Delhi District Court
State vs State & Ors 1 Of 8 on 5 November, 2016
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Old Probate Case No.- 82/14
New Probate Case No. 16161/16
Harish Kumar
S/o Sh. Baldev Kishan
R/o 7/42, Subhash Nagar,
Tihar-I, New Delhi-27
Versus
1. State
2. Pooja Monga
W/o Sh. Deepak Kr. Monga
D/o Late Sh. Baldev Kishan
R/o B-72, Nehru Vihar,
Delhi-54
......Respondent
Date of institution of the case : 05.09.2014
Date reserved for judgment on : 04.11.2016
Date of pronouncement of judgment : 05.11.2016
JUDGMENT:
1 An application under Section 278 of Indian Succession Act for grant of letters of administration in respect of Assets of the deceased namely, Darshan Khanna @ Darshan Kumar has been filed.
2 In brief the facts stated that Sh. Darshan Khanna @ Sh. Darshan Kumar S/o Late Shri Baldev Krishan Khanna ( hereinafter referred to as 'deceased') expired on 22.02.2004 at 7/42, Subhash Nagar, New Delhi. The deceased is only survived by the petitioner and respondent no. 2 who happens to be PC No. 16161/16 Harish Kumar Vs. State & Ors 1 of 8 brother and sister of the deceased respectively. The parents of the deceased have also expired. The deceased was unmarried and died issueless. It is further submitted that there are no other Legal heir of deceased other than the petitioner and respondent no. 2, therefore being Class-II legal heirs of the deceased, petitioner and respondent no. 2 are entitled for letter of administration.
3 It is further submitted that share of the deceased in house no. 7/42, Subhash Nagar, New Delhi-110027 measuring 100 sq. yds. which was bequeathed in his favour by his grandmother Smt. Kaushalya Rani by way of a registered Will. The petitioner seeks letter of administration in favour his in respect of the assets of the deceased namely, Darshan Khanna @ Darshan Kumar.
4 Upon filing the present petition, notice of the same was issued to all respondents/LRs of the deceased. Citation for general public was published in the daily newspaper "Veer Arjun"
dated 06.04.2015. Notice was also served to State through Chief Secretary and to Collector/SDM. Accordingly SDM, Rajouri Garden filed Valuation report in respect of the property in question bearing no. 7/42, Subhash Nagar, New Delhi-110027 and assessed the Market Value of the property in question as Rs.61,10,218/-.
5 In this case respondent no. 2 Ms Pooja Monga file NOC in favour of the petitioner and no objections has been filed on behalf of any public person in response to the citation published in daily newspaper 'Veer Arjun' on 06.04.2015.
PC No. 16161/16 Harish Kumar Vs. State & Ors 2 of 8 6 Petitioner in support of his case examined himself as PW-1 and tendered his evidence by way of affidavit Ex. PW-1/1. He proved the documents i.e Original Will of Smt. Kaushalay Devi executed in favour of petitioner and his brother, Sh. Darshan Kumar @ Sh. Darshan Khanna, deceased as Ex. PW-1/A. Death certificate of his grand mother late Smt. Kaushalay Rani as Ex. PW-1/B, Death certificate of late Sh. Darshan Khanna as Ex. PW- 1/C, Death certificate of late Sh. Baldev Kishan as Ex. PW-1/D and Death certificate of his mother Late Smt. Sudesh as Ex. PW-1/E. 7 Petitioner further examined Sh. Kishan Gopal, who is friend cum neighbour of the one of the attesting witness to the Will Ex. PW-1/A namely late Sh. Harbans Lal S/o Sh. Aya Ram. He deposed that earlier he used to say at House no. 2/247, Subhjash Nagar, New Delhi- 110027 and Sh. Harbans Lal used to stay at house No. 2/240, Subhash Nagar, New Delhi-110027. He used to often visit the house of Sh. Harbans Lal as they had friendly terms and have often seen him signing on various papers/documents in his presence. He identified the signatures of late Sh. Harbans Lal on the Will already exhibited as Ex. PW- 1/A at point A. Vide separate statement of petitioner, evidence on behalf of the petitioner was closed on 15.10.2016.
8 I have heard Ms Arpita Mishra proxy counsel for Sh. Murari Tiwari, counsel for the petitioner and perused the record.
9 In this petition there is no other respondent except stated and respondent no. 2 who has already filed NOC in favour of the petitioner and objection has not been filed on behalf of any person in view of the citation issued in Asian Age. The will Ex.
PC No. 16161/16 Harish Kumar Vs. State & Ors 3 of 8 PW-1/A is typed. It was registered on 13.12.1984. In typing the witness Herbans Lal appears to be signed in Urdu. According to petitioner he has died. However, no death certificate proved on record. No family member appeared in witness box to confirm the death of Herbans Lal and his signatures. One Krishan Gopal, neighbour appeared and identified the signatures of Herbans Lal.
10 In the Will there is no specific mentioning of second witness Sh. M.N. Sharma, Advocate. However at the margin a stamp has been put with signature. There is another stamp just above, where it is mentioned "drafted by M.N. Sharma, Advocate". Firstly, if M.N. Sharma was the second witness, then it is the duty of the petitioner to examine him to prove and established that will has been attested by two witnesses. The first page over leaf of the will bears the thumb impression of deceased, testatrix Kaushlya Rani and signatures of Herbans Lal. There is no signatures of M.N. Sharma, advocate as attested witness to the Will. It appears that Sh. M.N. Sharma has no intention to become attesting witness to the Will. In my considered opinion the Will Ex. PW-1/A has been attested by only one witness Sh. Herbans Lal . The petition filed by the petitioner is also not verified by any attesting witness, if Herbans Lal have died then it must have been verified by other attesting witness Sh. M.N. Sharma, Advocate but it has not been done. It also proves the fact that M.N. Sharma not intended to become attesting witness at the time of execution and registration of the Will. He was only scriber of the Will Ex. PW-1/A. 11 The Apex Court in the case of Janki Narayan Bhoir vs. Narayan Namdeo Kadam in Appeal (Civil) 11194 of 1995 PC No. 16161/16 Harish Kumar Vs. State & Ors 4 of 8 vide judgment dated 17.12.2002, categorically held that a Will has to meet the mandatory requirement of attesting by two witnesses, which is mandatory as per Section 63 (c) of Indian Succession Act. However, as per Section 68 of the Indian Evidence Act, the person who approaches the probate court has to get proved the Will to establish that it is the duly and validly executed Will. In order to establish the same, there is requirement of one attesting witness to be examined. The concession has been given in case mandatory requirement of Section 63 (c) of Indian Succession Act has been fulfilled. However, applying the law laid down by Apex Court in the present case, the Will of deceased Smt. Kaushlya Rani Ex. PW1/A has been attested by only one witness Sh. Herbans Lal. Therefore, it is not a legal and valid Will which fulfill the requirement as laid down by law under Section 63 of Indian Succession Act.
12 It is admitted case of the petitioner that deceased testatrix Smt. Kaushlya Rani died on 05.11.1985 and the Will was executed on 13.12.1984. The petitioner approached the court on 05.09.2014 after about 20 years of the death of deceased, testatrix. In the petition nowhere any circumstances mentioned which necessitated the petitioner to approach the court after 20 years. The law is well settled that Article 137 of Limitation Act is applicable in the Probate Case. The law is laid down by the Apex Court in the case of "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", 2008 SCC, Supreme Court of India, while answering whether Article of Limitation Act applies to the application for probate held as under "The genesis of Article 137 of the Limitation Act can be traced from Article 181 of the PC No. 16161/16 Harish Kumar Vs. State & Ors 5 of 8 Limitation Act, 1959. The Limitation Act contains different periods for a specified application. Even in the Limitation Act of 1908 where there is no period provided for a specific application, a residuary clause is included providing limitation for other applications. Article 181 of the Limitation Act, 1908 being the residuary clause contemplates the application for which no period of limitation is provided elsewhere in the schedule or by Section 48 of the Code of Civil Procedure, 1908 which was retained in the Limitation Act of 1963 with certain modification, which can be reasonably ascertained from the comparison of two provisions, which are depicted below:
"181. Application for which Three years when the right to period of limitation is pro-apply accrues.
Vided elsewhere in this schedule or by Section 48 of the Code of Civil Procedure,1908.
137. Any other application for Three years when the which no period of right to apply accrues limitation is provided elsewhere in this Division."
Such distinction is well explained by the Hon'ble Supreme Court in case of Kerala SEB Vs.T.P. Kunhaliumma, reported in (1976)4 Supreme Court Cases 634 in these words:-
"18. The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act 1963 compared with Article 181 of the 1908 Limitation Act shown that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other applications as in the 1963 Limitation Act. The word 'any other application' under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a Court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if the applicant or the appellant satisfies the court that he had sufficient cause PC No. 16161/16 Harish Kumar Vs. State & Ors 6 of 8 for not preferring the appeal or making the application during such period.
22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a Civil Court. With respect we differ from the view taken by the two-judge bench of this Court in Athani Municipal Council case2 and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 of the 1963 Limitation Act."
Thus, an application under any specified Act before the Civil Court is application conceived under Article 137 of the Limitation Act, 19963 as the distinction, which was sought to be made under Artilce 181 of the Limitation Act, 1908 have been obliterated by deletion and amendment of article 137 of the Limitation Act, 1963. it is no longer res integra that any other applications is not restricted to an application under the Code of Civil Procedure, but an application under special statue being filed before the Civil Court.
13 Hon'ble Supreme Court of India, further in the case of KRISHAN KUMAR SHARMA VS. RAJESH KUMAR SHARMA (2009) SCC, held that Article 137 of Limitation Act is applicable in case of Probate/ Letter of Administration but applicable as per judgment of in case "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", 2008 SCC, (Supra) "16. Rejecting Mr. Dalpatrai's contention. I summarise my conclusion thus-
(a)under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;
(b)the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is PC No. 16161/16 Harish Kumar Vs. State & Ors 7 of 8 unwarranted;
(c)Such an application is for the court's permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as along as as the right to do so survive and the object of the trust exists or any part of the trust, if created remains to be executed;
(d)the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased's death.;
(e)delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;
(f)such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates."
Conclusion (b) is not correct while Conclusion (c) is the correct position of law.
14 Now applying the above principle the present petition is barred by limitation.
15 On the basis of above discussion the Will Ex. PW-1/A is not a legal and valid will because it is not proved on record that it is attested by two attesting witnesses which legal mandatory. The petition is also barred by limitation. Hence petition is dismissed. No order as to cost. File be consigned to record room.
Announced in the open (Sanjay Kumar )
court on 5th November 2016 ADJ-02 (West)
Tis Hazari Courts
Delhi.
PC No. 16161/16 Harish Kumar Vs. State & Ors 8 of 8