Delhi District Court
Smt. Shakuntala Chachra vs Shri Madan Lal Bhatia on 7 May, 2018
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
M. Case No.- 28/10
New M No. 58321/16
1. Smt. Shakuntala Chachra
W/o Shri Raj Kumar Chachra
R/o A-9, Hari Nagar Ghanta Ghar
New Delhi-110064
2. Smt. Sudesh Kanta
W/o Shri Kailash Khuller
R/o Plot No. 43, Pocket D-11
Sector-7, Rohini, New Delhi
3. Smt. Madh Bala Bhatia
W/o Sh. Rajiv Bhatia
R/o 212 Raj Nagar,
Sahibabad, UP
..........Petitioners
Versus
1 Shri Madan Lal Bhatia
S/o late Shri Ram Chand Bhatia
R/o 26/67, West Patel Nagar,
New Delhi- 110008
......Respondent
Date of institution of the case : 12.07.2010
Date reserved for judgment on : 25.04.2018
Date of pronouncement of judgment: 07.05.2018
JUDGMENT:
1 A petition under Section 263 of the Indian Succession Act, 1925 for Revocation of Grant of Letters of Administration in favour of the respondent in P.C No. 218/2001 has been filed.
M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 1/30 2 In brief the facts are that respondent no. 1 filed a petition for the grant of probate/letter of administration in respect of the property No. 26/67, West Patel Nagar, New Delhi on the basis of a Will dated 06.02.1985 left by one Smt. Ram Lubhai who died on 04.03.1994.
3 It is stated that in the above said petition, the respondent had made parties as shown in the memo of parties filed with the petition and thereafter notices were ordered to be issued to the said parties but few of the parties to the said petition were not served in the said petition which went on without their presence and was decided on 21.10.2003 in favour of the respondent by the court of Shri G.P. Mittal, Ld. ADJ, Delhi and letters of administration was granted.
4 It is stated that grant of letter of administration on 21.10.2003 in favour of the respondent is liable to be revoked inter-alia on the ground given here in below:-
i) That the respondent has not complied with provisions of Section 317 of Indian Succession Act, 1925;
ii) That the grant was made even without citing parties who ought to have been cited and few of the respondents were not served with the summons of the petition who remained unheard in the matter and relevant and material facts could not be brought on record which are to the following effect:-
5 It is stated that Late Shri Ram Chand Bhatia and Sh.
Kishan Chand Bhatia after migration to India and being displaced persons having left assets and estate in Pakistan were allotted a house No. 26/67, West Patel Nagar, New Delhi on 09.08.1951 by M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 2/30 the Housing Rent Officer, Delhi Province, Delhi on rental of Rs. 20/- per month and a receipt dated 04.07.1950 was issued in the joint names of Sh. Ram Chand Bhatia and Sh. Kishan Chand Bhatia and hence both including their family members started residing on the ground floor of the said property which was allotted for the benefit of the joint family. Thereafter family raised construction thereon and hence Shri Kishan Chand Bhatia became owner of the above property to the extent of 50% share and Sh. Kishan Chand Bhatia and his family continued occupying a portion consisting of one bed room, drawing-cum-dining room, passage, toilet, kitchen and open space on ground floor and came into exclusive possession of the first floor where upon one room was constructed by them and the respondent had been residing on back portion of the said property.
6 It is stated that Shri Ram Chand Bhatia died in 1957 and hence name of his widow Smt. Ram Lubhai was substituted for and on behalf of all legal heirs of Late Sh. Ram Chand Bhatia and hence joint family continued occupying the said property as usual and Smt. Ram Lubhai stepped into the shoes of Sh. Ram Chand Bhatia having the same rights and liabilities which Shri Ram Chand Bhatia had been enjoying which means that the tenancy rights being enjoyed by Shri Ram Chand Bhatia devolved on his legal heirs being heritable as per provisions of law and it mattered little that only Smt. Ram Lubhai was substituted as the substitution was for the benefit of all the legal heirs who had become co-tenants qua the suit property.
7 It is stated that on 19.04.1959 the department of Rehabilitation, Government of India, New Delhi offered to sell the M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 3/30 suit property to the allottees and in normal circumstances, if Shri Ram Chand Bhatia would have been alive, his share in the said property would have been sold to him and the same would have devolved on his legal heirs after his death as per law but since he expired and tenancy rights being heritable devolved on his legal heirs including Smt. Ram Lubhai who was substituted not in her own right but as representating all the legal heirs. Hence the same property was agreed to be purchased with the funds of HUF through Smt. Ram Lubhai who as per las represented all the legal heirs and out of regard, agreement to sell was got executed in her favour and as such, the family members as usual continued occupying the said property.
8 It is stated that in fact, Smt. Ram Lubhai was purely a house wife and had no money to spend nor any amount was spent by her and since property was purchased with the funds of HUF and for the benefit of joint family hence the family members continued occupying the said property as before.
9 It is stated that the plaintiffs submit that like ancestral property, there can be ancestral tenancy rights also which would devolve on the legal heirs and same rights devolved in the instant case also and it was purely in recognition of those tenancy rights that the suit property was offered to be sold not to the general public but only to those who were occupying the suit property as tenants and hence keeping the above factual back ground in mind. It is stated that it is clear that the property was agreed to be sold and purchased in consideration of tenancy rights and hence substitution in the name of one of the legal heirs was no consequence and significance at all.
M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 4/30 10 It is stated that suit property was not owned by Smt. Ram Lubhai absolutely and the purported agreement to sell was not for the benefit of Smt. Ram Lubhai alone but was for the benefit of all the legal heirs of Sh. Ram Chand Bhatia who all are owners to the extent of their respective shares. It is stated that because of shortage of accommodation on ground floor, the first floor of the above property was constructed by the family in 1970 by contributing funds by all concerned to the knowledge of everyone and the legal heirs of Sh. Kishan Chand Bhatia continued occupying the suit property as owners of the superstructure and of the land underneath and none objected to the same.
11 It is stated that Smt. Ram Lubhai also used to reside with Shri Kishan Chand Bhatia and was totally illiterate and died on 04.03.1994 leaving behind five sons and one daughter and her two sons namely, Shri Chand Bhatia and Kundan Lal Bhatia died and before death, both had shifted to another property No. 26/68, West Patel Nagar, New Delhi and hence their share in the property devolved on all legal heirs in equal share who have been owners of 50% share of Late Sh. Kishan Chand Bhatia.
12 It is stated that due to mistake, the property in question was shown mutated in the name of Smt. Ram Lubhai and under law. The agreement to sell and mutation cannot be termed as ownership or conferring ownership rights and hence Smt, Ram Lubhai was never an absolute owner of the suit property although she can be termed as co-sharer being widow of late Sh. Ram Chand Bhatia.
M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 5/30 13 It is stated that although the back ground as set out here in above was very well known to the respondent and all concerned but still the respondent filed a petition on 04.01.1997 for the grant of letter of administration on the basis of a will dated 06.02.1985 allegedly left by Smt. Ram Lubhai in favour of the respondent which petition was allowed as per order dated 21.10.2003 and the order dated 21.10.2003 which granted letter of administration to the respondent is to be revoked on the basis of the present petition.
14 It is stated that most of the respondents including the petitioners remained unheard in the matter and the petition so filed by the respondent was decided in the absence of the present petitioners. It is stated that the proceedings to obtain the grant were defective in substance and the grant was obtained fraudulently by making false suggestions and by concealing from the court facts material to the case. The grant was obtained by means of untrue allegations of material facts and the said grant has become useless and inoperative because of the willful defaults committed by respondent no. 1.
15 It is stated that respondent to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of law in respect of the properties for which the grant was granted. It is stated that grant of probate in favour of the respondent is liable to be set-aside on several other grounds as well and the petitioners are to be given chance to contest the said petition on merits. It is stated that Will dated 06.02.1985 of Smt. Ram Lubhai was absolutely forged and fabricated one and M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 6/30 there was no ground for the deceased to executed alleged will in favour of the respondent.
16 It is stated that it is relevant to note that as per writing dated 21.05.1984 executed between the deceased and the respondent which has come into the knowledge of the petitioners very recently, it was mentioned that the property No. 26/67, West Patel Nagar, New Delhi shall be sold in the open market and the respondent and Shri Kishan Chand shall have no objection to the same and will deliver the complete possession of the ground floor of the house. It is stated that it was also stipulated that after deduction of a sum of Rs. 20,000/- as share of deceased Smt. Ram Lubhai from the sale consideration, the remaining amount my be distributed between Shri Madan Lal and Shri Kishan Chand in equal ratio. It is stated that respondent and Shri Kishan Chand shall have equal right in the aforesaid amount after the death of Smt. Ram Lubhai and these terms were agreed by the respondent and the deceased.
17 It is stated that from the terms of the said writing, it is clear that predecessor in interest of the petitioners have right in the aforesaid property and there was no ground for the respondent to file the petition for the grant of probate/letters of administration on the basis of Will dated 06.02.1985 of Smt. Ram Lubhai. It is stated that property in question was an ancestral property hence the deceased had no right to execute will dated 06.02.1985 and petition filed by the respondent was not maintainable. Petitioner seeks revocation of the probate/letter of administration granted as per judgment dated 21.10.2003 in M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 7/30 respect of property No. 26/67, West Patel Nagar, New Delhi in Petition No. 218/2001 titled as Sh. Madan Lal Bhatia Vs State & Ors.
18 Respondent filed written statement to the present revocation petition and taken preliminary objection that the suit of the petitioners is liable to be dismissed with exemplary costs as the petitioners have not approached this court with clean hands and clean intentions. It is stated that suit of the petitioners is liable to be dismissed under order 7 Rule 11 CPC as the same has been filed without any cause of action but just to harass the respondent with petitioner's malafide intention not to hand over the vacant and peaceful possession of some part of the suit property under their occupation, when the petitioners have lost their fight to get some part of the suit property till the Hon'ble Supreme Court of India, by one or the other plea.
19 It is stated that petition is liable to be dismissed as the same has been filed after nine years of the grant of the Letters of Administration on 21.10.2003 which is beyond the limitation law of the land, and by any stretch of law cannot be entertained at this stage.
20 It is stated that the order 21.10.2003 was challenged by all the legal heirs of late Shri Kishan Chand Bhatia, including the present petitioners before the Hon'ble High Court of Delhi, wherein their Stay Application (CM Appl. No. 1748/2003) was dismissed on 11.08.2004 and the FAO No. 874/2003 was dismissed on 21.11.2007 where it has been clearly ordered that M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 8/30 the Letter of Administration has been granted in favour of the respondent correctly and further their SLP No. CC-4343/2008 before the Hon'ble Supreme Court of India against the dismissal order of 21.11.2007 of the Hon'ble High Court of Delhi, was dismissed on 12.05.2008. So the said order granting the Letter of Administration in favour of the respondent has obtained finality and no question of any kind on any ground could be raised now by any of the legal heirs of late Shri Kishan Chand Bhatia, including the present petitioners on any ground whatsoever.It is stated that it is a settled law that when any matter has been finally decided by any higher court of the land no lower/junior court could entertain any petitioner against that order under any law as the higher court judgment always prevails on all the lower court. Other wise also the present petition barred under Section 11 of CPC.
21 It is stated that suit of the petitioners is liable to be dismissed as all the three present petitioners had been a party, along with other legal heirs of late Smt. Ram Lubhai, who had written the Will in question in favour of the petitioner, before the Hon'ble court of ld. Addl. District Judge, Delhi, who at the first instance had granted the Letter of Administration in favour of the respondent on 21.10.2003 after a very strong opposition and long litigation from them before the Hon'ble High Court of Delhi in FAO No. 874/2003 filed by them which was dismissed on 21.11.2007 and also in Hon'ble Supreme Court of India in SLP No. CC-4343/2008 filed by them which was also dismissed on 12.05.2008.
M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 9/30 22 It is stated that petition is liable to be dismissed as the same has only been filed with absolutely malafide, illegal and dishonest intention and on frivolous and fabricated grounds just to harass the respondents at his age of 75 years. It is stated that present petitioners, alongwith other relatives have filed three more suits on the same kind of frivolous and fabricated grounds with the sole malafide and dishonest intention just to delay and delivery of vacant and peaceful possession of some part of the suit property in their possession to the respondent i.e
i) Suit No. 118/10 ( Suit for Declaration), which has been dismissed by the Hon'ble Court of Ms Swati Katiyar, Civil Judge, Delhi on 08.09.2011 under Section 11 of CPC,
ii) Suit No. 194/2010 ( Suit U/s 31 of the Specific Relief Act), which is pending in the Hon'ble Court of Shri Arun Goel, Civil Judge, Delhi
iii) Suit No. 202/2011 ( Suit for Partition) which is pending in the Hon'ble Court of Ms Swati Katiyar, Ld. Civil Judge, Delhi 23 On merit all the contents of the petition are denied and reiterated the preliminary objections taken by them. It is stated that suit property ( i.e. house No. 26/67, West Patel Nagar, New Delhi-110008) was allotted on rent to the father of the respondent ( Latge Shri Ram Chand Bhatia) in 1950 on a monthly rent of Rs. 20/- per month by the Housing Rent Officer, Delhi Province, Delhi who got included the name of his elder son ( Late Shri Kishan Chand Bhatia- father of petitioners) as co-tenant. The father of respondent died in 1957 and thereafter his name was substituted to the name of the mother of respondent, Smt. Ram Lubhai. Thereafter the suit premises from 1957 stood on rent in M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 10/30 the joint name of Smt. Ram Lubhai. Thereafter the suit premises from 1957 stood on rent in the joint name of Smt. Ram Lubhai and Shri Kishan Chand Bhatia.
24 It is stated that on 19.4.1959 the Department of Rehabilitation, Government of India, New Delhi issued a Press- Note for sale of properties allotted on rent and invited applications from the allottees on rent. It is stated that it was only Smt. Ram Lubhai, the mother of the respondent, who applied for the same in her personal individual capacity and the Agreement of Sale for the purchase of the suit property was entered in between herself and the President of India on 08.11.1960, after the initial payment of Rs.795.80 on 26.10.1959 and thereafter six other installments of the balance amount were paid. By this Agreement of Sale and possession of the suit property, Smt. Ram Lubhai, the mother of the respondent, became the sole and absolute owner of the suit property.
25 It is stated that father of the petitioners who was the co-tenant at the initial stages did not apply for the purchase of the suit property so his name was deleted by the department of Rehabilitation, Delhi against which he started litigation against his own real mother, who had become the sole and absolute owner of the suit property in her personal individual capacity by virtue of the said Agreement of Sale in response to the Press- Note, which litigation the father of the petitioners, fought unsuccessfully continuously for four years with the Rehabilitation Department.
M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 11/30 26 It is stated that suit property was put on auction by the department due to non-payment of the balance installments on three occasions and none of the legal heirs of late Ram Lubhai, including the father of the petitioners, who had been co- tenant in the beginning and who had never applied for the purchase of the same in respondent to the Press-Note, came forward to save the same by making the due and demanded payment, but it was only she who somehow or the other by selling her jewellery, etc. saved the said suit property from auction at different times. So it is absolutely wrong to allege that the mother of the respondent was substituted suit property for the benefits of joint family. It is stated that there is no question of joint family.
27 Contents of para B of the petition is also denied and it is stated that when the suit property was put on sale, why the father of the present petitioners did not apply for the same of the same. And since the suit property was mutated in the name of the mother of the respondent, late Smt. Ram Lubhai, after she entered into an Agreement of Sale of the suit property in her individual capacity, and was in possession of the same and when during the next few years she paid few of the installments by arranging funds by herself without anyone's help and save the suit property from auction then why at that time the father of the petitioners did not come forward to save the suit property. It is stated that if the father of the petitioners was honest, was a member of HUF, was a member of joint family, he would have immediately come forward to save the suit property from auction.
M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 12/30 28 It is stated that father of the petitioners, late Shri Kishan Chand Bhatia, who was in litigation with her own real mother continuously for about 35 years then how and under what law the present petitioners are pleading that they have the right either under the tenancy rights or family had been occupying the same as joint family and that all the legal heirs of late Shri Ram Chand Bhatia are owners to the extent of their respective shares in their individual capacity.
29 It is stated that since the suit property was only purchased by the other of the respondent in her personal individual capacity and since with the purchase of the suit property by her, the tenancy right of all the occupants came to an end, then how and under what law now the petitioners are pleadings the same question in this case.
30 It is stated that father of the petitioners had filed a Civil Writ Petition No. 66/79 challenging the ownership of the mother of the respondent, Late Ram Lubai, against the order of Rehabiliation Department, which was dismissed and the title of the entire suit property was decided in favour of mother of respondent, by a judgment delivered by Hon'ble Justice S. Ravindra Bhatt, after about 25 years of hotly contested litigation, which has been printed in the DLT as 118 (2005)DLT 694, against which no revision or appeal was preferred by the petitioners so it has become final.
31 It is stated that all these allegations are a bald lie and since there had been no HUF in the family, and ownership of the M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 13/30 suit property was finally decided by the Hon'ble High Court of Delhi on March 2, 2005 and also in the Probate proceedings decided finally by the Hon'ble Supreme Court on 12.5.2008 and present suit is liable to be dismissed under order VII, Rule 11.
32 It is stated that mother of the respondent, Smt. Ram Lubai, died on 04.03.1994, leaving behind a registered Will whereby the respondent became the exclusive, legal and rightful owner of the suit property. On the basis of registered Will, a Letter of Administration was issued in favour of the respondent on 21.10.2003 by the Hon'ble District Judge, Delhi and after six years of long and hotly contested litigation by all the legal heirs of the mother of respondent, including the present petitioners.
33 It is stated that on the basis of the Letter of Administration the respondent has got the entire suit property transferred in his name in the records of the L & DO and accordingly Lease Deed and Conveyance Deed has been executed and got registered in the name of respondent on 14.02.2006 on the basis of which the respondent got the entire suit property converted as free hold property in his name after paying the full fee and necessary demanded damages to the L & DO on 13.06.2006.
34 The contents of para C are also denied and it is stated that since the suit property was allotted on rent in the two names, then why and under what circumstances the father of the petitioners, late Shri Kishan Chand Bhatia did not come forward to apply to purchase the same in response the Press-notes of the M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 14/30 Department of Rehabilitation. It is stated that the Hon'ble High Court of Delhi has decided this point of tenancy also, along with the title of the suit property, very clearly against the petitioners in the said Civil Writ Petition No. 66/79 decided by it in favour of mother of respondent.
35 It is stated that no part of the suit property as it is in present shape has been constructed by anyone else, but by the mother of the respondent, herself by selling her jewellery at different times with only the help of the respondent to which no other member of the alleged family has contributed anything.
36 It is stated that late Ram Lubhai used to live with the respondent only throughout her life and died also in his house. It is stated that since the suit property had been purchased only and individually by late Ram Lubhai by virtue of which she was the sole and absolute owner of the same there is no question of again and again talking of the same story that late Kishan Chand Bhatia was the owner of 50% of the suit property.
37 It is stated that all the legal heirs of late Smt. Ram Lubhai had been arrayed in the said petition as respondents and everyone took part in the said proceedings and after a long battle before Ld. ADJ, Delhi the said petition was decided in favour of the respondent, which was confirmed by the Hon'ble High Court of Delhi and also by the Supreme Court of India.
M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 15/30 38 It is stated that the present petition of the petitioners has been drafted in such a clever way where in illusion of caused of action is sought to be created, just to misguide this Hon'ble Court which itself is the cause for its rejection under order VII Rule 11 of CPC.
39 It is stated that the property in question had never been an ancestral property, but only belonged to Smt. Ram Lubhai herself alone and she was full entitled to execute Will. All the remaining contents of the petition are denied. Respondents seeks dismissal of the present petition.
40 Petitioners filed replication to the written statement of the respondent and denied all the preliminary objections taken by the respondents and reiterated the contents of their petition. It is stated that respondent withdraw their application under order 7 Rule 11 read with Section 151 CPC vide statement and order dated 10.10.2014.
41 On the pleading of the parties following issues were framed by my ld. Predecessor vide order dated 10.10.2014:-
1. Whether the Letter of Administration issued in favour of respondent- Sh. Madan Lal Bhatia ( petitioner in the original probate petition) in terms of judgment dated 21.10.2013 passed by one of the Ld. Predecessors of this court, is liable to be revoked, as prayed for? OPP
2. Relief M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 16/30
42 It is pertinent to mention here that vide order dated 18.01.2016 the following issues were amended:-
1. Whether the Letter of Administration issued in favour of respondent- Sh. Madan Lal Bhatia ( Petitioner in the original Probate Petition) in terms of judgment dated 21.10.2013 passed by one of the Ld. Predecessor of this court, is liable to be revoked, as prayed for? OPP
2. Whether the present application of the objector are barred by limitation? OPR
3. Relief 43 Petitioners in order to prove their case examined petitioner no. 1 who tendered her evidence by way of affidavit Ex. PW-1/A. 44 In the cross-examination she admitted that in the Probate case filed by the respondent on the basis of the Will 06.02.1985 left behind by Smt. Ram Lubhai, we all three petitioners were party in that suit. She denied the suggestion that the said suit was decided in their presence. She admitted that when Late Sh. Ram Chand Bhatia came from Pakistan with family then in India suit property was given on rent by L&DO of rent of Rs. 20/- per month. She admitted that after the date of late Sh. Ram Chand Bhatia name of his wife entered into the recored as a tenant. She voluntarily deposed that the name of Kishan Chand was also mentioned in the record of L&DO. She admitted that L&DO advertised that the tenants can apply for purchase of tenanted premise.
M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 17/30 45 She denied the suggestion that only Smt. Ram Lubhai had applied for purchasing the tenanted premised in dispute. She voluntarily deposed that Kishan Chand also applied. She cannot produce any record to show that Kishan Chand also applied. She voluntarily deposed that the record is available in the file. She denied the suggestion that L&DO had entered into an agreement of sale of the suit property with only Smt. Ram Lubhai because only Smt. Ram Lubhai had applied for purchase of suit property.
She denied the suggestion that contents of my affidavit of para 3 and it sub paras are false and wrong. She denied that that compliance of U/S 317 of Indian Succession Act done by petitioner within limitation. She further denied the suggestion that letter of administration granted by the court is legal valid.
46 Petitioners further examined Sh. Anup Bhatia I tender my evidence by way of affidavit Ex. PW-2/A which bears my signatures at point A & B. 47 In the cross-examination he admitted that the Probate case filed by the respondent on the basis of will dated 6.2.85 left behind by Smt. Ram Lubhai, and he was contesting on behalf of all the legal heirs of late Sh. Kishan Chand Bhatia. He further admitted that the appeal filed by him in the Hon'ble High Court against the order of the Ld. District Judge for granting Probate in favour of the respondent was dismissed. He also admitted that SLP filed by him in Hon'ble Supreme Court of India was also dismissed. He has signed the affidavit filed in the court today which is Ex. PW-2/A on 01.08.2016. He was residing at N- 83, Kirti Nagar, New Delhi on the day he signed the affidavit Ex. PW-2/A. He denied the suggestion that late Smt. Ram Lubhai was M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 18/30 not having any cash or jewellery worth Rs. One crore as stated by him in the affidavit. He denied the suggestion that the value of the suit property has been mentioned by the respondent is correct. He denied the suggestion that at the time of filing of the inventory there was no income from the suit property as there was no tenant at that time.
48 He further denied the suggestion that after losing the Probate case till Hon'ble Supreme Court and the title of the suit property case filed by his father in the Hon'ble High Court as a writ petition he and another legal heirs of his father have no share in any shape in the suit property. He denied the suggestion that his affidavit containing the averments in respect of the earnings from the suit property at the time of filing the inventory are wrong. He denied the suggestion after loosing various litigation in respect of the suit property he is deposing falsely, when there is nothing in his favour.
49 Petitioner further examined Smt. Madhu Bala Bhatia as PW-3 who tendered his evidence by way of affidavit Ex. PW- 3/A. 50 In the cross-examination she deposed that at present she is coming from her house at Ghaziabad with her daughter who has brought her. She is 8th pass. She cannot read and understand English. She know particulars of the property i.e 26/67, West Patel Nagar, New Delhi. There have been so many cases between the parties in respect of the above property for the so many years. She has attended this court for the first time but she had attended Hon'ble High Court once. She had given a M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 19/30 Power of Attorney in favour of Sh. Anup Bhatia to contest cases on her behalf in respect of the said property. She has signed the affidavit Ex. PW-3/A today in the court building. She had given instruction to counsel to prepare Ex. PW-3/A and accordingly same was prepared on instruction by the counsel. The present petition has been filed for cancellation of the Will as Sh. Madan Lal has filed a probate petition on the basis of bogus Will.
51 PW-3 admitted that letter of administration granted in favour of Sh. Madan Lal from the lower court against which the few legal heirs of Kishan Chand Bhatia had gone in appeal to the Hon'ble High Court which was dismissed. The same person had gone in SLP in Hon'ble Supreme Court which was also dismissed. She admitted that she was a party before the District court in Probate case. She admitted that she was one of the party before Hon'ble High Court and Supreme Court which were dismissed. There was an agreement in May 1987 between Kishan Chand Bhatia , Ram Lubhai and Madan Lal Bhatia which was signed by all the three persons. She denied the suggestion that the above said agreement is not signed by alleged three persons.
52 She denied the suggestion that she is deposing falsely regarding the agreement. This agreement has not been filed in any other case because it was found later on out of the files of my father. She denied the suggestion that the contents of her affidavit are wrong and false. She denied the suggestion that affidavit contains new and additional facts which were not stated in the revocation application. She denied the suggestion that non- applicant has applied all the provisions of law for grant of letter of administration.
M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 20/30 53 Petitioner further examined Smt. Sudesh Kanta as PW-4 who tendered her evidence by way of affidavit Ex. PW-4/A. 54 In the cross-examination she deposed that she is Higher Secondary pass. She has gone through the affidavit Ex. PW-4/A before signing the same. The affidavit was attested in Tis Hazari court when she was present. She denied the suggestion that L.Rs of Neeru were party in the earlier Probate Petition which was decided on 21.10.2003. She was not a party in that Probate Petition. She had given Power of attorney, sometime in 1990 to her brother Sh. Anup Bhatia to contest all the litigations in respect of property no. 26/67, West Patel Nagar, New Delhi. The said power of attorney contained the name and addresses of her all brothers and sisters. At the time of death of late Smt. Ram Lubhai her grandmother she was living at Rohini but she came to Patel Nagar at that time.
55 She denied the suggestion that at the time of death late Smt. Ram Lubhai had no gold articles/jewellery. She admitted that on the day of filing of Revocation Petition in the property in question Shakuntala Chachra with her family and Madan lal Bhatia and his family were residing. She admitted that except the said two families there were no other person occupying the said property at the time of the filing of the petition. Vide separate statement of counsel for the petitioner evidence on behalf of petitioners/applicants were closed on 06.12.2016.
56 The non-applicant Sh. Madan Lal Bhatia appeared in the witness box as DW-1 and tendered his evidence by way of M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 21/30 affidavit Ex. DW-1/A. The documents relied by him in support of his evidence are Ex. DW1/1, which is copy of letter of administration dated 01.03.2004; Ex. DW1/2 is copy of judgment of Hon'ble High Court in WP (C) No. 66/79; Ex. DW1/3 is copy of judgment of Hon'ble High Court in FAO No. 874/03; Ex. DW1/4 is copy of judgment of Hon'ble Supreme Court in SLP No. 4343/08 and Ex. DW1/5 is copy of conveyance deed dated 13.06.2006 (OSR).
57 In the cross-examination he admitted that name of one son of Sh. Ram Chand Bhatia was Sh. Sri Chand, who has died about 20 years back. His wife has also died after the death of her husband. He does not remember the year in which she died. She died before filing of the main petition. She left three children. Out of which one son and two daughters. The daughters were married and even son was also married. He admitted that she had left behind one daughter named Neeru, who was married. Smt. Neeru has died but I do not remember the exact year. Smt. Neeru was not made party as she had already died.
58 He further admitted that she has left behind her children. To his knowledge she has left behind five daughters. He does not remember the names of them. These daughters were made parties. He denied the suggestion that these daughters were not made parties. He has no visiting terms with them. The other daughter of Sh. Sri Chand has also died. She died in the year 2016. He denied the suggestion that she died in the year 2016. She has not brought any death certificate. Sh. Kishan Chand had eight children. All were made parties except one who had died in 1992 to 1994. He does not know the exact M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 22/30 date. He has no death certificate to show as to when he had died. (Objected to). Sh. Kundan Lal, who was one of the son of Sh. Ram Chand Bhatia had also died many years ago. His wife has also died but I do not know her date and year of death.
59 He further deposed that he does not remember the exact number of legal heirs left by her. He denied the suggestion that he had obtained letter of administration fraudulently by making false concealing material facts of the case. He denied the suggestion that he has committed willful defaults in obtaining the letter of administration. He admitted that a writing was left dated 21.05.1987 by Smt. Ram Lubhai. Again said the writing was of 21.05.1984 and not of 21.05.1987. He had not filed the this writing in the original probate petition. He is not in possession of the writing dated 21.05.1987. It is correct that he had gone through the said writing. He admitted that the said writing was with respect to West Patel Nagar property in question. He denied the suggestion that the property in question was ancestral property. He denied the suggestion that Smt. Ram Lubhai had no right to execute the Will. He denied the suggestion that inventory filed him is wrong as he has not shown the possession of Sh. Jagdish Lal of the first floor of the property in question.
60 He further stated that Sh. Jagdish Lal had vacated the property in the year 2008. He denied the suggestion that Sh. Jagdish Lal had vacated the first floor immediately after 21.11.2003. He denied the suggestion that he deliberately not mentioned this fact in my inventory. He voluntarily deposed that Inventory was filed after Sh. Jagdish Lal vacated the first floor.
M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 23/30 Nobody was in occupation of first floor of the property except me. He admitted that he has filed a suit for possession and damages against all legal heirs of Sh. Kishan Chand, total 7 in number at present. This suit is pertaining to the back portion of the property.
61 He further denied the suggestion that he has not mentioned this fact in his inventory. He had not enquired the market value of the property in question on the date of filing of inventory. He denied the suggestion that market value of the property in question on the filing of inventory was more than Rs.2 Crores. No valuation report was sought at the time of filing of inventory. He denied the suggestion that he used to let out first floor, which was in his possession of the property in question. He denied the suggestion that he used to keep paying guests and having earning of Rs.20 thousand per month. He denied the suggestion that he was earning Rs.1 lacs from the tenants and paying guests.
62 He further denied the suggestion that he has not mentioned about lease deed and conveyance deed in the inventory. He denied the suggestion that he has deliberately and intentionally filed the inventories late and there is no cause of delay as mentioned with regard to death of son and wife. He is suffering from hard of hearing and having two machines as a hearing aid. He is also suffering from BP and knee problem. The letter of administration granted by him containing the clauses of filing of inventories along with period. He does not remember about these clauses.
M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 24/30 63 He denied the suggestion that he had not cited all the LRs of legal heirs of Sh. Ram Chand Bhatia and Smt. Ram Lubhai Bhatia in the petition. He denied the suggestion that he had not disclosed correct facts in the petition. He denied the suggestion that the suit property was not owned by Smt. Ram Lubhai. He denied the suggestion that in 1970 legal heirs of Sh. Kishan Chand Bhatia raised further construction in the suit property. He denied the suggestion that that entire family invested in raising the said construction. Vide separate statement of counsel for the non-applicant, evidence on behalf of non-applicant, Madan Lal Bhatia was closed on 27.02.2017.
64 It is pertinent to mention that applicant Smt. Shakuntala Chachara expired on 13.04.2017. Accordingly an application under order 22 Rule 3 CPC was allowed vide order dated 20.03.2018 and L.Rs of deceased petitioner, namely, Sh. Raj Kumar Chachra, Sh. Mehak Bhatia, Sh. Harish Bhatia and Ms Divya Chachra were impleaded.
65 I have heard Sh. C.P. Vig, ld. Counsel for the applicant and Sh. Subhash Sharma, ld. Counsel for non-applicant and perused the record.
66 My findings on issues is as under:-
Issue no. 2 The principal of law with regard to application of Limitation Act is well settled by the Apex Court in the case of in KRISHAN KUMAR SHARMA VS. RAJESH KUMAR SHARMA (2009) 11 SCC 537 and in "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", (2008) 8 SCC, 463.
M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 25/30 67 Now coming to the case in hand. It is admitted case of the applicant that Sh. Madan Lal Bhatia had filed Probate Petition on 12.01.2001 in respect of a registered will of deceased Smt. Ram Lubhai dated 06.02.1985. All the three applicants, namely Smt Shakuntala Chachra ( since deceased), Smt. Sudesh Kanta and Smt. Madh Bala Bhatia were impleaded as L.Rs. It is further admitted by the applicants that they contested the original Probate petition and filed written objections. The Probate petition was decided vide judgment dated 21.10.2003 by the then ld. ADJ Sh. G.P. Mittal. The petition was allowed and letter of administration was granted in favour of non-applicant Sh. Madan Lal Bhatia.
68 It is further admitted by the applicants that an appeal was filed by Sh. Jagdish Lal Bhatia & Ors. Before the Hon'ble High Court the Hon'ble Mr. Justice Pradeep Nandrajog decided the appeal FAO 874/2003 vide judgment dated 21.11.2007 whereby appeal was dismissed. This judgment has been reported also as 2008 (100) DRJ 98. It is further admitted by applicants that SLP was preferred before the Hon'ble Supreme Court. The SLP was also dismissed vide order dated 12.05.2008 by Hon'ble Mr. Justice P.P. Naclekar and Mr. Justice V.S. Sirpurkar.
69 It is admitted on record that the present revocation petitioner filed by all the three applicants on 12.07.2010. The record established that all the three applicants first exhausted the remedy of appeal before the Hon'ble Supreme Court and then invoked the Section 263 Indian Succession Act for revocation of letter of administration.
M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 26/30 70 In my considered opinion, it is well within the knowledge of the applicants as they contested the Probate Petition and the judgment of ld. ADJ dated 21.10.2003. The present revocation petition filed in July 2010 after about the seven years. As per Article 137 of Limitation Act for all petitions and applications under Indian Succession Act, the limitation is three years. In the present peculiar facts and circumstances of the case, in my considered opinion the limitation started in October 2003 when original probate petition decided by the then ld. ADJ.
71 The revocation is an independent remedy available to the applicants but subject to limitation. The limitation started in October 2003. The present revocation petition is filed in July 2010 which is patently barred by limitation. The limitation for filing revocation petition starts in October, 2003, as applicant well aware of judgment dated 21.10.2003 being party.
72 On the basis of above observation and discussion, issue no. 2 is decided in favour of non-applicant respondent and against the applicants.
73 Issue No. 1In order to discharge this issue applicants examined applicant Smt. Shakuntala Chachar as PW-1, Sh. Anup Bhatia as PW-2, Smt. Madhu Bala Bhatia as PW-3 and Smt. Sudesh Kanta as PW-4, their examination and cross-examination has been discussed herein above in detail.
M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 27/30 74 At the outset, it is pertinent to mention here that applicants concealed the material fact that the original judgment of ld. ADJ dated 21./10.2003 has been challenged before the Hon'ble High Court and Hon'ble Supreme Court and dismissed and attain the finality. Although Section 263 of Indian Succession Act is independent remedy but is the duty of the applicants to apprise the court in this regard as well.
75 Now coming to the main grounds for revocation as pleaded and testified by applicants. The applicants now try to set up totally denovo pleas whereby attempt has been made to establish that the subject property of the Will is a joint/ancestral property. It is pertinent to mention here that it has not been disclosed that there were other civil suits filed for the subject matter of the Will. The respondents in the written replied has specifically stated that a suit for declaration bearing suit no. 118/10 filed before ld. Civil Judge, Ms Swati Katiyar and same was dismissed under Section 11 CPC vide order dated 08.09.2011. Another suit No. 194/2010 filed under Section 31 of the Specific Relief Act before the court of Sh. Arun Goel, ld. Civil Judge. Another civil suit bearing no. 202/11 for partition also filed. The applicants have already taken appropriate legal remedy by filing civil suits.
76 In my opinion, by way of revocation petition this court cannot go into the question of determining the nature of the property i.e subject matter of the will that it was joint/ancestral or not. It is pertinent to mention here the Hon'ble Supreme Court has up held the original judgment of Probate court dated 21.10.2003.
M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 28/30 77 The applicants further taken the grounds which are reproduce as per Section 263 sub clauses, however, no substance brought on record to substantiate that the grant was defective in substance and was obtained fraudulently. It is pertinent to mention here that applicants contested the Probate Petitioner by filing written statement and also led the evidence.The plea with regard to forged and fabricated will has already been culminated vide the decision of the original probate court which was confirmed by the Hon'ble High Court as well as Hon'ble Supreme Court.
78 Now coming to the ground that Sh. Madan Lal Bhatia, non-applicant/petitioner in original petition has not complied Section 317 of Indian Succession Act and no inventory has been filed. It is admitted on record that applicants contested the probate petition till Supreme Court and after loosing the battle, the present revocation petition has been filed. It is also brought on record by the respondents/non-applicant, Madan Lal Bhatia that apart from the appeal up the Hon'ble Supreme Court they also filed several other civil litigation, such as, suit for declaration, partition and under Specific Relief Act.
79 As per another connected misc. application Sh. Madan lal Bhatia had filed application under Section 317 for filing inventory on 08.02.2012 after the decision of Supreme Court with the request to condone the delay. In my considered opinion, where parties have been contesting up to the Hon'ble Supreme Court and similar other parrel litigations are going on thereafter as well. In addition to it, it is informed that son of main petitioner was also died during this period and was around the age of 36 M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 29/30 years. The circumstances of continuous a decade litigations from all corners and family circumstances, especially the death of the son, are sufficient grounds for causing delay in filing the inventories. In my considered opinion, as per Section 263 (e) there is no willful and without reasonable cause Sh. Madan Lal Bhatia was not exhibited the inventory or account as per provisions of Chapter 7 of the Indian Succession Act. In the peculiar and especial facts and circumstances of the case, I do not find any violation of Section 263 (e) by Sh. Madan Lal Bhatia. Therefore, I do not find this ground is proved for revocation of grant of letter of administration.
80 On the basis of above observation and discussion, the issue no. 1 is decided against the applicants and in favour of non- applicant.
Relief 81 On the basis of findings on issue no. 1 & 2, the revocation petition is dismissed with cost of Rs. 25,000/-. Out of which Rs. 15,000/- be deposited with www.bharatkeveer.gov.in and Rs. 10,000/- be paid to non-applicant, Sh. Madan Lal Bhatia. File be consigned to record room.
John Digitally signed
by John Doe
Date: 2018.05.08
Doe 21:26:53 +0530
(Announced in the open (SANJAY KUMAR)
court on 7th May, 2018 ADJ-02 (West)
Tis Hazari Courts
Delhi
M. No. 28/10 Shakuntalla Chachra & Ors.Vs Madan Lal Bhatia 30/30