Delhi District Court
Smt. Chander Prabha vs State on 2 August, 2017
IN THE COURT OF SHRI A.S. JAYACHANDRA, DISTRICT & SESSIONS JUDGE,
DISTRICT SHAHDARA, KARKARDOOMA COURTS, DELHI
PC No. 38/2016
Smt. Chander Prabha
W/o Shri Ravinder Kumar Panchal
D/o Late Shri Shiv Dutt Panchal
R/o 1/4596, Ram Nagar Extension,
Mandoli Road, Shahdara,
Delhi-110032. ........Petitioner
Vs.
1. State
2. Smt. Laxmi Devi
W/o Late Shri Shiv Dutt Panchal
R/o 1/4564, Ram Nagar,
Mandoli Road, Shahdara,
Delhi.
3. Mukesh Panchal
S/o Late Shri Shiv Dutt Panchal
C/o Monareh Public School,
B Block, Harsh Vihar,
Delhi-110093.
4. Inder Bhushan Panchal
S/o Late Shri Shiv Dutt Panchal
R/o 1/4564, Ram Nagar,
Mandoli Road, Shahdara,
Delhi-110093. ........Respondents
Date of Institution - 02.09.2011
Arguments concluded on - 21.07.2017
Date of final Order - 02.08.2017
ORDER
Facts pleaded by the petitioner
1. This is a petition filed with a prayer to grant the succession certificate/letters of Administration concerning three immovable properties, the service benefits, bank accounts of Late S.D. Panchal. This petition is filed by his daughter who has arraigned her mother and two brothers as respondents 2 to 4 apart from the State. The list of documents filed by the petitioner alongwith the petition are the photocopy of the Secondary School Examination and Senior School PC No. 38/16 Chander Prabha vs. State 02.08.2017 Page1/12 Certificate Examination of the petitioner and no other documents are filed to show the estate of the deceased father of the petitioner.
2. The additional information furnished along with the prescribed format is to the effect that the respondents 2 to 4 made the petitioner to believe that they would enter into a family settlement and accord her share in the estate of her late father. The respondents have not disclosed the assets left over by her late father. Respondent no. 3 is running a school. She was not given the share of the proceeds from the service benefits of her late father who served MMHB Inter College, Ghaziabad. There is no family settlement.
3. The petitioner submits that she is entitled for Letters of Administration to the estate of Late S.D. Panchal and that respondents 2 to 4 are resorting to unlawful activities in collusion among them. If any documents crop up, they are brought with such collusion to deprive her share. She also apprehends that some of the properties are disposed off by the respondents. Petitioner is the class I legal heir of deceased, who lived within the territorial jurisdiction of this court and there are no other legal heirs than the parties to the litigatiion.
4. My Ld. Predecessor had directed the issuance of notices to the respondents and also ordered for the citation to be published. The respondents 2 to 4 have entered appearance and they have filed their objections. Gist of the Statement of Objections by R-2 to R-4.
5. In the Statement of Objections the respondents contend that the petitioner has no locus to seek Letters of Administration concerning the three properties namely i) 1/4564, Ram Nagar, Shahdara, ii) D-4, Gali No. 6, Karawal Nagar and iii) B Block, Harsh Vihar (premises number not mentioned). According to the respondents these properties never comprised of the estate of Late S.D. Panchal. The relationship is admitted. Property no. 3 is purchased by respondent no. 3 vide a GPA, Agreement to Sell, Receipt and Will executed by the vendor Bhupesh Kumar. This is the self acquired property of respondent no. 3 and none of the parties to the suit have any interest in this property.
6. It is also pleaded that property no. 2 i.e. D-4, Gali no. 6, Karawal Nagar is the self acquired property of respondent no. 2 Laxmi Devi having PC No. 38/16 Chander Prabha vs. State 02.08.2017 Page2/12 purchased the same from H.S. Sharma under the similar documents. After purchasing the same, R-2 had conveyed the same to respondent no. 4 I.B. Panchal under similar documents dated 15.05.2001. Likewise the first property bearing no. 1/4564, Ram Nagar Extension is the self acquired property of R-2 by similar documents executed by the vendors Mohar Sridevi @ Maheshwari Devi and Smt. Parwati Devi. Thereafter the same was transferred by respondent no. 2 in favour of respondent no. 4 by the documents dated 07.01.2003 and a portion to respondent no. 3 by executing documents dated 07.01.2003.
7. According to the respondents Late S.D. Panchal had never owned any of these properties and this petition is highly misconceived and liable to be dismissed. The additional information furnished alongwith the petition are all denied as false and incorrect. The respondents pray for dismissal of the petition.
8. The replication is filed affirming the petition averments. The petitioner denies the allegation that she has no right, title or interest in the properties and that Late S.D. Panchal never owned these properties. She pleads that she being the daughter is entitled for the Letters of Administration.
9. During the course of proceedings, my Ld. Predecessor by an order dated 19.02.2016 had dismissed the application of the respondents seeking rejection of the petition u/o 7 rule 11 of CPC with cost of Rs.3000/- holding that since the respondents have already taken up similar contentions in written statement, there was no need to have agitated the relief under order 7 rule 11 of CPC.
10. However, the matter was sent for mediation. The same came back unsettled. When the matter is listed for hearing on issues for determining the points that may arise for adjudication, it was urged by the respondents 2 to 4 that the properties involved in the petition never belonged to the estate of Late S.D. Panchal and the service benefits were given to the widow i.e. R-2. Considering the submissions, this Court felt that the ascertainment of allegations made in the pleadings be put to admission and denial by examination of the parties u/o 10 of CPC.
PC No. 38/16 Chander Prabha vs. State 02.08.2017 Page3/12Inquiry u/o 10 of CPC.
11. Accordingly this court has recorded the statement of the petitioner. She in her statement dated 07.07.2017 was confronted with the documents produced by the respondents which she admits. She had made it very clear that she does not have any documents to show that these properties belonged to the estate of her late father S.D. Panchal.
12. In the joint statement of respondents 2 to 4, it is averred by them that the immovable properties mentioned in the petition was never the part of the estate of Late S.D. Panchal. Respondent no. 2 Laxmi Devi had drawn the terminal benefits of her late husband and that she is drawing family pension of Rs.10,000/- per month. It is also offered by respondent no. 3 Mukesh Panchal that he is willing to offer a sum of Rs.2 Lacs to the petitioner and likewise respondent no. 4 is willing to offer Rs.3 Lacs and these offers are given by the respondents only as a gesture of their filial love towards their sister and as a token of goodwill which the petitioner refused.
Points for determination
13. In the light of the above pleadings and statements of parties recorded u/o 10 of CPC, this Court is to keep in mind the provisions under which the present petition is filed. Though no specific provision is invoked in the petition, the grant of Probate and Letters of Administration are dealt under Part IX of the Indian Succession Act. Admittedly there is no testament by the Late S.D. Panchal. Section 218 of the Indian Succession Act reads as under:
"218. To whom administration may be granted, where deceased is a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person. - (1) If the deceased has died intestate and was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased's estate.
(2) When several such persons apply for such administration, it shall be in the discretion of the Court to grant it to any one or more of them. (3) When no such person applies, it may be granted to a creditor of the deceased".
14. The words used that the Administration may be granted to any person under intestate succession to the estate of the deceased according to rules PC No. 38/16 Chander Prabha vs. State 02.08.2017 Page4/12 of distribution of the estate applicable in the case of such deceased. The emphasis is on the word "estate".
15. As quoted in the Encyclopaedic Law Lexicon of Justice C.K. Thakker 2013 Second Edition, the word 'estate" is described as "dealing with a case under the Succession Act, 1925, the court held that "estate" includes all the properties of the deceased. Gulamhussain Kutubuddin Maner v. Abdulrashid Abdulrajak Maner and others, (2000) 8 SCC 507".
16. Keeping in mind the above words in the provisions of statute and the meaning, the further provisions of Section 276 of the Act needs to be taken note of. It mandates that application for probate or for letters for administration, the concise statement to be furnished in the application is also enumerated. They are a) the time of testator's, b) the writing annexed in the last Will and testament, c) that it was duly executed, d) the amount of assets likely to come to the hands of the petitioner,
e) if it is for probate, f) that the petitioner is the executor named in the Will, g) the fixed place of abode of the deceased or that the deceased had some property within the jurisdiction of the District Court etc.
17. Under Section 278 of the same Act, if the application is for Letters of Administration, the time and place of the death of the deceased, the family and other relatives of the deceased with addresses, the right of the petitioner, the amounts likely to come to the petitioner's hands and that the deceased had fixed place of residence or property within the District - are to be incorporated into the petition.
18. Section 279 provides for additional statements to be filed and Section 279 (2) clearly states that the Court to which an application is made under the proviso to Section 273 may if it thinks fit, reject the same. Section 273 provides for grant of the Probate or Letters of Administration and the conclusiveness thereof that may be granted by the High Court or the District Judge within whose territorial jurisdiction the deceased had the fixed place of abode. Therefore, the powers to grant the Letters of Administration or Probate to be granted by the District Judge is also to be read alongwith the provisions of section 279 (2) of the Act.
19. In this context after recording the statement of the parties u/o 10 of PC No. 38/16 Chander Prabha vs. State 02.08.2017 Page5/12 CPC to ascertain the real issue in the controversy, the arguments of the Ld. Counsel on either side concerning the issues and the maintainability of the petition is heard. It was also pointed out to the Ld. Counsel that the maintainability of the petition in the backdrop of there being no estate of the deceased would be also considered while framing the issues and the Ld. Counsel had argued on the same which is dealt in the issue no. 1 herein.
Issues
1. Whether the petition is maintainable in view of the deceased having no estate left behind for which the Letters of Administration is sought u/s 218, 273 and 276 of Indian Succession Act?
2. Whether the petitioner is entitled for the grant of Letters of Administration?OPP
3. Relief.
20. Since it was also made clear that the issue no. 1 would be heard as a preliminary issue, the Ld. Counsel had already submitted their arguments on the maintainability of the petition.
Arguments of the petitioner.
21. The Ld. Counsel Sh. R.N. Dubey would urge that even if there are no documents filed by the petitioner to show that the deceased had left behind an estate, still the petitioner is eligible to maintain the petition in view of Section 30 of the Indian Succession Act and the interrogatories provisions of CPC. He further submits that the contentions of the respondents were already dismissed by the order dated 19.02.2016 where the respondents sought for rejection of the petition. He also submits that the provisions of the Indian Succession Act does not vest any powers to pass a final order at the stage where no evidence is recorded.
He further relies on the following rulings:
a) Alka Gupta vs. Narender Kumar Gupta, Indian Kanoon/doc/41302312 of the Hon'ble Supreme Court
b) Abdul Gafur & Anr. vs. State of Uttarakhand & Ors. (2008) 10 Supreme Court Cases 97 Arguments by the respondents
22. Ld. Counsel Sh. Pradeep Sharma vehemently submits that the petition itself is not maintainable for there being no estate of the deceased and no PC No. 38/16 Chander Prabha vs. State 02.08.2017 Page6/12 Letters of Administration could be granted. He submits that the respondents have been enduring the litigation since almost six years and further the respondents be not put to the trauma of litigation. It is his contention that the petition is not maintainable since there is no estate and further the petitioner having admitted the title of the properties to be the estate of the respondents who have acquired in their individual capacities, there is nothing left to be granted concerning the estate of deceased S.D. Panchal. He further submits that the petitioner herself has admitted that she has no documents to adumbrate that the property belonged to the estate of her late father S.D. Panchal. Therefore, he submits that the petition may be dismissed as not maintainable. In the backdrop of the submissions, this Court hastens to answer the preliminary issue as under.
Maintainability of the petition 23 The Ld. Counsel for the petitioner draws the attention of the court to Section 30 of the Indian Succession Act. He submits that by the said provision, a person is deemed to die intestate in respect of all the properties of which he has not made a testamentary disposition which is capable of taking effect. Thus he submits that the Letters of Administration in the case of deceased S.D. Panchal be granted . Section 30 only states that in all cases of death the presumption is that the person died without any testament unless and until a testament is detected and brought to the fore. The bone of contention is that there being non est of the estate of the deceased.
24. The Ld. Counsel has lost a sight of other provisions of Section 218 of the Indian Succession Act and other provisions mentioned above. Section 218 is very clear that the Administration of the estate of the deceased dying intestate may be granted to the person according to the rules of distribution of the estate applicable in case of such deceased. The statute is time and again uses the word the "estate". Estate is to be properly described, denoted and specified. No doubt the petitioner has specified the properties. The inquiry conducted under Order 10 of CPC clearly suggests that there was no estate left behind by Late S.D. Panchal. The petitioner had further clarified that she has no documents to prove that the properties mentioned at serial no. i) to iii) in the petition belonged to the estate of PC No. 38/16 Chander Prabha vs. State 02.08.2017 Page7/12 Late S.D. Panchal. She has not furnished any documents to show the bank balance or other movables left behind by the late S.D. Panchal. Therefore, there is no estate showing either movable or immovable properties of the deceased.
25. The subject matter involving the petition is a non est. The documents produced by the respondents suggest very clearly that the property involved in the petition belongs to the personal estate of the respondents and not that of late S.D. Panchal against whose estate the Letters of Administration is sought. In this context the legal maxim "allegatio contra factum non est admittenda" clearly comes into play. An allegation contrary to a deed is not to be heard. Suffice it to say that there is no estate left behind to grant Letters of Administration concerning the movable property which never belonged to Late S.D. Panchal. When this foundation is gone, there cannot be any further lis to be taken up for adjudication in view of "sublato fundamento cadit opus" (foundation being removed structure falls).
26. The contention of the Ld. Counsel Sh. R.N. Dubey that the rejection of the IA u/o 7 rule 11 of CPC by my Ld. Predecessor, must end in trial. This Court is of the humble opinion that the rejection of the said IA is in no way an obstruction to dispose of the petition on the maintainability since the very order of my Ld. Predecessor shows that these contentions were taken in the objections filed by the respondents 2 to 4. These pleadings are to be considered at the relevant time and specifically at the time of framing of points for determination and at the time of evidence. Thus the same are now being taken up and the mere dismissal of the application u/o 7 rule 11 earlier would not impede the hearing and passing orders on the preliminary issue based on section 218 of the Indian Succession Act.
27. As regards the ruling in Alka Gupta (supra), it was urged that the Hon'ble Supreme Court had observed that "a suit cannot be dismissed without trial merely because the Court feels dissatisfied with the conduct of the plaintiff. In the said case, the Hon'ble Supreme Court noted that the Ld. Single Judge of the High Court held that the suit was liable to be dismissed on the grounds of abuse of process of the Court, the party being an unscrupulous person who filed the suit on falsehood, that the partnership deed was illegal and unenforceable, that the suit PC No. 38/16 Chander Prabha vs. State 02.08.2017 Page8/12 was barred u/o 2 rule 2 of CPC and also barred by the principle of constructive resjudicata. In the said case since there was no issue framed by the Hon'ble High Court towards the bar of the suit by order 2 rule 2 of CPC, and that there being two suits the Hon'ble Supreme Court held that a suit cannot be dismissed without trial merely because the court feels dissatisfied with the conduct of the plaintiff and since the second suit was not barred by constructive resjudicata. It noted the following at para 21.
"21. The High Court recorded factual findings on inferences from the plaintiff's (appellant) conduct and branded her as an unscrupulous person who abuses the process of court and as a person who utters falsehoods and manipulates documents without there being a trial and without there being an opportunity to the plaintiff to explain her conduct. To say the least, such a procedure is opposed to all principles of natural justice embodied in the Code of Civil Procedure. At all events, the alleged weakness of the case of the plaintiff or unscrupulousness of plaintiff are not grounds for dismissal without trial."
28. In the instant case, no inferences are being drawn and no remarks or branding is being done. This Court is not dismissing the petition on the grounds of conduct of the petitioner but on the point of law that whether the petition for grant of Letters of Administration is maintainable where there is no 'estate'? Thus the ruling in Alka Gupta is of no help to the petitioner. It is to be noted that the instant case has become already five years old and no useful purpose will be served by further prolonging it and by keeping the matter for adducing the evidence where there is none as admitted by the petitioner herself.
29. It is to be kept in mind that Order 14 rule 2 of CPC is very clear that not withstanding that a case may be disposed of on a preliminary issue the court shall subject to the provisions of sub rule 2, pronounce judgment on all issues. Order 14 rule 2 of CPC reads :
"Where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed off on an issue of law only, it may try that issue first if that issue relates to a) the jurisdiction of the Court, b) a bar to the suit created by any law for the time being enforce, for that purpose may if it thinks fit, postpone the settlement of the other issues until after that issue has been determined and may deal with the suit in accordance with the decision on that issue".PC No. 38/16 Chander Prabha vs. State 02.08.2017 Page9/12
30. Order 15 rule 3 of CPC empowers the court to determine if the court is satisfied that no further argument or evidence is required if the question of law is framed, may proceed to determine such issues if the finding is sufficient for the just decision of the case. The SARKAR commentary to the CPC 11 th Edition Volume I reads as under:
"R.3. Parties at issue. - (1) Where the parties are at issue on some question of law or of fact, and issues have been framed by the Court as hereinbefore provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be insufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues, and, if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons has been issued for the settlement of issues only or for the final disposal of the suit:
Provided that, where the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of them objects. (2) Where the finding is not sufficient for the decision, the Court shall postpone the further hearing of the suit, and shall fix a day for the production of such further evidence, or for such further argument as the case requires."
31. "It is also noted that the trial of issues of law relating to jurisdiction and bar of suit only first u/o 14 rule 2. Rule 3 applies only to the disposal of the suit on the date of first hearing namely on the date when the issues are framed on the basis of material available on that date. If the court satisfied that no further argument or evidence than the parties can at once adduce is required, and as a result of proceeding; with the suit forthwith no justice will result". (Commentary of SARKAR Order 15 rule 3 11th Edition Lexis nexis). The same commentary notes that "when admission of fact made by a pleader is sufficient to dispose of the case, court may at once pronounce the judgment under rules 1 and 3 "Kundibai vs. Vishinji A 1947 S 105". In this case there are no crucial issues since the petitioner herself has admitted that she has no documents to adumbrate the estate of her late father.
32. The Ld. counsel for the petitioner further relied on the ruling of Abdul Gafur (supra) to urge that if the arguable question is a question of law or fact is found, it would be impermissible to dismiss the suit without recording reasons. In the said case it was held that :
"One of the fundamental norms of judicial process is that arguable questions PC No. 38/16 Chander Prabha vs. State 02.08.2017 Page10/12 either legal or factual, should not be summarily dismissed without recording a reasoned order. A mere entertainment of the writ petition to which the appellants herein were not parties, even if it involved determination of similar issues was not a good ground to dismiss the two suits without granting opportunity to the parties to prove their respective stands. Moreover, the scope of the write petition and the two suits are also seems to be different".
33. In the instant case, the above reasons discussed as per the mandate of the Indian Succession Act and the provisions of CPC enables the court to dispose of the case which is more than five years old and which by every probability would end up only in a futile exercise to find out the estate of the deceased where there is none. The petitioner is only searching a non existent oasis in the desert of this litigation. Therefore, the above ruling in Abdul Gafur is of no help to the petitioner since the reasons for dismissal are aplenty.
34. To sum up concisely the reasons:
a) The petition is not maintainable as there is no estate of deceased Panchal as clearly admitted by the petitioner in her statement recorded and that of the statement of the other respondents u/o 10 CPC.
b) The above statements clearly reflect that there is no issue on any question of law or fact - which enables the court to dispose of the proceedings u/o 15 rule 1 and 3 of CPC.
c) Section 218 of the Indian Succession Act clearly speaks of issue of Letters of Administration to the estate of the deceased in case of intestate succession. In the instant case there is no such estate to which the Letters of Administration can be issued.
d) That the trial of the case by stretching it for evidence after five years of the avoidable litigation would also result in futility since there is no estate of the deceased father of the petitioner.
e) That the petitioner had misconceived the facts of the case. Her remedy lies in a civil suit somewhere.
f) The petitioner has not furnished any documents to show that the estate of deceased S.D. Panchal comprised of the property to which she seeks the Letters of Administration.
g) The disposal of old cases is a matter of priority and that retaining the case files on record which would remain only a futile exercise would help none but a burden on the court and the courts are mandated to look into the real issue in controversy and dispose of the cases at the first hearing when cases are slated for settlement of issues where there is no controversy.
h) Section 279 (2) of Indian Succession Act also empowers the court to reject the same according to the discretion of the court which discretion is exercised for the reasons mentioned above.PC No. 38/16 Chander Prabha vs. State 02.08.2017 Page11/12
Hence, the following:
ORDER The petition stands dismissed as not maintainable since there is no estate of the deceased S.D. Panchal to which the Letters of Administration can be granted. Parties to bear their own costs.
File be consigned to record room.
Pronounced in open court
on 02.08.2017 (A.S. Jayachandra)
District & Sessions Judge
Shahdara District,Delhi
PC No. 38/16 Chander Prabha vs. State 02.08.2017 Page12/12