Delhi District Court
All Sons And Daughters Of Deceased vs ZiaUlHasan (Deceased) on 30 April, 2012
IN THE COURT OF SH. A.K. CHAWLA : DISTRICT JUDGE
(NORTH) DELHI
MPC 5/2006
Unique Case ID No.02401C0004571998
Shaikh Mohd. Haroon (deceased)
S/o Late Mohd. Yaqoob,
Now represented through LRs
(i) Shaikh Mohd. Iqbal (son)
(ii) Mohd. Irfan (son)
(iii) Mohd. Nadeem (son)
(iv) Mohd. Yusha (son)
(v) Mohd. Owais (son)
(vi) Aisha Begum (daughter)
(vii) Fatima Begum (daughter)
(viii) Shaida Begum (daughter)
All sons and daughters of deceased
Late Shaikh Mohd. Haroon
All R/o 5131, Gali Laltainwali,
Quresh Nagar, Sadar Bazar, Delhi. .....Petitioner
Versus
ZiaulHasan (deceased)
Now represented through LRs
(i) Haseena Begum (mother)
W/o Noorul Hasan
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(ii) Mehmoodul Hasan (brother)
S/o Noorul Hasan
(iii) Anwar (brother)
S/o Noorul Hasan
(iv) Yaqoob (brother)
S/o Noorul Hasan
(v) Khalil (brother)
S/o Noorul Hasan
(vi) Yunus (brother)
S/o Noorul Hasan
(vii) Chaman Begum (sister)
D/o Noorul Hasan
(viii) Mubina Begum (sister)
D/o Noorul Hasan
(ix) Fatima Begum (sister)
D/o Noorul Hasan
(x) Amina Begum (sister)
D/o Noorul Hasan
all residents of 5213, Sadar Thana Road,
Baratooti, Sadar Bazar,
Delhi 110 0016. .....Respondent
Date of Institution of the application : 10.09.1998
Date of reserving the judgment : 24.04.2012
Date of pronouncement : 30.04.2012
JUDGMENT
By the application filed U/s 263 of the Indian Succession MPC5/06 Page 2/16 Act, the applicant seeks revocation/annulment of Letters of Administration to Sh. ZiaulHasan in respect of the Will Ex.P1, with regard to the properties detailed in the schedule of properties dated 20.1.1995 subject matter of probate case No. 284/95 titled Ziaul Hasan Vs. State.
2. Application proceeds on the premise that Sheikh Zafar Ahmad hereafter referred to as 'the testator', died leaving behind brother Sheikh Mohd. Yusuf and two sisters namely SamiunNisa and Fasih unNisa, having orally devised/bequeath his properties subject matter of Will, in favour of the applicant, who was the son of his tenant namely Noorul Hasan. It is also the case of the applicant that the oral Will made by Sheikh Zafar Ahmad, after his demise, was admitted and accepted to by his brother Sheikh Mohd. Yusuf and by nature of the award dated 22.7.1988, made Rule of the Court by the Hon'ble High Court on 22.2.1989, the applicant had become the sole and the absolute owner of the properties of Sheikh Zafar Ahmad, but, all such facts were concealed and suppressed by the nonapplicant Ziaul Hasan, while obtaining the Letters of Administration vide judgment dated 8.7.1997.
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3. In the reply filed, the nonapplicant, while denying the averments and the allegations made in the application, save and except the admissions made therein, took the preliminary objections viz. applicant had no locus standi to file the application, in as much as, he did not come either within the ambit of legal heirs nor in the category of the persons interested in the estate of the deceased; Certificate/Letters of Administration were not yet issued to the applicant and therefore, no order could be made before the issuance of the certificate of Letters of Administration or Probate Certificate; applicant had suppressed material facts and in collusion with the Arbitrator, prepared some documents and therefore, was not entitled to file the application on the basis of forged documents; and, no cause of action had arisen in favour of the applicant to file the application. On merits, the nonapplicant took the plea that the applicant had concocted story of an oral devise and bequeath made by 'the testator'. Also, according to the nonapplicant, applicant was having no relation or concern with 'the deceased' and the nonapplicant in fact, did not know such fact. Also, according to the nonapplicant, brother of 'the testator' was elder and died prior to 'the testator'.
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4. In the rejoinder filed, save and except the admissions made, the applicant reiterated averments and the assertions made in the application.
5. On the pleadings of the parties, the following issues came to be framed :
(i) Whether the applicant Mohd. Haroon has got locusstandi for revocation of letters of Administration?
(ii) Whether the granting of letters of administration dated 8.7.97 is liable to be revoked at the request, as stated in the application filed by applicant Mohd. Haroon.
(iii) Relief.
6. In support of his case, applicant examined himself as PW1; PW2 Sh. S.S. Panwar, Head Clerk, SubRegistrarI; PW3 Sh. Yogesh Kumar, UDC from Competent Authority (Slum); PW4 Sh. Kamesh Saha, Record Keeper (Decided), High Court; PW5 Sh. Munesh Kumar, LDC, SubRegistrar, Kashmere Gate; PW6 Sh. Pitambar, LDC, Record Room (Civil); and PW7 Sh. Sanjay Kumar, LDC, Record MPC5/06 Page 5/16 Room Sessions and closed PE. Nonapplicant examined RW1 Sh. Vijay Kumar, Head Clerk, Delhi Jal Board; RW2 Sh. S.K. Srivastva, Sr. Accountant, Evacuee Property Cell, Land & Bldg. Deptt.; RW3 Sh. Ram Kisha, UDC, Property Tax Department, Paharganj Zone, MCD; and RW4 Sh. Mohd. Yakoob and closed his evidence.
7. Applicant PW1 in his depositions by way of affidavits Ex.P1 and Ex.PX, deposed, as averred to in the petition, which is not being reproduced for the sake of brevity. In addition thereto, he also deposed that his father was admittedly the tenant under Sheikh Zafar Ahmad and that, the applicant's father Sheikh Noorul Hasan had also admitted that 'the testator' had devised and bequeathed his properties including the tenancy premises, in his favour. He also deposed that he was collecting rent of the property bearing municipal bearing 2723H, Gali Barnawali, Sadar Bazar, Delhi, which was under the possession and occupation of nonapplicant's father Sheikh Noorul Hasan and that, now Sheikh Noorul Hasan was his tenant and that, the counterfoil of the rent receipts issued by him to nonapplicant's father were Exs.PW1/7. He has also deposed that the statement before the Probate Court is falsified by the nonapplicant's own statement MPC5/06 Page 6/16 Ex.PW9 and that of his father, in suit No. 118 of 1990 and MCA No. 120/90, Ex.PW6.
PW1 as such, deposed to prove that the nonapplicant got the judgment dated 8.7.1997, on the basis of misrepresentations and concealment of material facts.
PW2 was only partly examinedinchief and was never produced again for crossexamination. His deposition is therefore, of no avail. PW3 brought the record of the petition titled Sheikh Mohd. Haroon Vs. Sadajeet Lal before the Competent Authority (Slums) and proved the certified copy of the application U/o 1 R.10 read with Sec. 151 CPC Ex.PW3/A; certified copy of the affidavit in support of the application Ex.PW3/B; certified copy of the reply and the affidavit in support thereof, Exs.PW3/C & PW3/D; and, certified copy of the order dated 11.12.1998 passed by the Competent Authority Ex.PW3/E. He also brought the record pertaining to the petition titled Sheikh Mohd. Haroon Vs. Subhash Chand Jain and proved the certified copy of the application filed U/o 1 R. 10 CPC and the affidavit thereof, Ex.PW3/F and PW3/G; certified copies of the reply and the affidavit in support thereof, Exs.PW3/H & PW3/I respectively; and, the certified copy of the order passed by the Competent Authority on 9.3.1999 Ex.PW3/J. MPC5/06 Page 7/16 PW4 brought the record from the High Court and deposed that the original Award was Exbt. PW2 and the judgment dated 22.02.1989 alongwith the decree was Exbt. PW3 (colly).
PW5 came from the office of subregistrar and proved the certified copy of the regd. judgment and the decree as Ex.PW2/1.
PW6 proved the written statement and the application U/s 151 CPC filed Noor Hasan in suit No. 120/90 titled Ram Kishan Vs. Mohd. Shakir as Exs.PW6/A & PW6/B respectively and the rent receipts dated 1.5.1989 and 1.1.1990 as Exs.PW6/C & PW6/D respectively.
PW7 proved the certified copy of MCA158/90 and M8/2000, both titled Sheikh NoorulHasan Vs. Mohd. Shakir as Exs.PW7/A & PW7/B.
8. RW1 deposed that there were two water connections in the name of Zafar Ahmad in property No. 52185219, Gali Barna, Sadar Thana Road, Sadar Bazar, Delhi.
RW2 came from the Evacuee Property Cell, Land & Building Department and brought the records of properties restored to Mohd. Hafiz Yaqoob.
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RW3 came from the Property Tax Deptt. of MCD and deposed that 'the testator' and Mohd. Yusuf were assessed to property tax with respect to properties nos. 38233826; M/s Zafar Ahmad & Ors. were assessed to property tax with respect to property No. 8227; M/s Zafar Ahmad & Mohd. Yusuf were assessed to property tax with respect to property no. 8755; and M/s Zafar Ahmad & Mohd. Yusuf were assessed to property tax with respect to property No. 3722 to 3724 and 3814/1.
RW4 Yaqoob tendered in evidence his detailed affidavit Ex.RW4/A, while disclosing that the testator had left behind six brothers and sisters and proved the certified copy of order dated 12.011953 passed by Assistant Custodian Ex.RW4/1; certified copy of order dated 14.11.1949 Ex.RW4/2; certified copy of order dated 14.11.1949 Ex.RW4/3; certified copy of order dated 22.09.1952 Ex.RW4/4; certified copy of another order passed by Assistant Custodian Ex.RW4/5; copy of death certificate Ex.RW4/6; certified copy of will Ex.RW4/7; copy of his death certificate Ex.RW4/8; certified copy of publication Ex.RW4/9; certified copy of judgment dated 08.07.97 Ex.RW4/10; certified copy of application u/s 14 and 17 of Arbitration Act and Award Ex.RW4/11 (collectively); copy of MPC5/06 Page 9/16 death certificate of Zia Ul Hasan Ex.RW4/12; and copy of death certificate of Noor Ul Hasan Ex.RW4/12.
9. I have heard the Ld. counsel for the parties and perused the record carefully.
10. My issuewise findings are as follows :
ISSUE NO.2:
Whether the granting of letters of administration dated 8.7.97 is liable to be revoked at the request, as stated in the application filed by applicant Mohd. Haroon ?
In view of the fact that the factual conspectus to be discussed under the issue no.1 is also to form part of the issue no.2, issue no.2 is taken up for finding thereon, in the first instance.
Grant of probate or Letters of Administration can be revoked or annulled for just cause, as provided for U/s 263 of the Indian Succession Act. Explanation attached to the said section provides that just cause shall be deemed to exist interalia, when the grant was obtained fraudulently, by making a false suggestion or by concealing from the Court, something material to the case. Invoking the said provision, ApplicantSheikh Mohd. Haroon has approached MPC5/06 Page 10/16 the Court for seeking revocation or annulment of the judgment for grant of Letters of Administration to the nonapplicant ZiaulHasan, in respect of the Will Ex.P1, with regard to the properties detailed in the schedule of properties forming part of the probate petition. It is the case of the applicant that 'the testator' died leaving behind a brother and two sisters, having devised and bequeathed his properties in his favour and the applicant had become the sole and absolute owner of the properties by virtue of the award made Rule of the Court and the decree following it, but, such facts were suppressed by the non applicant, while seeking the probate/Letters of Administration. Before I advert further to the plea of the applicant Sheikh Mohd. Haroon for revocation/annulment of the Letters of Administration granted to the nonapplicant ZiaulHasan, it is very relevant to note that the Letters of Administration came to be ordered to be granted to the non applicant ZiaulHasan in pursuance of the uncontested proceedings and that, no citation of the petition was issued for any of the relations of 'the testator'. It so happened, when the nonapplicant ZiaulHasan by himself in the instant proceedings, has led evidence to the effect that 'the testator' had left behind brothers and sisters. Nonapplicant's witness RW4, in his deposition by way of affidavit Ex.RW4/A, has MPC5/06 Page 11/16 deposed as under :
"1. That prior to the partition of India. Hafiz Mohammed Yakub was only original and absolute owner of his all movable and immovable properties including the properties in the present case and he was residing at Delhi since the time of his ancestors along with the following six LR's :
(I) Zaffar Ahmed (son)
(II) Mohammed Yusuf (son)
(III) Must Wasiunnissa (daughter)
(IV) Must Fasiunnissa (daughter)
(V) Must Samiunnissa (daughter)
(VI) Must. Zebunnissa (daughter)
2. At the time of partition of India, except original owner - Hafiz Mohammed Yakub and his son namely Zaffar Ahmed, all remaining LR's had migrated to Pakistan wherein they all became Pakistani Citizens without claiming their rights concerned with the properties of Hafiz Mohammed Yakub in Pakistan or India for their rehabilitation.
3. That during the time of partition, all tenants who want to grab all properties of Hafiz Mohammed Yakub due to disturbance of partition filed complaints for vesting his all properties before custodian of enemy property for India, Enemy Property Act and still intended to grab the same but Hafiz Md. Yakub had contested his all cases before the custodiancourt of Evacuee Property for realising/restore the properties wherein the custodian department of India at New Delhi had considered that Hafiz Md. Yakub is owner of his all vested properties MPC5/06 Page 12/16 which were released and notification were cancelled and issued in the Gazette and further directed that all rent should be paid by all tenants in future to Hafiz Md. Yakub (copies of which are Ex.PW4/1 to Ex.PW4/5).
4. That thereafter, Hafiz Md. Yakub had continuously received rent from his all tenants up to his death on
13.10.1956 (copy of death certificate is Ex.PW4/6) without any objections of any person or custodian department of India about title of Hafiz Md. Yakub and further his alone son namely Zaffar Ahmed who was a permanent resident of Delhi (India) continuously receiving rent of all properties from his tenants up to his death alongwith NoorulHasan occasionally due to a close friendship of childhood and a family relationship since the time of Hafiz Md. Yakub."
By the abovesaid deposition, the nonapplicant by himself admits the fact that 'the testator' died leaving behind brothers and sisters and would have naturally succeeded to his estate, in the absence of any other legal heir. Of course, said brothers and sisters were the near relations of 'the testator' and were required to be informed of the probate proceedings initiated by the nonapplicant, but, nonapplicant did not disclose so, in the probate petition filed. In fact, such a material fact was withheld by the nonapplicant from the Court. Apparently, with ulterior motives. The probate petition filed by the nonapplicant proceeded on the averment that 'the testator' had no legal MPC5/06 Page 13/16 heir whatsoever and to that effect, even an affidavit, came to be filed. Perusal of the probate proceedings also reveals that on 1.2.1996, ld. counsel for the nonapplicant stated before the Court that 'the testator' was not having any other relation barring the petitioner/nonapplicant. Both the statements of the counsel, as also the affidavit filed by the nonapplicant, in view of the abovesaid admitted factual position that 'the testator' was left behind brothers and sisters, were false. Certainly, therefore, there was concealment of facts, which were material to the probate petition. On this aspect, ld. counsel for the nonapplicant strenuously contended that the brothers and sisters of the nonapplicant had migrated to Pakistan and under the Enemy Property Act, were not entitled to any interest in any of the properties of 'the testator'. It may be assumed so, but, it did not take away their relationship nor can it be assumed so, under any cannons of legal jurisprudence. They being the near relations, even if, it is assumed, they were not the legal heirs to succeed to the estate of 'the testator', were required to be disclosed in the probate petition. It was more so required to be disclosed, when the nonapplicant by himself was having no relation with 'the testator'. Concealment of such material facts in the probate proceedings, by itself, in my considered view, is sufficient to revoke/annul the probate MPC5/06 Page 14/16 granted, vide judgment dated 8.7.1997. Then, the bequeath made under 'the subject Will', as stated therein, proceeds on the following premise :
".......................................................................................... I have great affection towards the beneficiary of this deed of Will because he is looking after, maintaining and feeding me nicely like my own son and I am so happy with the attitude of the beneficiary of this Deed i.e. Zia ulHasan. Hence, I am executing this Deed of Will in his favour.
.........................................................................................."
Nonapplicant, in his deposition, during the uncontested proceedings, however, deposed that 'the testator' was treating him like his son and he also used to treat him like his father and living with him, wherever, 'the testator' used to live. There is however, not even an iota of any material much less cogent evidence, for the non applicant, having ever stayed with 'the testator' and served him like father or otherwise. It is another circumstance, which casts serious doubt on the veracity and genuineness of the Will Ex.P1. Even, none of the attesting witnesses to the Will Ex.P1 has come to be examined on behalf of the nonapplicant.
In view of the foregoing, issue in hand is answered in the MPC5/06 Page 15/16 affirmative.
ISSUE NO.1 :
Whether the applicant Mohd. Haroon has got locusstandi for revocation of letters of Administration?
Under issue no.2, it has been concluded that the applicant was a near relation of 'the testator', but, such fact was concealed by the nonapplicant from the Probate Court. Applicant therefore, did have the locus standi to file the application for revocation. In view thereof, issue in hand is answered in the affirmative.
RELIEF :
Application seeking revocation/annulment of judgment dated 8.7.1997 for grant of Letters of Administration in respect of Will Ex.P1 in probate case No. 284/95 titled ZiaulHasan Vs. State, is allowed. Consequently, judgment dated 8.7.1997 is set aside.
Announced in the open Court (A.K. Chawla)
on 30th day of April, 2012 District Judge(N)/Delhi
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