Delhi District Court
(Pc No.351/06) (Shashi Kr. Jain, Thru ... vs . State & Ors.) on 21 July, 2008
(PC No.351/06) (Shashi Kr. Jain, thru L.Rs vs. State & Ors.)
: 1:
IN THE COURT OF SHRI RAVINDER DUDEJA
ADDL. DISTRICT JUDGE: DELHI.
PC No.351/06
Date of institution : 01.7.2002
Date on which the judgment was reserved for : 14.7.2008
Shri Shashi Kumar Jain (now deceased)
Through L.Rs. :
1. Shri Tarun Kumar Jain,
S/o Late Sh. Shashi Kumar Jain
2. Sh. Puneet Jain,
S/o Late Sh. Shashi Kumar Jain
3. Smt. Shashi Bala Jain,
W/o Late Sh. Shashi Kumar Jain
All Residents of :
R/o B-233, Derawal Nagar,
New Delhi.
............ Petitioners.
Versus
1. The State.
2. Sh. Anil Kumar Jain,
S/o Late Sh. Madan Lal Jain,
B-257, Derawal Nagar,
New Delhi.
3. Sh. Rajesh Kumar Jain,
S/o Late Sh. Madan Lal Jain,
R/o B-257, Derawal Nagar,
New Delhi.
4. Sh. Naresh Kumar Jain,
S/o Late Sh. Madan Lal Jain,
R/o 233, Derawal Nagar,
New Delhi.
(PC No.351/06) (Shashi Kr. Jain, thru L.Rs vs. State & Ors.)
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5. Smt. Sunita Jain,
W/o Sh. Vijay Kumar Jain,
R/o H. No.64, Neer Nagar Jain Colony,
Near Gur Mandi,
New Delhi.
6. Smt. Savita Jain,
W/o Sh. Rajiv Kumar Jain,
R/o House No.2693,
Sadar Khanan Road,
Opp. Post Office,
Delhi - 110 006.
............ Respondents.
JUDGMENT
1. This is a petition under Section 276 of the Indian Succession Act filed by Shri Shashi Kumar Jain for the grant of probate of Will dated 18.9.96 executed by late Shri Madan Lal Jain, son of late Sh. Sunder Dass Jain. Briefly stated, the facts as stated in the petition are that Shri Madan Lal Jain, father of the petitioner Shashi Kumar Jain expired on 7.12.2000. During his life time, he executed a Will dated 07.6.94, which was duly registered with the office of Sub Registrar. Later he executed another Will dated 18.9.96, which has not been registered. Besides the petitioner Shashi Kumar Jain, the deceased has left behind three sons and two daughters, who are respondents no.2 to 6.
2. Citation was published in newspaper 'National Herald', but no one appeared from general public to file any objection. Notice of the petition was given to the respondents. Respondent No.3, 5 & 6 filed (PC No.351/06) (Shashi Kr. Jain, thru L.Rs vs. State & Ors.) : 3: their no objection. Respondent No.4 was proceeded ex parte. The petition was contested only by respondent no.2 Anil Kumar Jain, who filed objections challenging the Will. He took preliminary objection that the Will is undated and is not bearing the signatures of Shri Madan Lal Jain on each page and is also not in the handwriting of Shri Madan Lal Jain. It has been stated that the properties mentioned in the Will were not self acquired property of late Shri Madan Lal Jain. Most of these properties were acquired out of the funds, income and assets of Hindu undivided family known as Madan Lal Jain (HUF) of which he was the Karta and his four sons i.e. petitioners and respondents no.2 to 4. Respondents No.2 to 4 are the co-parceners. It is, thus, stated that Shri Madan Lal Jain had no right, power or authority to execute the Will in respect of HUF property. It is also stated that even if the Will was executed, the same shall be the result of undue pressure, coercion and influence as Shri Madan Lal Jain was not in sound disposing state of mind and health and, therefore, the Will was not executed out of the free will and sound state of mind. It has further been stated that no reason has been given in the Will for not bequeathing any property to respondent no.2 and his family. It has also been stated that both the witnesses had proximity with the deceased. It has further been stated that the verification of the petition is not in accordance with the law and, therefore, the petition is liable to be dismissed. On merits of the case, the respondents denied all the averments made in the petition. (PC No.351/06) (Shashi Kr. Jain, thru L.Rs vs. State & Ors.) : 4:
3. Petitioner filed rejoinder to the objections of respondent no.2 therein reiterating the averments which he made in the petition.
4. Petitioner Shashi Kumar Jain expired during pendency of the case. His legal heirs were substituted as petitioners in the case. On completion of pleadings, following issues were framed on 18.4.2006 :
(1) Whether the Will dated 18.9.96 propounded by the petitioner is the validly executed, last and final Will of testator Madan Lal Jain? OPP.
(2) Whether testator Madan Lal Jain had got no right, power of authority to execute the Will in respect of bequeathed properties? OPD.
(3) Whether the petition has not been duly verified by the petitioner as well as the witnesses in accordance with law?
OPD.
(4) Whether the petitioner is entitled to the grant of probate in respect of Will dated 18.9.96? OPP.
(5) Relief.
5. In their evidence, Shri Tarun Kumar Jain, who is substituted as petitioner no.1 has tendered his duly sworn affidavit Ex.P1, wherein he stated about the averments made in the petition. He proved the death certificate of Shri Madan Lal Jain as Ex.PW1/2. (PC No.351/06) (Shashi Kr. Jain, thru L.Rs vs. State & Ors.) : 5:
6. PW2 is Shri Thakur Datta and PW3 Om Parkash Jain. They are the attesting witnesses of the Will. They tendered in evidence their duly sworn affidavits Ex.P2 and Ex.P3 respectively. They proved the Will dated 18.9.96 as Ex.PW2/A.
7. Respondent No.2 Anil Kumar Jain tendered his affidavit in evidence, but before his cross examination, compromise took place between the parties and as per compromise, which was duly recorded, respondent no.2 withdrew his objections and gave his no objection to the grant of probate of Will dated 18.9.96 of late Shri M.L. Jain. Since the Will dated 18.9.96 is in Urdu, the petitioners filed translated copy of the Will in English with declaration of the translator under Section 277 of the Indian Succession Act. My issue-wise findings are as under. ISSUE NO. 1
8. The Will dated 18.9.96 is a handwritten document in Urdu bearing the signatures of two persons named Om Parkash Jain and Thakur Datta as attesting witnesses. Both the attesting witnesses have been produced in court to prove the Will. PW2 Shri Thakur Datta in his affidavit has stated that he was the family friend of late Shri Madan Lal Jain and that he had written the Will Ex.PW2/A on the dictation of Shri Madan Lal Jain. He stated that Shri Madan Lal Jain himself read over (PC No.351/06) (Shashi Kr. Jain, thru L.Rs vs. State & Ors.) : 6: the same and made corrections in the Will in his own handwriting. Regarding execution and attestation, he stated that the testator Shri Madan Lal Jain had signed the Will at point B and he and other attesting witness Om Parkash Jain signed at points A & C respectively. According to him, the testator was having good physical and mental health and signed the Will after fully understanding the contents thereof. He has also stated about the previous Will dated 7.6.94 Ex.PW2/B, which was also written by him on the dictation of Shri Madan Lal Jain. The second attesting witness Shri Om Parkash Jain has also filed a similar affidavit, thereby corroborating the affidavit of PW2 Shri Thakur Datta. Both attesting witnesses were cross examined at length by the advocate of respondent no.2. They have stated that Shri Madan Lal Jain knew Urdu and had made corrections in the Will before signing the same in his own hand. They have stated in cross examination that first of all, the Will was signed by Shri Madan Lal Jain and then it was signed by Shri Thakur Datta and Sh. Om Parkash Jain. The cross examination of the attesting witnesses has not yielded anything in support of the objections of respondent no.2. Even otherwise, the objections have been withdrawn by respondent no.2. I do not find any suspicious circumstance surrounding the due execution and genuineness of the Will. Issue No.1 is, therefore, decided in favour of the petitioner(s).
ISSUE NO. 2 (PC No.351/06) (Shashi Kr. Jain, thru L.Rs vs. State & Ors.) : 7:
9. One of the objections of respondent no.2 was that the property bequeathed under the Will is an HUF property and, therefore the deceased was not competent to dispose of the same. In the exercise of testamentary jurisdiction, the court does not decide the question of title of the testator in respect of the property bequeathed. In the case of Brij Nath De vs. Chandar Mohan Banerj, ILR 19 Allahabad 458, quoted in Thomas P. Jacob vs. M.G. Varghese, AIR 1987 Kerala 196. It has been stated :-
"It has been contended that where an application for probate of a will is contested and it is alleged that the property dealt with by the will was not the testator's or was not property over which the testator had a power of testamentary disposal, it is the duty of the Court to try an issue raising this question. All we can say is that it would be exceeding inconvenient, if courts in this country had to try such issues. A Court could never be quite sure that it had got the proper parties before it. It would be difficult always to be sure that there was no collusion in the case. It is much safer in the interests of the public that issues as to the title to property should be decided when the issues are raised in a regular suit, and not on an application for a grant of probate."
10. The question as to whether the properties, which are subject matter of the Will in this case were the properties of HUF or were self acquired properties of the deceased, therefore, cannot be decided in (PC No.351/06) (Shashi Kr. Jain, thru L.Rs vs. State & Ors.) : 8: the present proceedings. The issue no. 2, therefore, as proposed is irrelevant for the proper adjudication of the present petition. Issue No.2 is, therefore, struck off the record.
ISSUE NO. 3
11. As per provisions of Section 281 of the Act, every petition for the grant of probate of any Will has to be verified by at least one of the attesting witnesses to the Will in the format as given in the Section. Section 281 of the Act has used the words "- - - - - the petition shall also be verified by at least one of the witnesses - - - -" and the format of the verification has also been given in the section. But at the same time, the effect of non observance of the provisions laid down under section 281 of the Act has not been given in the Act & therefore these provisions were held to be directory in Nand Kishore Rai vs. Mst. Bhagi Kuer and others, AIR 1958 Allahabad 329 and Jamuna Bai vs. Surender Kumar, AIR 1998 MP 274.
12. Admittedly, the petition is not verified in the manner provided under Section 281 of the Indian Succession Act, but the petition cannot be rejected on this ground. Issue No.3 is decided accordingly. ISSUE NO. 4 (PC No.351/06) (Shashi Kr. Jain, thru L.Rs vs. State & Ors.) : 9:
13. As per Section 222 of the Indian Succession Act, the probate is issued to a person named as executor of the Will. No one has been named as executor of the Will. Petitioner(s) are, therefore, not entitled to the grant of probate of the Will dated 18.9.96. By virtue of his Will, the deceased has bequeathed his house bearing No.515/3/A-1 and the firm M/s Ravon India Cosmetics and Trade Mark 'Ravon' situated at Gandhi Nagar, Delhi, to his elder son Shashi Kumar Jain. He bequeathed the basement and the ground floor of his House bearing No.B-233, situated at Derawala Nagar, Delhi to his eldest son Shashi Kumar Jain and bequeathed the first floor of the said house. The grandson of Tarun Jain. The entire domestic goods, articles, bank balances, jewellery and insurance money has again been bequeathed to Shashi Kumar and, thereafter to his children, who shall become the owner of the same. The HUF account in State Bank of India, Shakti Nagar, has been bequeathed in favour of all the four sons and thus Shashi Kumar Jain gets 1/4th share in the said account. The Will is silent with regard to House No.544/37, Onkar Nagar, Tri Nagar, Delhi, mentioned at item no.(g) of list of properties Ex.PW1/3. Petitioners gave up their claim with regard to the said property in these proceedings. Item No.(g) from the list of properties is, therefore, deleted. Shri Shashi Kumar Jain, the petitioner being the beneficiary of the Will is entitled to the grant of letter of administration of the Will. Issue No.4 is decided accordingly.
(PC No.351/06) (Shashi Kr. Jain, thru L.Rs vs. State & Ors.) : 10 : ISSUE NO. 5 (RELIEF)
14. In view of my findings on the above stated issues, letter of administration be issued in favour of the petitioner(s) with a copy of the Will Ex.PW2/A annexed thereto for due administration of the estate of the deceased Shri Mohan Lal Jain as detailed in the list of properties Ex.PW1/3 [except item no.(g)] subject to filing the requisite court fee and administration bond with surety. File be consigned to Record Room.
Announced in open (RAVINDER DUDEJA)
Court on 21.7.2008 ADDL. DISTRICT JUDGE:
DELHI.