz. Anil
Kumar; ix) Dropadi Devi left agricultural land in village Shahpur which on
the basis of the Will dated 19th July, 1971 had already been mutated in the
name of the beneficiaries named therein. The said witness as aforesaid, was
not cross-examined by the Administrator-General, Delhi.
48. I may however notice that the said witness was examined on
commission and the Local Commissioner has recorded that none appeared
TEST. CAS. No.13/1973 Page 21 of 33
for the petitioner Administrator-General, Delhi inspite of waiting for some
time. There is no order of the Court closing the right of the petitioner
Administrator-General, Delhi to cross-examine the said witness though I
must record that no demand also therefor is found to have been made.
49. Per Section 15 of the Hindu Succession Act, 1956, property of a
female Hindu dying intestate devolves in the absence of sons / daughters or
their children or husband, upon the heirs of the husband and in the absence
of heirs of the husband on the mother and father and in the absence of
mother and father of the female Hindu upon the heirs of the father. Section
15(2) further provides that any property inherited by a female Hindu from
her father and mother shall devolve, in the absence of sons / daughters or
their children or husband, not upon the heirs of the husband but upon the
heirs of the father.
50. It has come on record that Dropadi Devi‟s brother‟s children were /
are in existence and they would qualify as the heirs of her father. There is
nothing on record whether the property at 110, Darya Ganj, Delhi was
owned by Dropadi Devi or inherited by Dropadi Devi from her father. If it
was inherited by Dropadi Devi from her father then the same would devolve
TEST. CAS. No.13/1973 Page 22 of 33
not firstly upon the heirs of the husband of Dropadi Devi but upon the heirs
of the father of Dropadi Devi.
51. As far as the reliance placed by the senior counsel for the petitioner on
mutation of other properties left by Dropadi Devi in favour of the objectors
is concerned, OW7 has clearly admitted that the same is on the basis of the
Will dated 19th July, 1971 and not on the basis of the objectors being the
heirs. It is thus not as if the mutating authority has satisfied itself of the
relationship of the deceased Dropadi Devi with the objectors.
52. The testimony of OW7, though remains unchallenged, fails to pass
muster of the test laid down in Radha Krishna Singh supra. Recently also,
in Om Prakash Sharma Vs. Rajendra Prasad Shewda (2015) 15 SCC 556
it was held that in order to be admissible under Section 32(5) of the
Evidence Act, the statement relied on must be made ante litem motam - by
persons who are dead i.e. before the commencement of any controversy
actual or legal upon the same point. No such evidence has been led. I am
therefore satisfied that it has but to be held that the objectors have failed to
prove by cogent evidence that they are the heirs of Dropadi Devi.
53. The position which has emerged can be summarized as under:
TEST. CAS. No.13/1973 Page 23 of 33
(i) This petition was filed by the Administrator-General seeking
Letters of Administration on the basis of Will dated 11 th May,
1971 of the deceased Dropadi Devi and was contested by the
objectors on the basis of Will dated 19th July, 1971 of Dropadi
Devi.
(ii) Neither of the documents claimed to be Will of deceased
Dropadi Devi have been proved.
(iii) The Administrator-General, Delhi is in custody of the property
vide order dated 15th February, 1973 in Probate Petition
No.12/1971.
(iv) However vide order dated 3rd October, 1978 supra in this
petition it was clarified that the Administrator-General was
merely as Administrator pendente lite.
(v) Though at one point of time during the hearing, it was observed
by me that the Administrator-General, Delhi being in
possession of the property by an order in an earlier proceedings,
the objectors even if succeeding in issue No.3 aforesaid and
being held to be the heirs of the deceased Dropadi Devi, will
TEST. CAS. No.13/1973 Page 24 of 33
have to institute a suit for recovery of possession from the
Administrator-General, Delhi but in view of above, that is not
the correct position.
(vi) There was no issue and no enquiry in this proceeding, whether
the property is vested in the State by way of escheat.
(vii) Though an issue was framed on the aspect of the objectors
being the heirs of the deceased Dropadi Devi and which I have
hereinabove decided against the objectors but the fact remains
that since there was no issue of vesting of the property by
escheat in the State and since the emphasis of the objectors also
was on the basis of alleged Will dated 19th July, 1971, no
proper evidence has been led by the objectors on this aspect.
(viii) It has come in evidence that there are heirs of father of Dropadi
Devi.
(ix) If anyone can throw a light on the claim of the objectors as
heirs, it would be the said heirs of father of deceased Dropadi
Devi and who were neither impleaded nor summoned as
witnesses.
TEST. CAS. No.13/1973 Page 25 of 33
54. Thus, though the proceedings have remained pending for 43 years, but
the position is no different from what it was on the moment of demise of
Dropadi Devi.
55. There is still no clarity on, in whom the estate of the deceased Smt.
Dropadi Devi is to be vested.
56. Section 7 of the Administrators-General Act provides that any letters
of administration granted by the High Court shall be granted to the
Administrator-General of the State unless they are granted to the next-of-kin
of the deceased. Save for the objectors, no next kin of the deceased Smt.
Dropadi Devi have come forward to administer her estate. The objectors
also having failed to prove the Will set up by them of the deceased Smt.
Dropadi Devi and having failed to prove being the heirs of Smt. Dropadi
Devi, cannot be granted letters of administration of her estate. Section 9 of
the Administrators-General Act provides that where (1) any person has died
leaving within any State assets exceeding rupees ten lakhs in value; (2) no
person has taken other proceedings for protection of the estate, the
Administrator-General of the State in which such assets are, shall be granted
letters of administration of the estate of such person. The position today, as
aforesaid, is no different from that it was on 15 th February, 1973 when, as
TEST. CAS. No.13/1973 Page 26 of 33
aforesaid, the Administrator-General, Delhi was directed to take possession
of assets of the deceased and to hold the same subject to further directions.
There is thus no option but to, though not on the basis of the purported Will
dated 11th May, 1971 of the deceased Smt. Dropadi Devi, but under the
provisions of the Administrators-General Act, to grant letters of
administration of the estate of the deceased Smt. Dropadi Devi to the
Administrator-General, Delhi.
57. I have however wondered whether to allow the findings on Issue No.3
supra to attain finality thereby leaving the objectors with the remedy only of
challenging this judgment and depriving the objectors of an opportunity to,
if so desire and are able to prove the relationship claimed with the deceased
Smt. Dropadi Devi. I am not inclined to do so for the reasons hereinafter
appearing.
(A) The Office of the Administrator-General, Delhi is found to have
abused the order dated 15th February, 1973 asking it to take possession
of the estate of the deceased Smt. Dropadi Devi and to hold the same.
It is recorded in order dated 25th February, 2004 in these proceedings
and in order dated 19th April, 2007 in FAO(OS) No.268/2004 supra
that the then Administrator-General allowed the property to be used
TEST. CAS. No.13/1973 Page 27 of 33
by his son. Though a direction was issued for recovery of the
possession of the portion of the property from the son of the then
Administrator-General but I have been unable to find any report that
the said orders have been complied with.
(B) Though in these proceedings Issue No.3 aforesaid was framed
but it is the settled position in law that the Court of probate is only
concerned with the question, whether the document put forward as the
last Will and testimony of the deceased person was duly executed and
attested in accordance with law and whether at the time of such
execution, the testator had sound disposing mind (see Ishwardeo
Narain Singh Vs. Srimati Kamta Devi AIR 1954 SC 280). The same
is the position in a proceeding seeking letters of administration. The
Court in such proceedings also is concerned only with, whether the
person seeking letters of administration is a fit person to be granted
the letters of administration of the estate of the deceased (see Bai
Parvatibai Vs. Rahunath Lakshman AIR 1941 Bom 60, Mahadeo
Shankar Shinde Vs. Maruti Shankar Shinde AIR 2003 Bom 312 and
Delhi Development Authority Vs. Vijaya C. Gurshaney (2003) 7
SCC 301). Neither of the said proceedings is concerned with, what
TEST. CAS. No.13/1973 Page 28 of 33
was the estate of the deceased Smt. Dropadi Devi, whether the
bequest is bad or not or amongst whom is the estate to be distributed.
The Court in such proceedings does not enter into the question of title
to the property. Reference in this regard can be made to Leelawati
Singh Vs. State (1998) 75 DLT 694, Anjan Kumar Singhi Vs.
Ranjan Kumar Singhi (2011) 126 DRJ 56 (DB), Ramchandra
Ganpatrao Hande alias Handege Vs. Vithalrao Hande AIR 2011
Bom 136 and Ganesh Mohapatra Vs. Udaynath Mohapatra
MANU/OR/0173/1973. Such proceedings are summary in nature and
complicated questions of title cannot be properly conducted in
summary proceedings. The question whether the objectors are related
to the deceased Smt. Dropadi Devi as agnate is a complicated question
of relationship which could not have been properly adjudicated in
these proceedings.
(C) Supreme Court in Radha Krishna Singh supra also held that
when a claim for escheat is put forward by the Government, the onus
lies heavily on the Government to prove the absence of any heir
anywhere in the world and that normally the Court frowns on the
estate being taken by escheat unless the essential conditions for
TEST. CAS. No.13/1973 Page 29 of 33
escheat are fully and completely satisfied. It was held that before the
plea of escheat can be entertained, there must be a public notice given
by the Government so that if there is any claimant anywhere in the
country, or for that matter in the world, he may come forward to
contest the claim of the State. In the facts of that case also, it was
observed that merely because the State had appeared to oppose the
claim of the plaintiffs in that case, inspite of the State succeeding in
showing that the plaintiffs were not the nearest reversioners of the
original owner, it does not follow as a logical corollary that the failure
of the plaintiffs‟ claim would lead to the irresistible inference that
there is no other heir who could at any time come forward to claim the
properties.
58. I am therefore of the opinion that an opportunity needs to be given to
the objectors to, in a properly constituted proceeding, prove their
relationship with the deceased Smt. Dropadi Devi.
59. I may in this context also notice that under Section 14 of the
Administrators General Act, the letters of administration granted to the
Administrator-General is revocable. It is thus not as if, grant of letters of
administration to the Administrator-General, Delhi in the present case would
TEST. CAS. No.13/1973 Page 30 of 33
defeat the claims of the objectors or of any other heir of the deceased Smt.
Dropadi Devi forever. Even otherwise, the effect of Letters of
Administration granted to the Administrator-General is no more than Letters
of Administration granted to any other person - it does not give to the holder
of the letters, title to the property but rather obliges the holder to administer
the estate in accordance with law and the rights of succession [See Ratan
Chandra Das Vs. Goutam Das 2003 SCC OnLine Cal. 8 (DB)]
60. I however feel that in the proceeding, if any, for filing whereof
opportunity is being given to the objectors, the objectors must necessarily
implead the heirs of the father of the deceased Smt. Dropadi Devi and/or any
other person who may have been related to Smt. Dropadi Devi and who may
be in a position to throw light on the heirs of Smt. Dropadi Devi.
61. I thus dispose of this petition as under:
(I) By granting letters of administration of the estate of the
deceased Smt. Dropadi Devi to the Administrator-General, Delhi;
(II) However, the Administrator-General, Delhi till 31st March,
2017 shall not alienate, encumber or part with any of the assets
forming the estate of Smt. Dropadi Devi and shall maintain accounts
thereof;
TEST. CAS. No.13/1973 Page 31 of 33
(III) The Administrator-General, Delhi is further directed to, if has
not already removed the persons unauthorisedly and illegally inducted
into the property aforesaid, recover such possession on or before 31 st
March, 2017;
(IV) By holding that the decision on Issue No.3 aforesaid framed in
these proceedings against the objectors shall not come in the way of
the objectors, on or before 31st March, 2017, instituting a properly
constituted proceeding to establish their claim as heirs of the deceased
Smt. Dropadi Devi; the objectors in the said proceeding, shall
however implead the heirs of father of Smt. Dropadi Devi of existence
whereof evidence has come in these proceedings and/or any other
person having possibility of a claim to the estate of the deceased Smt.
Dropadi Devi;
(V) By directing that if no proceeding with respect to the estate of
the deceased Smt. Dropadi Devi is filed by the objectors or by any
other person, the Administrator-General, Delhi shall thereafter deal
with the property in accordance with law; however, if such a
proceeding is filed, the Administrator-General, Delhi shall thereafter
TEST. CAS. No.13/1973 Page 32 of 33
deal with the property and estate of the deceased Smt. Dropadi Devi
in accordance with the orders, if any therein;
The parties are left to bear their own costs.
RAJIV SAHAI ENDLAW, J.
NOVEMBER 21, 2016 „gsr/bs‟ (Corrected and released on 21st December, 2016).
TEST. CAS. No.13/1973 Page 33 of 33