Delhi District Court
Smt. Suman vs The State on 18 August, 2009
1
IN THE COURT OF SHRI V.P. VAISH, DISTRICT JUDGE-II CUM
ADDL. SESSIONS JUDGE (NORTH) TIS HAZARI COURTS, DELHI
MPC No. 94 / 2006
Date of institution: 21.12.2004
Judgment reserved on:12.08.2009
Judgment pronounced on:18.08.2009
Smt. Suman ......... Petitioner
Versus
The State ........ Respondent
Petition under Section 263/264 of Indian Succession Act on
behalf of Sh. Sudhi Kant Jha s/o Late Sh. Mangal Jha r/o J- 61,
Old Seemapur, Delhi for revocation or Annulment of the
grant of Letters of Administration in respect of unregistered
Will dated 31.01.97.
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JUDGMENT
1. This is a petition u/s 263 of the Indian Succession Act for revocation of grant of letters of administration, vide judgment dated 09.10.03 in probate case no. 24/01.
2. The facts germane to the present petition are that respondent herein, Smt. Suman filed a petition u/s 276 of Indian Succession Act for grant of Letters of Administration/Probate in respect of Will dated 31.01.97 executed by late Sh. Vasudev Sharma s/o Sh. Kishan Nath. Notice of the petition was issued to the Collector and citation to general 2 public was published in the newspaper 'Statesman' dated 04.08.01 but no one appeared from the general public to file any objections. The respondent herein had filed an affidavit stating that there was no other relative of the deceased. The petition was allowed by my learned predecessor vide Judgment dated 09.10.03 and Letters of Administration was ordered to be issued in favour of respondent with regard to Will Ex. PW 2/1 executed by Late Sh. Vasudev Sharma, with a copy thereof annexed thereto, subject to furnishing valuation report, requisite court fee and administration bond with one surety.
3. The petitioner/applicant herein Sh. Sudhi Kant Jha has filed the present application for revocation of judgment dated 09.10.2003 on the ground inter-alia that deceased Sh. Vasudev Sharma was owner of property no. J-48, J-49 situated in the abadi of Old Seelampur, Delhi, he had filed an eviction petition bearing no. 169/91 dated 05.09.91 against Sh. Ram Naresh Srivastav who was one of his tenants, in the said petition the deceased made a statement that there is one more tenant namely Daya Ram, husband of the non applicant, Smt. Suman. On 24.11.97, Sh. Vasudev Sharma died in mysterious circumstances, the applicant filed complaint with police but no enquiry was conducted. The respondent herein obtained letters of administration fraudulently and by playing fraud, the respondent herein had forged the Will dated 31.01.97 in collusion with her husband Sh. Daya Ram, her brothers Sh. Mahabir, Sh. Mahender Kumar, Sh. K.L. Dhingra and Ms. Harvesh.
34. The applicant has also alleged that a trust namely 'Swargiya Vasudev Sharma Smarak Nidhi Trust' was formed in the name of deceased Sh. Vasudev Sharma of which, the applicant is the President. The applicant was not given any opportunity to file objections in the petition for probate. The applicant has also stated that admittedly there is no legal heir of deceased Sh. Vasudev Sharma who has come forward and the property of Late Sh. Vasudev Sharma should go to the State.
5. Notice of the present application was issued to non applicant Smt. Suman. The non applicant Smt. Suman has contested the application by filing reply on the ground inter-alia that applicant Sh. Sudhi Kant Jha has no locus standi to file the present application, the applicant has no relation or any concern with the deceased Vasudev Sharma who executed will in favour of non applicant. The applicant and some other persons of the locality wanted to grab the property and the present application has been filed on instigation of Sh. Ashok Choudhary and Sh. Soran Lal Sharma. It is further alleged by the non applicant that the present application has been filed only to harass and black mail her. The non applicant, Smt. Suman and her husband were looking after and maintaining deceased Sh. Vasudev Sharma and also providing medicines and treatment through doctors and hospitals. The deceased was a bachelor, he had no relative and he was treating the non applicant as his adopted daughter as she was serving and giving full love and affection to him and treating him as her father.
46. On merits, it is denied that applicant is a follower of deceased Vasudev Sharma. The applicant had no concern with the deceased. The death of deceased Sh. Vasudev Sharma was natural and his last ceremonies were performed by the non applicant and her husband. It is also denied that the non applicant forged the will dated 31.01.97.
7. The applicant filed rejoinder to the reply filed by non applicant, denied the allegations made in the reply and reiterated the plea taken in the application.
8. On the pleadings of parties, my learned predecessor framed issues on 03.07.2006.
1. Whether the Letter of Administration dated 12.01.2004 has been obtained by non applicant by playing fraud and concealment of facts from the Court? OPA
2. Whether the Letter of Administration dated 12.01.2004 is liable to be revoked? OPA
3. Relief.
9. The applicant in support of his case examined as many as five witnesses . AW-1 Sh. Ashok Kumar Choudhary has tendered his affidavit which is Ex. A-1.By way of affidavit he deposed that he knew deceased Vasudev Sharma since childhood, deceased was very learned person/scholar and was owner of property no. J-48 and J-49 situated in the abadi of Old Seelampur, Delhi. The objector Sudhi Kant Jha was close to the deceased being his follower. The deceased filed 5 eviction petition against one Ram Naresh Srivastav, deceased died under mysterious circumstances on 24.11.07. The non applicant Suman, her husband, her brother and Sh. K.L. Dhingra hatched a conspiracy to grab the property of the deceased. The deceased never executed any Will dated 31.01.07. In his cross examination he denied that all the ceremonies of deceased were performed by husband of Smt. Suman. He also denied that Suman is in possession of property after the death of deceased. He admitted that Vasudev Sharma filed a revision petition against tenant Ram Naresh but he could not tell after the death of Vasudev Sharma, Smt. Suman was substituted as LR of Vasudev Sharma. He denied that deceased had borrowed loan from a cooperative bank or that Smt. Suman had repaid the balance amount of loan after the death of deceased.
10. AW-2 Sh. Brahm Prakash has tendered his affidavit of evidence which is Ex. A-2. In cross examination he denied that he alongwith Ashok Kumar, Sudhi Kant Jha, Ram Nath Jha and Hansraj wanted to grab the property of Vasudev Sharma.
11. AW-3 Sh. Hans Raj has tendered his affidavit of evidence which is Ex. A-3. In cross examination he stated that age of deceased Vasudev Sharma was about 60 to 70 years at the time of his death. There was a tenant namely Sh. Ram Naresh Srivastava on the ground floor. He denied that Smt. Suman used to provide food and medicines to the deceased. He also denied that Vasudev Sharma and Sudhi Kant Jha were having strained relations.
612. AW- 4 Sh. Sudhi Kant Jha is the applicant. He has tendered his affidavit which is Ex. A-4. By way of his affidavit he deposed in terms of petition. He deposed that Vasudev Sharma filed an eviction petition no. 167/91 against Sh. Ram Naresh Srivastava who was one of his tenant, in the said case he made statement, certified copy of said statement is Ex. CW 13. On 24.11.97, Vasudev Sharma died under mysterious circumstances, local residents filed complaint to the police, photocopy of the said complaint is Mark A and postal receipts are Mark B to Mark E. Smt. Suman and her husband filed suit no. 574/97 titled as Daya Ram & Anr. vs. Mahavir Singh & Anr, a local commissioner was appointed in the said suit, certified copy of the said plaint is Ex. CW 4/3. Mr. Ram Naresh Srivastava who was tenant of the deceased Vasudev Sharma offered him some share. A suit no. 24/01 titled as Suman vs. Ram Naresh & Ors was filed. The said suit was dismissed as Smt. Suman & Ors. compromised the suit on 09.08.04. Photocopy of certificate of Swargiya Vasudev Sharma Smarak Trust as Mark G. In cross examination, he could not tell who performed the last rites of Vasudev Sharma or that his last ceremonies were performed by Sh. Daya Ram, husband of Smt. Suman. He denied that deceased Vasudev Sharma was treating Smt. Suman as his adopted daughter because she was looking after him and serving him and providing medicines. He also denied that Vasudev Sharma had good faith on Smt. Suman and due to said reason, he executed a will in favour of Smt. Suman. He had no relationship with Vasudev Sharma.
713. AW-5 Sh. S.P. Khanduri, working as Head Messenger in State Bank of India has proved the specimen signature of Vasudev Sharma as Ex. AW 5/1 and copy of statement of account of saving a/c no. 01190/0211007, new number 10028273280 of deceased Vasudev Sharma as Ex. AW 5/B. In cross examination he could not tell when the account was opened, probably the account was opened in the year 1975-76. The account is still in operation.
14. The applicant had also filed affidavit of Sh. Ram Nath Jha but he was not examined by the applicant. The applicant closed his evidence, vide his statement dated 18.07.07.
15. The non applicant Smt. Suman examined herself as RW-1. She tendered her affidavit of evidence as Ex. R-1. By way of her affidavit she has deposed in terms of the reply to the application. She stated that Vasudev Sharma filed an eviction petition against the tenant and made statement in said case, copy of petition is Mark RX-1 and statement of late Sh. Vasudev Sharma is Mark RX-2. She denied that suit for injunction bearing no. 574/07. The copy of plaint and proceedings of local commissioner are Mark RX-3. In cross examination she admitted that she filed suit for permanent injunction bearing no. 574/94 against Sh. Mahavir. She denied that Sh. K.L. Dhingra had taken her husband in adoption. She had given her son in adoption to Sh. K.L. Dhingra. She admitted that Ram Naresh Srivastava filed a civil suit against her bearing no. 174/03 which was dismissed as compromised. She came to know about the will when 8 she came to the court. She could not tell when property no. J-49, Old Seelampur, Delhi was sold by Vasudev Sharma to her husband. She admitted that she had purchased property no. J-49, Old Seelampur, Delhi from Vasudev Sharma.
16. The non applicant had filed affidavit of Sh. Narender Kumar, his examination in chief was recorded but he was not produced for cross examination. Hence, his statement cannot be read in evidence. Thereafter, the non applicant Smt. Suman did not chose to examine him and closed her evidence vide her statement dated 30.04.08.
17. I have heard Sh. Satish Kumar, Advocate, learned counsel for the applicant and Shri Rohtash Singh, learned counsel for the non applicant. I have also carefully gone through material on record. My issuewise findings on above issues are as follows ISSUE NO. 1
18. Ld. Counsel for applicant urged that deceased Vasudev Sharma had no issue and was a religious person. A trust by the name of Swargiya Vasudev Sharma Nidhi Trust was formed and the applicant Sudhi Kant Jha is the President of said trust. He also contended that non applicant was a tenant under the deceased Vasudev Sharma. The deceased Vasudev Sharma had filed a petition against another tenant Sh. Ram Naresh Srivastava and in the said petition he made a statement but the deceased did not disclose about the Will dated 9 31.01.97 in the said petition. The non-applicant was not related to the deceased and the non applicant Smt. Suman had forged the Will dated 31.01.97.
19. Per Contra, Learned counsel for the non applicant has contended that deceased Vasudev Sharma died issuless and he had executed a Will dated 31.01.97 in favour of Smt. Suman. The deceased had sold plot no. J-49, Old Seelampur, Delhi to Sh. Daya Ram, husband of non applicant. The non applicant was serving the deceased and used to look after him and the deceased had executed Will in favour of non applicant.
20. Ld. Counsel for non applicant also submitted that applicant is not legal heir of the deceased, Vasudev Sharma and he has no right to move the present application.
21. Section 263 of the Indian Succession Act lays down the grounds under which the grant of probate / Letters of Administration may be revoked or annulled. It reads as under:-
"263. Revocation or annulment for just cause.-The grant of probate or letters of administration may be revoked or annulled for just cause.
Explanation- Just cause shall be deemed to exist where-
(a) the proceedings to obtain the grant were defective in substance; or 10
(b) the grant was obtained fraudulent by making a false suggestion, or by concealing from the Court something material to the case; or
(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or
(d) the grant has become useless and inoperative through circumstances; or
(e) the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect."
22. At the outset, it may be mentioned that the first and foremost question which comes up for determination is whether the applicant has any locus standi to move the application for revocation.
23. A perusal of Section 283 of Indian Succession Act, it is manifestly clear that it is necessary to cite parties who would otherwise had an interest in the succession to the estate of the deceased. That would naturally include all the heirs of the deceased. For determining whether a party is necessary or proper in the Probate proceedings it should be assumed that the testator had died intestate. A person applying for revocation of Probate or Letters of Administration must have an interest in the estate of the deceased, assuming that the deceased died intestate.
1124. In case titled as George Anthony Harris Vs. Millicent Spencer reported as AIR 1933 Bombay 370, it was held that a person applying for revocation for the grant must show that he has an interest in the alleged Will i.e. in the estate of the deceased disposed of by the alleged Will. There must be some interest and even the slightest interest is sufficient to apply for revocation.
25. In case titled as Dharam Devi & Ors. Vs. Bishamber Nath reported as ILR (1971) II Delhi 661, it was held that the appellants are not the legal heirs of the testator and had no interest in the property bequeathed under the will. It was held that the appellants had no locus standi to ask for the revocation of the probate.
26. In another case titled as Smt. Sima Rani Mohanty Vs. Pushpa Rani reported as AIR 1978 Calcutta 140, it was held that any interest, however, slight and even the bare possibility of an interest is sufficient to entitle a person to make an application for revocation.
27. The Division Bench of Hon'ble High Court of Calcutta in case Sadanand Pyne Vs. Harinam Sha and Anr. reported as AIR 1950 Calcutta 179 has observed that in order to have the locus standi to apply for revocation of the probate, a person must have an interest in the estate of the deceased presuming he had died intestate.
28. Our own Hon'ble High Court in case titled as R.N. Gupta & Ors. Vs. State reported as 1995 Rajdhani Law Reporter 474, 12 observed that application for revocation lies only if the applicant had a share in the estates of the deceased, if latter had died intestate.
29. A similar question cropped up in case titled as In Re: P.D. Rajan reported as AIR 1996 Madras 318. In the said case the applicant was neither the beneficiary nor the person having any right over the estate of the deceased. He only claimed to be neighbour of the testatrix and claimed that he was brought up by testatrix and her husband. It was held that there should be some relationship for the person who claims revocation. It must also be shown that such an application should have been filed by a person having some interest in the testator's estate at least in a slight manner. Bringing up a boy belonging to their native place, even if true, cannot confer any right to the boy in the estate of persons who have brought up the boy.
30. In the present case admittedly, the applicant is not the legal heir of testator Sh. Vasudev Sharma. The applicant was not related to the deceased, the applicant is not claiming to be blood relation of the deceased. The applicant is not a beneficiary in the will of the testator and he has no interest in the property of the deceased. Thus, the applicant has no locus standi to move the present application for letters of administration granted to the non applicant, as per law laid down in the aforesaid judgments.
31. Since, the applicant has no locus standi to move the present application for revocation, it is not necessary to discuss the grounds taken by the applicant. Issue no.1 is decided accordingly.
13ISSUE NO. 2:
32. In view of my findings on issue no. 1 that the applicant has no locus standi to move the present application, the letter of administration dated 12.01.04 is not liable to be revoked. Accordingly, issue no. 2 is decided in favour of non applicant and against the applicant.
ISSUE NO.3 (RELIEF)
33. In view of the foregoing discussion and my findings on issue No.2, the applicant has no locus standi to move the application under Section 263 of the Indian Succession Act for revocation of of Letters of Administration granted to the non applicant in PC No. 24/01. Accordingly, the application for revocation of letters of administration is dismissed. File be consigned to Record Room.
Announced in open Court (V.P. VAISH)
on this 18th August, 2009 DISTRICT JUDGE-II
(NORTH) DELHI