Delhi District Court
Smt. Usha Bakshi vs The State on 26 April, 2018
IN THE COURT OF SH. GAJENDER SINGH NAGAR : LD.
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL
RENT CONTROLLER (CENTRAL) : DELHI
Petition No. : SC/32831/16
In the matter of:
Smt. Usha Bakshi,
W/o. Late Sh. Sudhir Kumar Bakshi,
R/o. Plot No. 755, New Hospital Road,
Near Udang Clinic, Sadul Colony,
Bikaner - 334001.
....Petitioners.
Versus
1 The State,
2 Smt. Sushila Devi (expired on 16.02.2010),
2A) Smt. Sunita Mehta,
W/o. Sh. Vijender Singh Mehta,
R/o. H.No. 73, Sector7,
Urban Estate,
Gurgaon (Haryana)
2B) Smt. Meena Dutta,
W/o. Mr. Dutta,
C/o. Sunita Mehta,
R/o. H.No. 73, Sector7,
Urban Estate,
Gurgaon (HR),
Petition no. SC/32831/16
2C) Smt. Renu Sharma,
W/o. Sh. Satish Chander Sharma,
C/o. Sunita Mehta,
R/o. H.No. 73, Sector7,
Urban Estate,
Gurgaon (Haryana).
.....Respondents.
Date of Institution : 03.12.2005 Date of order when reserved : 12.04.2018 Date of order when announced : 26.04.2018 J U D G M E N T : 1 The present succession petition has been filed by the
petitioner namely Smt. Usha Bakshi in respect of terminal benefits left by Sh. Sudhir Kumar Bakshi, who died intestate on 21.09.2005 at Delhi, claiming that the deceased Sh. Sudhir Kumar Bakshi was her husband.
2 After filing of this petition, notice was given to the general public by way of publication in the newspaper 'Indian Express' dated 30.05.2006, but none has appeared from general public to oppose or contest the present petition.
3 In the written statement/objection filed on behalf of the employer of the deceased, it is averred that the deceased employee had Petition no. SC/32831/16 furnished nomination for gratuity and provident fund in the name of his mother in the prescribed form on 15.01.1980 and 19.12.1989, respectively. It is further averred that the deceased nominee had certified that he has no family as defined in para no. 2 (g) of the EPF Scheme, 1952 and further certified that his father/mother is dependent upon him. It is averred that on 09.12.2002, the deceased married Smt. Usha Bakshi, however, the nomination could not be changed. It is averred that as per the provisions of payment of Gratuity Act, 1972 under Clause 6 (4) (Nomination) wherein it has been provided that if at the time of making a nomination the employee has no family, the nomination may be made in favour of any person or persons, but if the employee subsequently acquires a family, such nominations shall forthwith become invalid and the employee shall make within such time as may be prescribed a fresh nomination in favour of one or more members of his family. It is further averred that Smt. Sushila Devi Bakshi (mother of the deceased) had filed a suit bearing no. 276/2005 in the Gurgaon Court seeking payment of all the dues in her favour, however, the same had been dismissed on account of lack of Petition no. SC/32831/16 jurisdiction. It is further averred that as per the practice the family pension has to be released in favour of the widow, however, counter claim had been filed by the mother and widow in this matter. 4 Written statement filed on behalf of Smt. Sushila Devi Bakshi (mother of the deceased) wherein it is averred that petitioner has no locus standi to file the present petition as deceased Sh. Sudhir Kumar Bakshi before his death had made a Will on 21.06.2005, in her favour and in that Will the deceased had mentioned that petitioner does not want to live with the deceased. It is further mentioned in the Will that no child was born from the wedlock of the deceased with the petitioner. It is also mentioned in the Will that his wife (petitioner) is not looking after him, and now she has left alongwith all valuable articles with her. It is also mentioned in the Will that petitioner was not coming to take care of the deceased, that mother of the deceased was looking after him. It is contended that by way of the Will, the deceased bequeathed all his assets to his mother including money lying in the bank and company. It is stated that the deceased was suffering from Cancer and was under treatment at Ganga Ram Petition no. SC/32831/16 Hospital, Delhi, due to his ill health he was compelled to made a Will in favour of his mother i.e. respondent no. 2 Smt. Sushila Devi Bakshi. It is averred that the present petition is not maintainable on the ground of jurisdiction as the deceased Sh. Sudhir Kumar Bakshi was resident of Gurgaon (Haryana) and he was permanent resident of House No. 240/14, Basai road, Opp. Dr. Pasricha Clinic, Gurgaon (Haryana). It is averred that the petitioner Smt. Usha Bakshi after getting married with deceased Sh. Sudhir Kumar Bakshi resided at Gurgaon till his death and hence, this Court has got no jurisdiction to entertain the present petition. It is averred that Sh. Sudhir Kumar Bakshi has also made respondent no. 2 as his nominee in his EPF Scheme, 1952 dated 19.12.1989.
5 During the pendency of the petition, respondent Smt. Sushila Devi Bakshi has expired leaving behind her LRs namely Smt. Sunita Mehta, Smt. Meena Dutta and Smt. Renu Sharma, who are all daughters of the deceased respondent. Smt. Sunita Mehta represented her sisters Smt. Meena Dutta and Smt. Renu Sharma in the Court. They have filed objections wherein it has been mentioned that Petition no. SC/32831/16 respondent no. 2 St. Sushila Devi Bakshi has expired on 16.02.2010 leaving behind a Will dated 24.11.2005 according to which all the present legal heirs i.e. LRs' No. (i), (ii) and (iii) have inherited all her movable and immovable properties and in the said Will reference of the present case was also specifically given. The other objections are same as mentioned in the original objections filed by Smt. Sushila Devi Bakshi.
6 Reply/rejoinder has been filed denying all the averments made in the objection. It is submitted that the Will of the deceased Sh. Sudhir Kumar Bakshi is forged and fabricated document. 7 In order to substantiate her case, the petitioner Smt. Usha Bakshi herself deposed as PW1. It is stated by her that deceased Sh. Sudhir Kumar Bakshi was her husband, who expired on 21.09.2005 at Delhi and his death certificate is Ex. PW1/A. It is stated that besides her, the deceased has left behind his mother Smt. Sushila Devi. It is stated that Smt. Sushila Devi expired on 16.02.2010 leaving behind her daughters namely Smt. Sunita Mehta, Smt. Meena Gupta and Smt. Renu Sharma. It is stated that except the aforesaid LRs, there is no Petition no. SC/32831/16 other near relatives of the deceased Sh. Sudhir Kumar Bakshi. It is stated that the deceased was working with M/s. Hindustan Fertilizer Corporation Limited and the deceased has left behind service dues with his employer. It is stated that after the death of Sudhir Kumar Bakshi, her mother in law and sisters in law started quarreling with present petitioner on daily basis, they forced her to leave the house. In her crossexamination, it is accepted by her that she has withdrawn the money from SBI and Jammu and Kashmir Bank accounts after death of the deceased, it is voluntarily stated by her that the said accounts were joint accounts. It is stated by her that no Will was executed by her late husband as per her knowledge.
8 PW2 Sh. B.M. Pathak, Chief Manager, Central Bank of India, Nehru Place deposed in respect of saving bank account bearing no. 1132220316 (Old No. 22333) lying in the name of Sudhir Kumar Bakshi. It is stated that as per bank record, an amount of Rs. 52,291/ is lying in the said account, the certified statement of the said account is Ex. PW2/1. It is stated that last credit entry Rs. 4,000/ on 15.03.2005. No payment thereafter made in the account. However, Petition no. SC/32831/16 crossexamination of this witness could not be completed, hence his deposition cannot be read in evidence.
9 PW3 Sh. Madan Lal, Technologist (Medical Records), Batra Hospital, New Delhi brought medical record of the deceased. The said documents are exhibited as Ex. PW3/1. 10 PW4 Sh. Gauri Shanker, Assistant Manager, Central Bank of India, filed the certified copy of saving bank account bearing no. 22333 lying in the name of Sudhir Kumar Bakshi having a balance of Rs. 54,404/. It is stated that no nomination is registered in the said account, the certified copy of which is Ex. PW4/1. 11 PW5 Sh. S.C. Pawar, Accounts Officer, Hindustan Fertilizers filed the certified copies of the relevant records pertaining to the service dues of the deceased, the same are exhibited as Ex. PW 5/2 (Collectively). In his crossexamination he stated that in PF and Gratuity Nomination Forms, the nominee of the deceased was her mother. It is stated that no copy of Will executed by deceased was furnished by Smt. Sushila Devi Bakshi in their department. This witness identified a document, Ex. PW5/D1 which is a letter bearing Petition no. SC/32831/16 signature of Sh. Laxman Singh, Assistant in their company. He also identified letter, Ex. PW5/D2 signed by another officer of their company.
12 No other petitioner's witness was examined and petitioner's evidence was closed.
13 Objector Smt. Sunita Mehta deposed as R2/W1. She stated that she alongwith Smt. Meena Dutta and Smt, Renu Sharma are the daughters and legal heirs of respondent, Smt. Sushila Devi Bakshi. It is stated that she is representing other two legal heirs as their GPA Holder, she exhibited the GPA as Ex. R2W1/1. It is stated by her that her father had expired when she was very young, it is stated that she has three siblings i.e. namely Smt. Meena Dutta, Smt. Renu Sharma and deceased Sh. Sudhir Kumar Bakshi. It is stated that the deceased got married with the petitioner Smt. Usha Bakshi on 09.12.2002 at Gurgaon. It is stated that petitioner was of quarreling nature from the very first day of her marriage. It is stated that deceased was admitted on 12.09.2005 and expired on 21.09.2005 in Batra Hospital. It is stated that husband of this witness and her mother were looking after Petition no. SC/32831/16 the deceased during his ailment. She also exhibited a number of documents pertaining to medical record and other formalities of treatment as Ex. R2W1/2 till R2W1/3. It is stated that even earlier on 04.07.2004 petitioner left the company of the deceased and had sent him two letters in this regard which are marked as MarkA and MarkB. It is stated that due to the aforesaid act and conduct of the petitioner, the deceased executed a Will dated 21.06.2005 in favour of his mother i.e. deceased respondent no. 2 Smt. Sushila Devi Bakshi. It is stated that the conduct of the petitioner was mentioned in the Will. It is stated that the said Will was drafted by Ms. Sunita Bhargava, Advocate, Gurgaon in presence of this witness. It is further stated that the said Will was witnessed by her husband Late Sh. Vijender Singh Mehta as well as by their maternal uncle Late Sh. Bal Kishan Dutta. It is stated that on the basis of the said Will the petitioner has no right and interest in the movable and immovable properties of the deceased. It is also stated by her that on 01.10.2005 her mother was beaten by the petitioner and her brother. Copies of complaint regarding the same are Ex. R2W1/10 to Ex. R2W1/13. It is stated that mother of the Petition no. SC/32831/16 deceased is his nominee in the Employees Provident Fund and Gratuity Scheme. It is stated that respondent Late Smt. Sushila Devi had written a number of letters to Hindustan Fertilizers Company which are exhibited as Ex. R2W1/14 till Ex. R2W1/19. It is stated that even earlier respondent has filed a suit for permanent injunction against Hindustan Fertilizers Company and the petitioner. In her crossexamination, Will of the deceased exhibited as R2W1/9 was marked as R2W1/A as the same was only a copy of the Will. Ex. R2W1/23 also marked as MarkR as it is also a copy of the alleged Will of Smt. Sushila Devi (respondent). It is accepted by this witness that petitioner remained in the hospital on one or two occasions to see the deceased. It is denied by this witness that deceased had not made any Will. It is stated by her that they have filed no case in any Court of law. It is further denied by her that the same is a false document. It is stated by her that photocopy of the Will is MarkR2W1/A. It is accepted by her that at the time of filing the reply (objections) as well as at the time of filing the document, the copy of Will was not on record. It is voluntarily stated by her that the same is part of her Petition no. SC/32831/16 affidavit.
14 R2/W2 Ms. Sunita Bhargava, Advocate deposed that she drafted the Will dated 21.06.2005, the copy of the same is Ex. R2/W 2/A. She further deposed that she signed on the Will at point A on Ex. R2/W2/A and attesting witnesses namely Sh. Bal Kishan Dutta and Sh. Vijender Singh Mehta had signed as attesting witnesses in her presence at point B and C on the said Will. It is further stated that the Testator had also signed in her presence at point D. In her cross examination, it is stated by her that she is not maintaining any register regarding Will drafted by her.
15 No other witness was examined on behalf of the respondent/ objector and respondent's evidence was closed. 16 The court has heard the arguments advanced by the Ld. Counsel for the parties and perused the record carefully. Contention of the Ld. Counsel for the petitioner is that the petitioner, Smt. Usha Bakshi is the wife of the deceased, hence she is entitled to her due share in the debts and securities left by deceased being a ClassI legal heir. On the other hand, contention of the respondent is that the Petition no. SC/32831/16 petitioner was not having good relations with her deceased husband due to which the deceased had executed a Will, thereby bequeathing all his properties to his mother i.e. respondent Smt. Sushila Devi. It is further contended that during pendency of present petition, Smt. Sushila Devi died, consequently, her three daughters namely Smt. Sunita Mehta, Smt. Meena Dutta and Smt. Renu Sharma were impleaded as her legal heirs. It is further contended that Smt. Sushila Devi also executed a Will thereby bequeathed all her assets to her three daughters. It is contended that Smt. Sushila Devi was the nominee in the PPF and Gratuity Scheme of the deceased. It is prayed that on the basis of Will and nomination of Smt. Sushila Devi the entire debts and securities of the deceased be given to Smt. Sushila Devi, since Smt. Sushila Devi has expired, hence the said property may be released in the name of her three legal heirs. 17 It is no longer res integra that succession petitions are to be decided summarily. Sec. 373 of the Indian Succession Act provides that a succession petition is to be decided in a summary manner and even if court cannot decide the right to the certificate without Petition no. SC/32831/16 determining questions of law or fact which may seem to be too complicated and difficult for determination in a summary proceedings, the Court may nevertheless grant a certificate to a person if he appears to be the person having prima facie the best title thereto. Thus U/s. 373 of Indian Succession Act, only prima facie case is to be seen and other questions of law and fact which may be complicated are to be decided by a regular civil court.
In the case of Madhvi Amma Bhawani Amma and others, Appellants Vs. Kunjikutty Pillai Meenakshi Pillai and others, Respondents. AIR 2000 Supreme Court 2301=2000 AIR SCW 2432 it was held that "subsec. (3) of S. 373 of Succession Act which deals with procedure for grant of certificate reveals two things, first adjudication for grant of certificate is summary proceedings and secondly if the question of law and fact are intricate or difficult, it could still grant the said certificate based on applicants prima facie title. In other words the grant of certificate under it is only a determination of prima facie title. This as a necessary corollary confirms that it is not a final decision between the parties. So, it Petition no. SC/32831/16 cannot be construed that mere grant of such certificate or a decision in such proceeding would constitute to be decision on an issue finally decided between the parties. If that be so the principle of res judicata cannot be made applicable."
18 In the present petition, it is admitted position that petitioner is the widow of the deceased. It is also admitted that there was no child born out of the wedlock between petitioner and the deceased. It is also admitted fact that Smt. Sushila Devi was the mother of the deceased. It is also admitted that Smt. Sushila Devi died during pendency of the present petition leaving behind her three daughters as her legal heirs. The only contentious point in the matter is the existence of Will of deceased dated 21.06.2005. Thus, the undersigned has to see whether the Will dated 21.06.2005 is genuine one, duly executed and whether the same has been duly proved on record.
19 Following are the relevant provisions of law required to be considered in order to prove a will: a. As per section 63 of the Indian Succession Act, it has to Petition no. SC/32831/16 be proved that the deceased had executed the Will and the Will is required to be attested by two or more witnesses, each of whom inter alia has seen the Testator signing or affixing his thumb mark to the Will and that each of the witnesses signed on the Will in the presence of the Testator, or has received from the Testator a personal acknowledgment of his signatures and each of the witness shall sign the will in presence of the Testator, however, it is not necessary that more than one witness be present at the same time.
b. Section 68 of the Indian Evidence Act further provides that if a document is required by law to be attested, it should not be used in evidence unless one attesting witness has been examined to prove the Will. As per Section 69 of the Indian Evidence Act if none of the attesting witness can be found than it must be proved that the attestation of one attesting witness atleast is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
c. It is clear from the definition that the attesting witness must state that each of the two witnesses had seen the executor sign or Petition no. SC/32831/16 affix his mark to the instrument or had seen some other person sign the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witnesses signed the instrument in the presence of the executant. These are the ingredients of attestation and they have to be proved by the witnesses. The word 'execution' in Section 63 includes attestation as required by law.
d. While making attestation by the attesting witness, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
e. In cases wherein the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testator's free Petition no. SC/32831/16 will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain.
20 In the case in hand, none of the attesting witness could be examined in the Court as both of them died prior to deposition in the present Court. Further, the alleged original Will dated 21.06.2005 was never produced before the Court at any stage of the proceedings. Though, R2W1 Smt. Sunita Mehta initially exhibited the Will in her affidavit, however the same was deexhibited and marked in her cross examination. She also admitted in her crossexamination that at the Petition no. SC/32831/16 time of filing the reply (objections) as well as at the time of filing the documents, the copy of Will was not on record. It is nowhere written in the evidence of Smt. Sunita Mehta that the original Will was seen and written. Similarly, R2/W2 Smt. Sunita Bhargava though exhibited the Will in her evidence as Ex. R2/W2/A, however it is clearly mentioned in her evidence that Ex. R2/W2/A is only the copy of the Will. Thus, in the present matter the primary evidence i.e. the original Will was never produced before the Court. Further, the requirements of bringing on record secondary evidence as provided in Section 65 of the Indian Evidence Act have not been fulfilled in the present matter as nowhere in the objections or the testimony of respondents/ objectors, it was mentioned that the original Will is with the opposite party, or the same has been destroyed, lost, further no reason has been given for not bringing the same before the Court. It is to be noted that the Will was not admitted by the opposite party in the present matter. Thus, it can be safely held that the alleged Will dated 21.06.2005 has not been duly proved on record as per law. Thus, the estate left behind by the deceased, Sh. Sudhir Kumar Bakshi will be Petition no. SC/32831/16 divided as per the law contained in Hindu Succession Act for intestate succession of a male.
21 The contention of the respondent that since Late Smt. Sushila Devi Bakshi was the nominee of the deceased in PPF and Gratuity Scheme, hence entitled for the amount left in PPF and Gratuity Scheme by the deceased, is not tenable. It is settled principal that nominee cannot enter into the shoes of the successor as he/ she is only entitled to receive debts and securities of the deceased being trustee of legal heirs of the deceased. Nomination cannot over ride the law of succession. Reference can be made to decisions rendered by Hon'ble Supreme Court in the cases of Vishin N. Khanchandani Vs. Vidhya Lachmandass Khanchandani AIR 2000 SC 2747 and Sarbati Devi Vs. Usha Devi AIR 1984 SC 346.
22 In these circumstance, the entire debts and securities left by the deceased will be equally distributed amongst widow of the deceased and his mother as they were the only ClassI legal heirs left by the deceased. Since during pendency of the case, Smt. Sushila Petition no. SC/32831/16 Devi Bakshi died, hence her share will be distributed amongst her legal heirs i.e. her three daughters namely Smt. Sunita Mehta, Smt. Meena Dutta and Smt. Renu Sharma. It is to be noted that the legal heirs of Smt. Sushila Devi have alleged that there is a Will of Smt. Sushila Devi, however even that Will has not proved on record. Be that as it may, even as per Section 15 of Hindu Succession Act, the daughters of Late Smt. Sushila Devi are the only one entitled for estate left by her.
23 Thus, the entire debts and securities left by deceased, Sh. Sushil Kumar Bakshi be distributed in two equal parts, one part may be given to petitioner, Smt. Usha Bakshi and the another part may be divided equally amongst legal heirs of Late Smt. Sushila Devi namely Smt. Sunita Mehta, Smt. Meena Dutta and Smt. Renu Sharma. The court is of the considered opinion that there is prima facie no impediment for grant of succession Certificate in their favour. Accordingly, a succession certificate be issued in favour of petitioner Smt. Usha Bakshi as also in favour of respondents Late Smt. Sushila Devi through her LRs namely Smt. Sunita Mehta, Smt. Meena Dutta Petition no. SC/32831/16 and Smt. Renu Sharma in respect of the terminal benefits of deceased Sh. Sushil Kumar Bakshi in the following ratio : Petitioner Smt. Usha Bakshi : Will receive half of the share in the debts and securities of the deceased Sh. Sushil Kumar Bakshi.
Family pension, if any, may be granted to her.
Respondents namely : Will receive equal share Smt. Sunita Mehta,Smt. Meena in remaining half share in Dutta & Smt. Renu Sharma the debts and securities of the deceased Sh. Sushil Kumar Bakshi, being the legal heir of their mother Smt. Sushila Devi.
As per details of terminal benefits filed by the Hindustan Fertilizer Corporation Limited, a sum of Rs. 18,76,692.55 is lying outstanding in the name of the deceased. Further a sum of Rs. 54,404/ is lying in the saving bank account maintained with Central Bank of India, Nehru Place branch, as per which the outstanding amount lying in the name of deceased is Rs.19,28,983.55. Succession certificate be drawn on deposit of requisite proportionate court fees of Petition no. SC/32831/16 Rs.48,224/ on furnishing an Indemnity Bond with one surety within 15 days.
File be consigned to Record Room.
Announced in the open court (GAJENDER SINGH NAGAR ) on 26.04.2018 Administrative Civil Judgecum Additional Rent Controller (Central) Delhi.
THIS JUDGMENT CONTAINS 23 PAGES
Petition no. SC/32831/16
SC/32831/16
26.04.2018
Present : None.
Vide separate judgment of even date, it is held that there is primafacie no impediment for grant of Succession Certificate in favour of petitioner Smt. Usha Bakshi as also in favour of Late Smt. Sushila Devi through her LRs namely Smt. Sunita Mehta, Smt. Meena Dutta and Smt. Renu Sharma in respect of terminal benefits and bank account of the deceased Sh. Sushil Kumar Bakshi. Accordingly, a succession certificate be issued in favour of petitioner Smt. Usha Bakshi as also in favour of respondents Late Smt. Sushila Devi through her LRs namely Smt. Sunita Mehta, Smt. Meena Dutta and Smt. Renu Sharma in respect of the terminal benefits of deceased Sh. Sushil Kumar Bakshi in the following ratio : Petitioner Smt. Usha Bakshi : Will receive half of the share in the debts and securities of the deceased Sh. Sushil Kumar Bakshi.
Family pension, if any, may be granted to her.
Petition no. SC/32831/16
Respondents namely : Will receive equal share
Smt. Sunita Mehta,Smt. Meena in remaining half share in Dutta & Smt. Renu Sharma the debts and securities of the deceased Sh. Sushil Kumar Bakshi, being the legal heir of their mother Smt. Sushila Devi.
As per details of terminal benefits filed by the Hindustan Fertilizer Corporation Limited, a sum of Rs. 18,76,692.55 is lying outstanding in the name of the deceased. Further a sum of Rs. 54,404/ is lying in the saving bank account maintained with Central Bank of India, Nehru Place branch, as per which the outstanding amount lying in the name of deceased is Rs.19,28,983.55. Succession certificate be drawn on deposit of requisite proportionate court fees of Rs.48,224/ on furnishing an Indemnity Bond with one surety within 15 days.
(Gajender Singh Nagar) ACJ/ARC (Central) Delhi/26.04.2018 Petition no. SC/32831/16