Delhi District Court
Kumari Latika & Ors. vs . State (Govt. Of Nct Delhi) & Ors. on 11 September, 2015
Kumari Latika & Ors. Vs. State (Govt. of NCT Delhi) & Ors.
In the Court of Additional District Judge02, South District, Room No. 602,
Sixth Floor, Saket Courts Complex, New Delhi
In the matter of :
PC No. 25/2013
Unique No.02406C0060982013
1. Kumari Latika, d/o Late Sanjeev Kumar,
R/o H.No. 393A, Chirag Delhi Village,
Malviya Nagar (PO), New Delhi110017.
2. Shri Rahul, s/o Late Sanjeev Kumar,
R/o H.No. 393A, Chirag Delhi Village,
Malviya Nagar (PO), New Delhi110017.
3. Master Shubham, being minor through
his natural guardian & next friend Smt. Sarita
s/o Late Sanjeev Kumar,
R/o H.No. 393A, Chirag Delhi Village,
Malviya Nagar (PO), New Delhi110017. ...Petitioners
Versus
1. State, Govt. of NCT Delhi through
Deputy Commissioner,
Department of Revenue (South)
M.B. Road, New Delhi110062.
2. Mrs. Sunita, w/o Sh. S.C. Gautam,
R/o C6/440, Yamuna Vihar, Delhi110053.
PC No. 25/13 Page 1 of 10
Kumari Latika & Ors. Vs. State (Govt. of NCT Delhi) & Ors.
3. Mrs. Savita, w/o Sh. Rajesh,
R/o H.No. 393A, Chirag Delhi Village,
Malviya Nagar (PO), New Delhi110017.
4. Mrs. Geeta, w/o Sh. Raj Kumar
R/o H.No. 393A, Chirag Delhi Village,
Malviya Nagar (PO), New Delhi110017. ...Respondents
Date of filing : 04.03.2013
Date of Institution : 05.03.2013
Decision reserved on : 02.09.2015
Date of Decision : 11.09.2015
JUDGMENT
(on petition for probate u/s 276 of Indian Succession Act, 1925)
1. (Status of parties) - Sh. Jeet Singh (hereinafter referred as deceased), who is grand father of petitioners 1, 2 & 3 and father of respondents 2, 3 & 4 died on 22.05.2012 (original death certificate has also been filed) and his wife Smt. Chand Kaur expired on 23.07.2003 (copy of death certificate has also been filed). Both of them have four children, a son namely Sanjeev Kumar (father of petitioners 1, 2 & 3 and husband of Smt. Sarita, later represents minor petitioner no. 3) and three daughters/ respondents 2 to 4 namely Mrs. Sunita, Mrs. Savita and Mrs. Geeta. However, Sanjeev Kumar died in road accident on 13.10.1999 (copy of death certificate has also been filed), who predeceased his parents Smt. Chand Kaur and Sh. Jeet Singh. PC No. 25/13 Page 2 of 10 Kumari Latika & Ors. Vs. State (Govt. of NCT Delhi) & Ors.
Petitioner no. 1, Kumari Latika is student of Delhi University carrying graduation course, petitioner no. 2, Mr. Rahul is also pursuing graduation from University of Delhi but the petitioner no. 3, minor Master Shubham, is a student of 10th class (being represented by his natural guardian/ mother Smt. Sarita). They have been living at H.No. 393A in the abadi lal dora, revenue estate of Chirag Delhi Village, New Delhi.
2. (Estate of deceased) - The deceased Jeet Singh was working as a teacher in State run public school and from his savings and earnings, he had purchased H.No. 393A in the abadi lal dora, revenue estate of Chirag Delhi Village, New Delhi (photocopy of registered sale deed dated 13.11.1969 has also been filed with the petition) and he remained its owner throughout his life. It is situated within the jurisdiction of present court. The value of property is around Rs. 7,00,000/ as per information of petitioners vis a vis being circle rates of MCD in the area.
3. Sh. Jeet Singh during his lifetime executed a registered Will dated 22.02.2000 (now EX. PW1/2) in respect of his estate whereby he appointed the petitioners as sole executors of the Will, therefore, the petitioners are entitled equally and jointly in the said estate of deceased.
That is why the present petition for probate of Will and no other similar petition or application was filed for grant of probate of Will or letters of PC No. 25/13 Page 3 of 10 Kumari Latika & Ors. Vs. State (Govt. of NCT Delhi) & Ors. administration of estate of deceased. There is also no legal impediment to grant of probate. The petition is accompanying a declaration (Annexure P5) to the petition by attesting witness Sh. Raj Kumar, s/o Dhuli Chand (now PW1).
4. The citation was directed to all the respondents inclusive of its publication in the Statesman and as appears the citation was served to the State through the area SubDivisional Magistrate as well as to other respondents but no one came forward from the general public to participate in the proceedings. Moreover, the respondents 2, 3 & 4 also appeared and gave their statement dated 15.04.2013 having no objection for grant of probate/ letters of administration. Thus, it became a noncontentious matter, the petitioners were given liberty to lead evidence.
5. (Evidence) - Petitioners got examined PW1 Sh. Raj Kumar, attesting witness to the Will (Ex. PW1/2) to prove the execution of Will besides petitioner no. 1/PW2, petitioner no. 2/PW4 & Smt. Sarita/ PW3 also entered into witness box, while filing compact affidavit narrating the fact orally in their respective affidavits and of Will of Sh. Jeet Singh vis a vis their respective proof of identity in their favour.
6.1 (Hearings) - At the juncture of final hearing, Ld. counsel Sh. Srinivas, Advocate made the submissions, which are reiterations of the record. PC No. 25/13 Page 4 of 10 Kumari Latika & Ors. Vs. State (Govt. of NCT Delhi) & Ors. According to petitioners, it is a simple case, no one has contested or challenged the testimony of witnesses; PW1 (Raj Kumar) has also proved the Will (Ex. PW1/2), therefore, the petitioners are entitled for probate of Will.
Ld. counsel is inquired about contents of Will that on pages 1, 2 & 3 of the Will, it has been specifically mentioned that Smt. Sarita, w/o Sh. Sanjeev Kumar, who is representing minor petitioner no. 3, was stated to be working beyond his control and at page no. 3 Smt. Sunita, w/o Sh. Satish Chander (respondent no. 2) was appointed that after the death of deceased, she will look after the affairs so that estate is inherited in favour of petitioners 1, 2 & 3 vis a vis general power of attorney was also executed in favour of Smt. Sunita so that she may look after, supervise and manage day to day affairs of the property. The petitioners have not been named as executors in the Will under consideration. Then, how the petition could be filed by the petitioners as well as by Smt. Sarita for petitioners no. 3.
Ld. counsel for petitioner has two fold submissions, firstly the petitioner no. 3 is minor and he could be represented through natural guardian/ next friend, Smt. Sarita is natural guardian/ mother of Master Shubham, reliance is placed on "Mandadi Narayanamma and Ors. vs. Unknown, AIR 1975 AP 267,", secondly, respondent no. 2, Mrs. Sunita is a party to the petition, she has given no objection to allow the petition. The petition is rightly filed by the PC No. 25/13 Page 5 of 10 Kumari Latika & Ors. Vs. State (Govt. of NCT Delhi) & Ors. petitioners and they are entitled for probate of Will.
6.2 At this stage, while considering the provisions of section 222, 229 of Indian Succession Act, 1925, a special citation was directed and issued to respondent no. 2/ Mrs. Sunita to appear and apprise her stand with regard to her willingness or otherwise. She appeared personally on 02.09.2015, she had brought her written submissions (now X1) and her statement was recorded, that she gives up executorship bestowed in her favour by testator Sh. Jeet Singh. Accordingly, she was relieved, while observing in the proceedings dated 02.09.2015 that now she will not be able to file petition as an executor in respect of Will of Sh. Jeet Singh.
6.3 Ld. counsel for petitioners requests that earlier respondent no. 3 had given her no objection to allow the petition and now she has given up her rights of executorship, pursuant to special citation issued by the court. 7.1 (Findings) - The contentions of petitioners are considered and assessed in the light of material on record and statutory provisions of law, particularly sections 63, 222, 229, 230 & 231 of Indian Succession Act, 1925, Section 6 of Guardians and Wards Act, 1890, section 68 of the Evidence Act, 1872.
7.2 So far minority of petitioner no. 3/ Master Shubham is concerned, he can be represented by natural guardian/ next friend and in terms of section 6 PC No. 25/13 Page 6 of 10 Kumari Latika & Ors. Vs. State (Govt. of NCT Delhi) & Ors. of Guardians and Wards Act, 1890, she is competent to represent Master Shubham.
7.3 PW1/ Sh. Raj Kumar, S/o Dhuli Chand is an attesting witness in the Will (Ex. PW1/2) and he deposed in his affidavit (P1) that Will was executed and registered in the office of SubRegistrar, not only he identified signature of testator Sh. Jeet Singh but also his own signature as an attesting witness. The testimony of PW1 satisfies requirement of section 63 of Indian Succession Act, 1925 as well as requirement of Section 68 of Indian Evidence Act. The Will has been proved by petitioners.
7.4 Whereas prime question was could the petitioners 1 & 2 or the petitioner no. 3 (through Smt. Sarita) could file the petition when there is named executor in the Will (Ex. PW1/2). So far these aspects are concerned, it needs to reproduce section 222, 229, 230 & 231 of the Indian Succession Act, 1925.
222. Probate only to appointed executor. (1) Probate shall be granted only to an executor appointed by the Will.
(2) The appointment may be expressed or by necessary implication.
Illustrations
(i) A Wills that C be his executor if B will not. B is appointed executor by implication.
(ii) A gives a legacy to B and several legacies to other persons among the rest to his daughterinlaw C, and adds "but should be withinnamed C be not living I do not constitute and appoint B my whole and sole executrix". C is appointed executrix by implication.
(iii) A appoints several persons executors of his will and codicils and his nephew residuary legatee, and in another codicil are these words, "I appoint my nephew my PC No. 25/13 Page 7 of 10 Kumari Latika & Ors. Vs. State (Govt. of NCT Delhi) & Ors. residuary legatee to discharge all lawful demands against my Will and codicils signed of different dates". The nephew is appointed an executor by implication.
229. Grant of administration where executor has not renounced. When a person appointed an executor has not renounced the executorship, letters of administration shall not be granted to any other person until a citation has been issued, calling upon the executor to accept or renounce his executorship.
Provided that, when one or more of several executors have proved a Will, the Court may, on the death of the survivor of those who have proved, grant letters of administration without citing those who have not proved.
230. Form and effect of renunciation of executorship. The renunciation may be made orally in the presence of the judge, or by a writing signed by the person renouncing, and when made shall preclude him from ever thereafter applying for probate of the Will appointing him executor.
231. Procedure where executor renounces or fails to accept within time limited. If an executor renounces or fails to accept an executorship within the time limited for the acceptance or refusal thereof, the Will may be proved and letters of administration, with a copy of the Will annexed, may be granted to the person who would be entitled to administration in case of intestacy. 7.5 It has already been held in paragraph 7.3 above, that petitioners have proved Will.
The petitioners no. 1, 2 & 3 have been named as beneficiaries/ legatees in the Will, out of them petitioners no. 1 & 2 are major but the petitioner no. 3 is minor being represented by his mother/ Smt. Sarita and there is no legal bar that minor can be represented by a natural guardian in terms of Section 6 of Guardians and Wards Act, 1890 read with personal law PC No. 25/13 Page 8 of 10 Kumari Latika & Ors. Vs. State (Govt. of NCT Delhi) & Ors. governing the parties. The testimony of all the witnesses remained unchallenged. The petitioners have also filed death certificate of Sh. Jeet Singh that he died on 22.05.2012, consequently on the eve of death of Sh. Jeet Singh, his desire in the form of Will is to be affected, but executor Smt. Sunita has abdicated and renounced her executorship. Consequently, the petition is maintainable by the present petitioners, being beneficiaries/ legatees.
7.6 Section 231 deals with the eventuality that when an executor renounces executorship or fails to accept or refuse it, the Will may be proved and letters of administration with copy of Will annexed may be granted to the person, who would be entitled to administration in case of intestacy. The present case is not an exception to it, since Smt. Sunita has renounced the executorship and petitioners being beneficiaries in the Will, consequently they are entitled to apply for probate of Will.
However, as per section 222 of the Indian Succession Act, 1925, probate may be granted to an appointed executor in the Will but in the present case executor Smt. Sunita has given it up. Therefore, in terms of section 231 of the Act, 1925, petitioners are held entitled for letters of administration with a copy of Will annexed.
8. In view of the above, it is held that petitioners has established the PC No. 25/13 Page 9 of 10 Kumari Latika & Ors. Vs. State (Govt. of NCT Delhi) & Ors. petition for letters of administration. Letters of administration with Will will be issued with copy of Will (Ex PW1/2) annexed on the prescribed form VII but it would be subject to - (i) filing of appropriate of stamp / Court fee, along valuation report of estate from the approved valuer; (ii) they will furnish Administration Bond, both of them could be filed within a period of one and half month from today; visavis subsequently, (iii) they will furnish full and true inventory of the said property and credits and exhibit the same in the Court within six months from the date of grant of Certificate on prescribed Form No. 178 and; (iv) to render true account of said property and credits within one year on prescribed Form No. 179.
Whereas, grant of letters of administration with a copy of Will would not tantamount to be any declaration with regard to ownership or title of estate of deceased. The original Will Ex. PW1/2 will remain and preserved with file in terms of section 294 of the Indian Succession Act, 1925.
Accordingly, the petition stands disposed off.
File be consigned to record room.
Announced in the open Court today (Inder Jeet Singh )
on Friday, 20 Bhadra, Saka 1937 Additional District Judge02 (South),
Saket, New Delhi /11.09.2015
PC No. 25/13 Page 10 of 10
Kumari Latika & Ors. Vs. State (Govt. of NCT Delhi) & Ors.
PC No. 25/13
11.09.2015
Present : Proxy counsel for petitioner
None for State/ general public/ respondent no. 1.
None for respondent no. 2, 3 & 4.
Vide separate judgment announced today, the petition for Letters of Administration is allowed in respect of estate of deceased. Letters of administration with Will will be issued with copy of Will (Ex PW1/2) annexed on the prescribed form VII but it would be subject to - (i) filing of appropriate of stamp / Court fee, along valuation report of estate from the approved valuer; (ii) they will furnish Administration Bond, both of them could be filed within a period of one and half month from today; visavis subsequently, (iii) they will furnish full and true inventory of the said property and credits and exhibit the same in the Court within six months from the date of grant of Certificate on prescribed Form No. 178 and; (iv) to render true account of said property and credits within one year on prescribed Form No. 179.
Whereas, grant of letters of administration with a copy of Will would not tantamount to be any declaration with regard to ownership or title of estate of deceased. The original Will Ex. PW1/2 will remain and preserved with file in terms of section 294 of the Indian Succession Act, 1925. PC No. 25/13 Page 11 of 10 Kumari Latika & Ors. Vs. State (Govt. of NCT Delhi) & Ors.
In the meantime, Junior Judicial Assistant/ Reader attached to the court will also compute the court fee payable.
Accordingly, the petition stands disposed off.
File be consigned to record room.
(Inder Jeet Singh)
ADJ02 (South), Saket
M New Delhi/ 11.09.2015
PC No. 25/13 Page 12 of 10