Delhi District Court
Vikas Jain vs The State (Nctd) on 4 December, 2015
In The Court of Virender Kumar Goyal
Additional District Judge01 (East)
Karkardooma Courts, Delhi.
PC No.51/2009
Unique Case ID No.02402C0 31041 2009
In the matter of :
Vikas Jain
S/o Sh. Tej Kumar Jain
R/o A1/3, Krishna Nagar
Delhi110051 .....Petitioner
Versus
1. The State (NCTD)
2. Arvind Jain
S/o Sh. Tej Kumar Jain
R/o A41, 2nd Floor, Anand Vihar, Delhi.
Now at : Jaspuria Apartments, N201,
Ist Floor, Indirapuram, Ghaziabad, U.P.
3. Amit Jain
S/o Sh. Tej Kumar Jain
R/o D2, Laxmi Apartment
Gujrati Road, Mattam Cherry
Cochin, Kerela
4. Umesh Jain
S/o Sh. Tej Kumar Jain
R/o A1/3, Krishna Nagar, Delhi51.
Now at : N29, Gali No.13, Bihari Colony,
Near Jain Mandir, Delhi.
5. Smt. Mamta Jain
D/o Sh. Tej Kumar Jain
R/o 14, Delhi Gate, Meerut, U.P.
PC No.51/2009 Page No.1 of 26
6. M/s. Brijwasi Infratech Pvt. Ltd.
Through its Builder/Director
R/o H.No.157, Bank Enclave,
Delhi51 .....Respondents
Date of institution : 23.10.2009
Arguments heard on : 07.10.2015
Judgment announced on : 04.12.2015
JUDGMENT
1. Brief facts of the case relevant for the disposal of the present petition are that the petitioner has filed the petition for grant of letter of administration/Probate U/s 278 of Indian Succession Act with respect to the property leftby deceased Sh. Tej Kumar Jan, on the averments that deceased father of the petitioner namely Sh. Tej Kumar Jain was resident of A1/3, Krishna Nagar, Delhi51, who died on 22.07.2009 in Jain Hospital. Earlier, mother of the petitioner also died. Sh. Tej Kumar Jain has left behind the following properties, as under :
(i) House No.A1/3, Krishna Nagar, Delhi51 (to be divided between petitioner and respondents no.2 to 4 in equal ratio)
(ii)Flat No.87, Kusum Apartment, Gurusadey Road, Kolkata700019, which is let out and rent was being received by the testator.
(iii) Office, situated at No.A1, Rehman Market, Sadar Bazar, Delhi110006 (tenanted premises) Property No.2&3 will devolve upon the petitioner.
2. The deceased was the sole owner of the said properties by virtue of a WILL executed by Smt. Shakuntala Jain, PC No.51/2009 Page No.2 of 26 mother of the petitioner in his favour on 04.10.2000. The mother of the petitioner died before issuance of letter of administration in favour of Sh. Tej Kumar Jain, however, absence of the same does not effect ownership of deceased in the properties, as there is no dispute with the heirs interest regarding that WILL. The deceased had executed a registered WILL dated 08.04.2008 which was his last testament. The deceased has left behind three sons namely Sh. Arvind Jain, Sh. Amit Jain, Sh. Umesh Jain and one daughter namely Smt. Mamta Jain. By virtue of the said WILL of the deceased, petitioner and respondents no.2 to 4 are beneficiaries parties and properties, as mentioned above will devolve upon them, excluding respondent no.5, who was happily married and is living perfect marital life in her matrimonial house. The petitioner is the son of deceased testator, whereas, respondents no.2 to 4 are his sons and respondent no.5 is his daughter. The properties, as mentioned above, are lying within the territorial jurisdiction of this court. The deceased was ordinary resident of Delhi, who expired in Delhi and this court has jurisdiction to entertain and try the present petition. There is no legal impediment in granting letter of administration / probate and prayed accordingly.
PC No.51/2009 Page No.3 of 26
3. The notices of the petition were issued to the respondents and on completion of service, respondents no.2 to 5 have put their appearance through their counsel and has filed their Written Statements.
4. The respondent no.1/State was duly served by way of publication of notice in the newspaper The Statesman in its edition dated 12.12.2009, but, despite service, none appeared on behalf of it, so, respondent no.1 was proceeded exparte vide order dated 30.07.2010.
5. During the pendency of the case, an application was filed by the applicant M/s. Brijwasi Infratech Pvt. Ltd., U/o 22 rule 10 r/w/o 1 rule 10 CPC for its impleadment, which was allowed by the court vide its order dated 03.02.2014 and it was impleaded as respondent no.6 in the case
6. It is averred in the WS filed on behalf of respondents no.2,4&5 that the petitioner has not approached the court with clean hands and he has suppressed the material facts from the court especially mentioning of dates in registered WILL and photocopy of WILL. Photocopy of WILL is a forged document. Petitioner has wrongly stated that original of the same is in custody of respondent no.3, who has categorically stated in his WS that WILL is not in his custody. Petition is not maintainable, as it does not discloses PC No.51/2009 Page No.4 of 26 value of assets which are likely to come in the hands of legal heirs. The petition has been filed on the ground that father of the petitioner Sh. Tej Kumar Jain died on 22.07.2009, who had executed a WILL dated 08.04.2008. The registered WILL filed before the court clearly shows that WILL executed by Smt. Shakuntala Jain in favour of Sh. Tej Kumar Jain on 18.04.2001 is a forged one, as it is mentioned that it has been executed on 04.10.2000. Even signatures of testator Smt. Shakuntala Jain and of witnesses on the WILL are fictitious and forged. Late Sh. Tej Kumar Jain was owner of 25% share in property No.A1/3, Krishna Nagar, Delhi, who had purchased the said portion vide sale deed dated 23.10.1972 and sold the same to Smt. Shakuntala Jain vide registered sale deed dated 02.01.1991, who died intestate on 30.10.2000. As such, Tej Kumar Jain, petitioner and respondents no.2 to 5 became entitled to 1/6th of 1/4th share in the property. Sh. Tej Kumar Jain died intestate on 22.07.2009. Respondents no.2 to 5 had sold their shares to respondent no.6. Thus, respondent no.6 has become owner of 4/5th share of 1/4th share in the suit property by virtue of registered sale deed dated 29.10.2010. WILL dated 08.04.2008 of Sh. Tej Kumar Jain and WILL dated 04.10.2000 of Smt. Shakuntala Jain are forged and PC No.51/2009 Page No.5 of 26 fabricated. The petitioner deliberately has not filed the original WILL dated 04.10.2000 of Smt. Shakuntala Jain on record. Replying the petition on merits, it is averred that alleged WILL dated 08.04.2008 does not bear thumb impressions and signatures of Sh. Tej Kumar Jain. Smt. Shakuntala Jain died on 30.10.2000 and she could not have executed any WILL on 04.10.2000, which was notarized on 18.04.2001. Respondents no.2 to 5 have sold their 4/5th share of 1/4th undivided share by virtue of registered sale deed dated 29.10.2010 in favour of respondent no.6 and after denying other averments, they have prayed for dismissal of the petition with exemplary costs.
7. It is averred in the WS filed on behalf of respondent no.3 that WILL executed by his mother in favour of his father and WILL executed by his father in favour of the petitioner are false, fabricated and forged. In the absence of legal WILL, all the legal heirs have equal right to enjoy the movable and immovable properties including respondent no. 5 and prayed for dismissal of the petition with heavy cost.
8. The respondent no.6 has filed objections to the petition, on the averments that petitioner has not come to the court with clean hands. He has concealed material facts from the court. Petitioner has filed scheduleA with the petition PC No.51/2009 Page No.6 of 26 wherein at S.No. House No.A1/3, Krishna Nagar, Delhi51 has been mentioned and this property is built on a plot of land admeasuring 593 sq. yards and respondent no.6 is owner therein of 3/4th portion by virtue of sale deed dated 28.04.2010 executed by Sh. Manoj Jain, Arun Jain, Smt. Kiran Bala in favour of respondent no.6, who is also owner of 4/5th of remaining 1/4th undivided share in the said property by virtue of sale deed dated 29.10.2010 executed by Sh. Arvind Jain, Sh. Umesh Jain, Sh. Amit Jain and Smt. Mamta Jain in favour of respondent no.6 and petitioner can seek probate to the extent of 1/4th share in the said property admeasuring 148 sq. yards approx. The petition is not maintainable, as it does not discloses value of assets, which are likely to come in the hands of the legal heirs, as required under the provisions of Indian Succession Act, 1925. In the preliminary submissions, it is averred that late Sh. Tej Kumar Jain was owner of 25% share of the property No.A1/3, Krishna Nagar, Delhi, who purchased the same vide sale deed dated 23.10.1972 and sold the same to Smt. Shakuntala Jain vide registered sale deed dated 02.01.1991, who died intestate on 30.10.2000. As such, Sh. Tej Kumar Jain, petitioner and respondents no.2 to 5 became entitled to 1/6th of 1/4th share in the property. Sh. Tej Kumar Jain died PC No.51/2009 Page No.7 of 26 intestate on 22.07.2009. Respondent no.6 had purchased their 1/5th share in the suit property from legal heirs of late Sh. Tej Kumar Jain i.e. from Sh. Arvind Jain, Sh. Amit Jain, Sh. Umesh Jain and Smt. Mamta Jain, who are respondents no.2 to 5. Thus, respondent no.6 has become owner of 4/5th share of 1/4th share in the suit property. WILL dated 08.04.2008 of Sh. Tej Kumar Jain and WILL dated 04.10.2000 of Smt. Shakuntala Jain are forged and fabricated. The petitioner deliberately has not filed the original WILL dated 04.10.2000 on record. Replying the petition on merits, it is averred that alleged WILL dated 08.04.2008 does not bear thumb impressions and signatures of Sh. Tej Kumar Jain. Smt. Shakuntala Jain died on 30.10.2000 and she could not have executed any WILL on 18.04.2001. Respondent no.6 is owner of 3/4th portion of house No.A1/3, Krishna Nagar, Delhi by virtue of registered sale deed dated 28.04.2010, executed by Sh. Manoj Jain, Sh. Arun Jain and Smt. Kiran Bala in favour of respondent no.6. Respondent no.6 is also owner of 4/5th of remaining 1/4th undivided share in the said property by virtue of sale deed dated 29.10.2010 executed by Sh. Arvind Jain, Sh. Umesh Jain, Sh. Amit Jain and Smt. Mamta Jain in favour of respondent no.6. Petition is not maintainable as it does not PC No.51/2009 Page No.8 of 26 discloses value of the assets, which are likely to come in the hands of legal heirs and after denying other averments, it has prayed for dismissal of the petition with costs.
9. Rejoinders to the written statements of respondents no. 2,3,4,5&6 were filed on behalf of the petitioner, wherein, he has denied the averments made in the written statements and reiterated the contents of the petition.
10. From the pleadings of the parties, following issues were framed vide order dated 11.06.2014, as under :
(i) Whether Sh. Tej Kumar Jain had executed valid / genuine WILL dated 08.04.2008 ? OPP
(ii)Whether the petitioner is entitled to the relief of grant of letter of administration / probate of WILL of Sh. Tej Kumar Jain ? OPP
(iii)Whether the petitioner has not approached to the court with clean hands ? OPR2,4,5,6.
(iv)Whether the present petition is not maintainable ? OPR2,4,5,6.
(v) Whether the petitioner has not filed the original alleged WILL dated 04.10.2000 of Smt. Shakuntala Jain deliberately? If so, its effect ? OPR2,4,5.
(vi) Whether this court is having jurisdiction to adjudicate upon the present matter qua the property bearing flat No.87, Kusum Apartments, Guru Shah Day Road, Kolkata19, as mentioned at serial No.2 of Schedule A, filed by the petitioner ? OPR
(vii)Relief.
11. In order to prove the case, the petitioner has examined Sh. Prayas, LDC from the office of SubRegistrarVIII, PC No.51/2009 Page No.9 of 26 Geeta Colony, Delhi, as PW1, who has proved the registration of WILL DEED dated 08.04.2008 Ex.PW1/A executed by Sh. Tej Kumar Jain.
12. The petitioner has examined himself, as PW2 vide his affidavit Ex.PW2/A. In one way or other, he has reiterated the contents of the petition in his affidavit. He has been cross examined at length by the ld. counsels for respondents no.2 to 6.
13. The petitioner has also examined Sh. Anand Prakash, as PW3, vide his affidavit Ex.PW3/A, who is one of the attesting witness to the WILL Ex.PW1/A. In the cross examination, he has stated that he was having friendly relations with Sh. Tej Kumar Jain for about 15 years. He has denied the suggestion that Sh. Tej Kumar Jain was not in good mental condition to execute any WILL 3/4 days prior to its execution. He has also denied the suggestion that Sh. Tej Kumar Jain was sick at the time of execution of the alleged WILL. He has also denied the suggestion that he was not having cordial relations with the petitioner. He has also denied the suggestion that deceased was having very weak eye sight at the time of execution of the alleged WILL in his last phase of life.
14. At the stage of final arguments, the petitioner had filed PC No.51/2009 Page No.10 of 26 an application u/o 18 rule 17 CPC for recalling PW3, which was allowed by this court vide its order dated 06.07.2015.
15. PW3 was again examined in the court on 08.09.2015. He has identified the signatures of the testator at point A, A1 to E on WILL Ex.PW1/A and his signatures at point 1&2 and of another attesting witness at point X&Y. During cross examination, he has denied the suggestion that he was not well at the time of execution of WILL Ex.PW1/A. No other witness has been examined by the petitioner.
16. Whereas, respondent no.2 has examined himself as RW2, vide his affidavit Ex.RW2/A. He has been cross examined at length by the ld. counsel for the petitioner.
17. Respondent no.3 has examined himself as RW3, vide his affidavit Ex.RW3/A. He has been cross examined at length by the ld. counsel for the petitioner.
18. Respondent no.4 has examined himself as RW4, vide his affidavit Ex.RW4/A. He has been cross examined at length by the ld. counsel for the petitioner.
19. Respondent no.5 has examined herself as RW5, vide her affidavit Ex.RW5/A. She has been cross examined at length by the ld. counsel for the petitioner.
20. Sh. Prem Prakash Sharma, Director of the respondent no.6 has examined himself as RW6, vide his affidavit PC No.51/2009 Page No.11 of 26 Ex.RW6/A. He has relied upon certified copy of the sale deed dated 29.10.2010 Ex.RW6/1. He has been cross examined at length by the ld. counsel for the petitioner.
21. I have heard the ld. counsel for the petitioner and perused the record. Issue wise findings are as under : Findings on issue No.1 (1) Whether Sh. Tej Kumar Jain had executed valid / genuine WILL dated 08.04.2008 ? OPP
22. The petition has been filed by the petitioner for grant of letter of administration / probate of the properties left by the deceased Sh. Tej Kumar Jain. The same has been contested by the respondents. One M/s. Brijwasi Infratech Pvt. Ltd. was also added as respondent during the proceedings. According to the documents placed on record, Sh. Tej Kumar Jain, father of the petitioner had executed a registered WILL in respect of immovable property No.A1/3, Krishna Nagar, Delhi. According to this WILL, the testator shall remain owner of his immovable asset and after his death, house No.A1/3, Krishna Nagar, Delhi had to devolve upon his four sons. The sons are Arvind Jain, Amit Jain, Umesh Jain and Vikas Jain. Vikas Jain is the present petitioner. Another immovable assets viz. Office at No.A1, Rehman Market, Sadar Bazar, Delhi110006 and Flat No.87, Kusum Apartment, Gurusadey Road, Kolkata700019, have PC No.51/2009 Page No.12 of 26 been devolve upon the petitioner Vikas Jain to the exclusion of other legal heirs. The WILL was executed on 08.04.2008 and on the same day it was registered. The attesting witnesses to the WILL are Sh. Anand Prakash and Sh. Charanjeet Singh. Vikas Jain, the petitioner has examined himself as PW2 and has deposed the facts on oath regarding the WILL. In the cross examination, he has admitted that his father was owner of property No.A1/3, Krishna Nagar, Delhi and his father was having 1/4th undivided share in the said property and 3/4th share in the said property was sold by Sh. Manoj Jain, Sh. Arun Jain and Smt. Kiran Bala in favour of the respondent no.6. He has also admitted that his brothers and sister have also sold their shares in respect of the said property in favour of the respondent no.6, but, these were undivided share. Whatsoever it may be, these facts are not necessary to decide the issue about the WILL, as to whether it was executed genuinely and validly. For that purpose, PW2 has denied that at the time of execution of the WILL PW1/A, mental condition of his father was not well. However, he has voluntarily stated that his father was suffering from infection and again stated that his father was suffering from fever. So, suffering from fever was not any incompetency in executing the WILL by the late father of the PC No.51/2009 Page No.13 of 26 petitioner. The WILL of the mother of the parties is not in question before this court and most of the time, witness has been cross examined on the WILL of the mother, for which the present petition has not been filed in any manner. Even this court has not to see whether the deceased testator was the absolute owner of the property No.A1/3, Krishna Nagar, Delhi or not. Photocopy of the WILL of the mother of the parties has also been placed on record, but, the same is not relevant in any manner to the extent of looking into the ownership of property No.A1/3, Krishna Nagar, Delhi.
23. PW2 Vikas Jain has also admitted in the cross examination that his mother had executed a WILL in favour of his father Sh. Tej Kumar Jain. Regarding registration of WILL, PW2 has stated that he does not know as to whether copy of the WILL dated 08.04.2008 was filed for registration in the office of Registrar, because, he did not accompany his father. However, his father had told him that he was going to the office of SubRegistrar for registration of the WILL, so, Amit Jain had accompanied his father for registration of the WILL.
24. PW1 is Sh. Prayas, LDC from the office of Sub RegistrarVIII. He has produced the record of the registered WILL dated 08.04.2008 of Sh. Tej Kumar Jain and has PC No.51/2009 Page No.14 of 26 proved the same, being Ex.PW1/A with his office record.
25. The relevant witness is Sh. Anand Prakash. He is attesting witness to the WILL Ex.PW1/A and has been examined as PW3. He has tendered his affidavit in evidence, as Ex.PW3/A. Initially, he could not exhibit the WILL and did not identify his signatures and of testator and of another attesting witness Sh. Charanjeet Singh on the WILL. Thereafter, he was recalled again and was further examined, as per order dated 16.07.2015. At that time, he was shown the WILL Ex.PW1/A, who has identified his signatures alongwith testator and of another attesting witness. Previously, he was cross examined on behalf of respondent no.6, wherein he has stated that he was having friendly relations with Sh. Tej Kumar Jain for about 15 years. He has denied the suggestion that Sh. Tej Kumar Jain was not in good mental condition to execute any WILL 34 days prior to the execution of the alleged WILL. He has also denied that Sh. Tej Kumar Jain was sick at the time of execution of the alleged WILL. He has also denied that alleged WILL was executed in the year 2009. He has denied that he is having cordial relations with Sh. Vikas Jain. He has denied that the alleged WILL is neither signed by him nor Sh. Tej Kumar Jain or by another attesting witness Sh. Charanjeet Singh. In PC No.51/2009 Page No.15 of 26 further cross examination, PW3 has denied the suggestion that Sh. Tej Kumar Jain was having very weak eye sight, at the time of execution of the alleged WILL, in his last days. So, nothing material came out from his cross examination when he was firstly examined and at the second time also, he could not be cross examined on any material aspect to disbelieve him or rendering him unreliable. Even in the cross examination, he has disclosed in detail as to how he was called by Sh. Tej Kumar Jain and in what manner, they reached at the office of SubRegistrarVIII, Geeta Colony.
26. Affidavit of another attesting witness Sh. Charanjeet Singh was also filed. But, he could not be examined.
27. On the other hand, Sh. Arvind Jain, has been examined as RW2 and in the cross examination, he has stated that he had already sold his share in property No.A1/3, Krishna Nagar, Delhi before filing the present probate petition No. 51/2009. He has further stated in his cross examination that Smt. Mamta is one of the seller in the sale deed dated 29.10.2010. He has further stated in his cross examination that he does not know whether his sister become party, even after having knowledge of probate proceedings of testator's registered WILL. He has further stated that his father did not execute any WILL, as he was not having any property in his PC No.51/2009 Page No.16 of 26 name.
28. RW3 is Sh. Amit Jain. According to his cross examination, he came to know about the present petition about 5 years before. He has also admitted that he has good relations with his brothers and sister except Sh. Vikas Jain, which shows that he has a motive to depose against the petitioner. He has also admitted that his sister was knowing about the pendency of the present probate petition.
29. RW4 is Sh. Umesh Jain. He has stated that when he had sold his share in the property, no case was pending against him and further stated that he cannot say whether his sister was knowing about the pendency of the present probate petition while he sold his share vide sale deed mark DW2/P1.
30. RW5 is Ms. Mamta Jain, sister of the petitioner.
31. So, in all, the evidence of these respondents is to the extent that the WILL was not executed by late Sh. Tej Kumar Jain and that they had already sold their shares in property No.A1/3, Krishna Nagar, Delhi. They had stated that sister Mamta Jain was knowing about the WILL. The whole of the evidence of these witnesses is revolving around the WILL of the mother, which has no relevancy in the present petition, because, letter of administration / probate petition has been filed in respect of WILL of late Sh. Tej Kumar Jain. PC No.51/2009 Page No.17 of 26
32. According to PW2 Vikas Jain, his brother Sh. Amit Jain had accompanied late Sh. Tej Kumar Jain to the office of SubRegistrar for the registration of the WILL and Sh. Amit Jain while examined as RW3 has nowhere deposed about this fact that he had not gone with his father i.e. late Sh. Tej Kumar Jain for the registration of the said WILL. So, in other manner, the execution and registration of the WILL of late Sh. Tej Kumar Jain was well within the knowledge of respondent Amit and they all had sold their shares in the property No.A1/3, Krishna Nagar, Delhi knowingly that there was a WILL in favour of all the four sons, having equal shares in respect of property No.A1/3, Krishna Nagar, Delhi and Smt. Mamta Jain was not having any share in the said property, even then, she had sold her share to respondent No.
6.
33. One Sh. Prem Prakash Sharma has been examined on behalf of respondent No.6, who has claimed in his affidavit in evidence that alleged WILL dated 08.04.2008 of late Sh. Tej Kumar Jain does not bear his thumb impression and signature and same is forged and fabricated document. He is not a family member nor he is acquainted with the hand writing and signatures of late Sh. Tej Kumar Jain. So, he could not be a competent witness to comment upon the hand PC No.51/2009 Page No.18 of 26 writing and signatures on the said WILL of late Sh. Tej Kumar Jain nor he could have been claimed the WILL to be forged and fabricated and simply, because, respondent No.6 has purchased the shares of other respondents in property No.A1/3, Krishna Nagar, Delhi, so, he is deposing the same in support of the transaction. It has been clarified very well in his cross examination, when he was asked to identify the thumb impressions and signatures of late Sh. Tej Kumar Jain on Ex.PW1/A and at that time, he told that he had never seen Sh. Tej Kumar Jain, so, he cannot identify his signatures and thumb impressions. Under such circumstances, his claim of WILL to be forged and fabricated, is a futile exercise. In the cross examination, he has tried to frame the petitioner by saying that petitioner had told him that his mother had not made any WILL in respect of said property and he had handed over one affidavit Ex.R6/P1.
34. This Ex.R6/P1 is an affidavit of Sh. Tej Kumar Jain, claiming to be the legal heirs of Smt. Shakuntala Jain including himself and all four sons. It is also mentioned in the said affidavit that Smt. Shakuntala Jain has left no WILL or made any other deposition in respect of amount lying in the account. It is stated to be signed by Sh. Tej Kumar Jain and Sh. Vikas Jain has identified Sh. Tej Kumar Jain. Now PC No.51/2009 Page No.19 of 26 the question is what is the relevancy of this affidavit, while deciding the letter of administration / probate in respect of WILL of late Sh. Tej Kumar Jain. First of all, the existence of document is doubtful, as according to respondent no.6, it was produced by the petitioner Vikas Jain. Whereas, according to the cross of RW2, he has produced the copy of the same mark 'X' during his cross examination on 09.02.2015. But, he failed to disclose as to in whose possession original was of this affidavit. According to the cross of RW3, the original of the same was available with him and he can file the original, if directed. So, it seems that RW6 has falsely deposed before the court about the production of said affidavit Ex.R6/P1 by petitioner Vikas Jain. Whereas, from the evidence brought on record, it is clear that Ex.R6/P1 was handed over to RW6 by the other respondents, who produced the same during his cross examination, which shows that all the respondents are acting and deposing in connivance with each other, just to deny the WILL, executed by late Sh. Tej Kumar Jain for the reasons that they have sold their shares in the property No.A1/3, Krishna Nagar, Delhi.
35. Much hype has been created about the WILL of Smt. Shakuntala Jain, photocopy of which has been produced PC No.51/2009 Page No.20 of 26 before the court. It is not relevant in any manner for letter of administration or probate of the said WILL of Sh. Tej Kumar Jain. The same has been produced just to show the conduct and intention of the parties. But, in my view, neither of the photocopy of the WILL of late Smt. Shakuntala Jain nor the affidavit Ex.R6/P1 is relevant in any manner while deciding the genuineness and validity of the WILL Ex.PW1/A executed by late Sh. Tej Kumar Jain.
36. Ld. counsel for the respondent no.6 has relied upon the judgment Kulwant Kaur v. State, FAO No.53/2005 decided on 05.04.2013 by the Hon'ble High Court of Delhi, wherein it has been held that "Succession Act, 1925Section 276 Probate PetitionRecital of WILL not factually correct, Effect ofHeld, the recital of the WILL is not factually correct because the beneficiary was settled outside India however, in the WILL, it has been stated by the deceased testator that the beneficiary has served himWILL of the deceased testator is not free from suspicious circumstance".
37. Ld. counsel for the respondent No.6 has contended that the WILL of Smt. Shakuntala Jain and the affidavit Ex.R6/P1 are the suspicious circumstances, raising question about the valid execution of the WILL of late Sh. Tej Kumar Jain. In my view, it is not so, as these documents have been PC No.51/2009 Page No.21 of 26 placed on record just to complicate the issue in question about the validity and execution of the WILL Ex.PW1/A of late Sh. Tej Kumar Jain, for which, the court has to see only the evidence of attesting witness Sh. Anand Prakash, who has fairly deposed before the court and same inspired confidence. He has proved the execution of the WILL beyond any suspicious circumstances and from the evidence of PW1, PW2 and PW3, the petitioner has been able to prove that Sh. Tej Kumar Jain had executed a valid and genuine WILL dated 08.04.2008. I have gone through the judgment relied upon by the ld. counsel for the respondent No.6, but, the same is not applicable to the case in hand. Accordingly, this issue is decided in favour of the petitioner and against the respondents.
Findings on issues no.3&4 (3) Whether the petitioner has not approached to the court with clean hands ? OPR2,4,5,6.
(4) Whether the present petition is not maintainable ? OPR2,4,5,6.
38. Ld. counsel for the respondents have not been able to argue as to in what manner the petitioner has not approached the court with clean hands and further why the petition is not maintainable. No evidence led or arguments addressed on these issues. The property is situated within the jurisdiction PC No.51/2009 Page No.22 of 26 of this court, so, the petition for issuance of letter of administration / probate petition can be filed before this court.
39. In the Written statements, it was claimed that the petitioner has not approached the court with clean hands and has suppressed the material facts. It was alleged that photocopy of the WILL is forged and fabricated and original of the same is within the custody of the respondent No.3, which has been denied by the respondent No.3 in his WS. In my view, this cannot be a ground to disbelieve the petition in any manner. So, both these issues are decided in favour of the petitioner and against the respondents.
Findings on issue No.5 (5) Whether the petitioner has not filed the original alleged WILL dated 04.10.2000 of Smt. Shakuntala Jain deliberately? If so, its effect ? OPR2,4,5.
40. It has already been discussed above that the petition has not been filed for issuing letter of administration / probate of WILL of Smt. Shakuntala Jain. So, the same is not relevant to be discussed in any manner and if original of the same is not filed, it has no effect and there cannot be any question of any deliberate intention on the part of the petitioner in not filing the same. Accordingly, this issue is decided in favour of the petitioner and against the PC No.51/2009 Page No.23 of 26 respondents.
Findings on issue no.6 (6) Whether this court is having jurisdiction to adjudicate upon the present matter qua the property bearing flat No. 87, Kusum Apartments, Guru Shah Day Road, Kolkata19, as mentioned at serial No.2 of Schedule A, filed by the petitioner ? OPR
41. This issue was treated as preliminary issue on the submissions of ld. counsel for the respondents, as property mentioned at S. No.2 of schedule A is situated at Kolkata and keeping in mind the provisions of section 273 proviso (b) of Indian Succession Act, the ld. predecessor of this court had held that this court is lacking territorial jurisdiction to adjudicate upon the matter qua the property mentioned at S.No.2 of schedule A, as it is an immovable property situated at Kolkata and value thereof must be more than Rs.10000/. Accordingly, vide order dated 11.06.2014, issue no.6, which was treated as preliminary issue and was decided against the petitioner and in favour of the respondents and the ld. predecessor of this court had ordered that since this court is lacking territorial jurisdiction to adjudicate qua the property bearing flat No.87, Kusum Apartments, Guru Shah Day Road, Kolkata19, so, the present petition was ordered to be returned to the petitioner qua the above said property for filing the same in the court of competent jurisdiction for the PC No.51/2009 Page No.24 of 26 said property.
Findings on issue No.2 (2) Whether the petitioner is entitled to the relief of grant of letter of administration / probate of WILL of Sh. Tej Kumar Jain ? OPP
42. It has been held in numerous judgments that probate or letter of administration are not concerned with the title of the property, but, are concerned with the due execution of the WILL. Issue No.1 has already been decided in favour of the petitioner. According to the WILL Ex.PW1/A, house No.A1/3, Krishan Nagar, Delhi has devolved upon all the four brothers equally and Flat No.87, Kusum Apartment, Gurusadey Road, Kolkata700019 has devolved upon the petitioner in exclusion to all other legal heirs. Similarly, Office No.A1, Rehman Market, Sadar Bazar, Delhi110006 has also devolve upon the petitioner in exclusion to all the other legal heirs. As property No.A1/3, Krishna Nagar, Delhi has devolved upon all the four legal heirs of late Sh. Tej Kumar Jain to the exclusion of their sister Mrs. Mamta Jain and the same has not devolved solely in favour of the petitioner. Hence, under such circumstance only letter of administration can be issued in favour of the petitioner. Accordingly, petitioner is entitled to the relief of grant of letter of administration in respect of last WILL dated PC No.51/2009 Page No.25 of 26 08.04.2008 Ex.PW1/A of late Sh. Tej Kumar Jain. Hence, this issue is decided in favour of the petitioner and against the respondents.
43. Relief : In view of findings on issues, as discussed above, the petition filed by the petitioner, stands allowed. Letter of administration in respect of property No.A1/3, Krishan Nagar, Delhi and Office No.A1, Rehman Market, Sadar Bazar, Delhi110006 be issued to the petitioner to administer the same.
44. It is clarified that right, title and interest of petitioner in properties in question is not decided by this court.
45. The letter of administration be issued on furnishing of requisite court fee and indemnity cum surety bond.
46. File be consigned to record room.
Announced in the open Court on 04.12.2015 ( Virender Kumar Goyal ) Additional District Judge01 (East)/KKD/Delhi / 04.12.15 PC No.51/2009 Page No.26 of 26