Delhi District Court
Dr. Balram K. Mahendra vs State on 28 July, 2011
In the Court of Sh. Bhupesh Kumar, Addl. District Judge-02
(WEST), DELHI
Probate case No. 63/10
In the matter of :-
Dr. Balram K. Mahendra
S/o late Sh. Ram Partap,
R/o C-14, Chirag Enclave,
New Delhi - 110048.
....Petitioner
Vs.
1. State
2. Sh. Vijay K. Mahendra,
S/o late Sh. Ram Partap,
R/o A-80, East of Kailash,
New Delhi-65.
3. Sh. Jitender K. Mahendra,
S/o late Sh. Ram Partap,
R/o C-2/404, Capital Apartment,
Vasundhara Enclave, New Delhi.
4. Sh. Surinder K. Mahendra
S/o late Sh. Ram Partap,
R/o 505, Mandakini Enclave,
Kalkaji, New Delhi.
5. Mrs. Kamini Mahendra,
W/o Ajay K. Mahendra
S/o late Sh. Ram Partap,
PC No. 63/10 Page no.1 of 16
R/o C-61, Pocket A, DDA,
SFS, Sukhdev Vihar,
New Delhi-110025.
....Respondents
Date of institution : 10.01.2003
Date of arguments : 26.07.2011
Date of Judgment : 28.07.2011
(Petition U/s 276 of Indian Succession Act)
JUDGMENT
1. The present probate petition was filed by the petitioner for grant of succession certificate and Letter of Administration in respect of debt, securities and properties of late Sh. Ram Partap father of the petitioner and respondent no. 2 to 5. Sh. Ram Partap expired on 13.7.1987. The petitioner founded two companies under the name and style of M/s Meconico in July, 1949 and M/s Meconico Manufacturing Engineering Company in the year 1950. The petitioner became proprietor of M/s Meconico on 31.10.1968 and his father became sole proprietor of M/s Meconico Manufacturing Engineering Company on 31.10.68. The commissioner of Industries has allotted the shed bearing no. 15, Okhla Industrial Estate, New Delhi which is in possession of petitioner since inception. Sh. Ram Pratap died intestate leaving behind movable and immovable properties viz. property no. 15, Okhla Industrial Estate, 493 shares in Machinery Manufacturing Co. ltd.; jewellery worth Rs. One PC No. 63/10 Page no.2 of 16 lac; capital in trust Rs. of 25,000/-; cash in locker in Punjab National Bank, of Rs. 82,126/-; balance in account no. SB6294 and 5650 in Punjab National Bank, Chirag Delhi, Rs.54,857.90; 52000 units of UTI @ Rs. 13.75 and cash in State Bank of India 7676/-. On the basis of these submissions prayer was made to allow the petition.
2. The notice of the petition was sent to the State and respondents.
Citation for general public was also made in daily newspaper 'Dainik Jagran' and copy of citation was also displayed on notice board of the Court. Respondent no. 4 & 5 did not contest the suit despite their service.
3. The petition has been contested by respondent no. 2 and 3 and filed objections to the petition taking preliminary objections that the petition is time barred as the deceased died on 13.7.1987 whereas the petition filed on 7.1.03. Moreover, the petitioner himself has admitted in the petition that deceased during his lifetime has transferred the properties in favor of others. Therefore, the said properties cannot form the part of the estate of the deceased. The deceased has left last will and as per will the deceased has not bequeathed any property in favor of the petitioner. Further, the petitioner has not given any particulars and details of the debt and securities and as such no relief can be granted. All the heirs of late Ajay K. Mahendra has not been impleaded as party in the present petition, therefore, the petition is bad for non joinder of PC No. 63/10 Page no.3 of 16 necessary parties.
On merits, it was submitted that deceased was father-in-law of respondent no. 5 and not the father. It was further submitted that apart from petitioner and respondent no. 2 to 5 there are two sons including one step son left by late Sh. Ajay K. Mahendra. Sh. Gaurav Mahendra is the real son of late Sh. Ajay K. Mahendra. Hence, two sons of late Sh. Ajay K. Mahendra are also LRs of deceased but the petitioner intentionally or deliberately knowing this fact has not impleaded as sons of Sh. Ajay K. Mahendra as party to the present petition. It was denied that the company M/s Meconico was founded in 1949 and M/s Meconico Manufacturing Engineering Company was founded in 1950. No details or document even filed alongwith the petition. It was further submitted that M/s Meconico was partnership firm from 27.2.1950 to 31.10.1968. There is no company by the name of M/s Meconico Manufacturing Engineering Company and is also evident from the copy of documents filed by the petitioner himself. Moreover, both these companies have nothing to do with each other. The deceased was one of the partner of M/s Meconico Manufacturing Engineering Company. As per partnership deed the share of the deceased in the firm went to and given to the remaining partners and thus the petitioner is not entitled to the same or any part thereof even after the death of the deceased. It has not been disputed that the shed no. 15, Okhla Industrial Area was alloted to Shri Ram Pratap. However, later on Commissioner of Industries allowed Sh. Ram Partap to introduce PC No. 63/10 Page no.4 of 16 partner and accordingly the said shed became and treated as firm's property and not the personal or individual property of Sh. Ram Pratap. Hence, on the date of death it was a firm's property. The petitioner was not partner of the said firm and accordingly he is not entitled to claim anything on the basis of said partnership also. It has been denied that the petitioner was in occupation of said shed. It was denied that the petitioner paid any consideration to Commissioner of Industries at any stretch of time as there was no occasion for the petitioner to pay any consideration. The petitioner has filed a civil suit bearing no. 508/98 against the NCT in respect of said shed which is still pending. The Commissioner of Industries confirmed that the shed was allotted to late Sh. Ram Pratap who entered into partnership of the firm. It was denied that the that the deceased has not left any will. It was further submitted that the deceased left will dt. 28.5.1984 which is in hand writing of the deceased and attested by two witnesses. It was denied that the petitioner is entitled to any succession certificate. Regarding 493 shares, it was submitted that the deceased during his lifetime has transferred the said shares. The existence of any jewellery and cash of Rs. One lac denied for want of knowledge. It was also denied that the petitioner is entitled to share of Rs. 25,000/- lying as capital in trust. On account of trust it was submitted that the deceased created a trust on 4.6.86 with a sum of Rs. 5000/- and the said amount was given to trustees. Now the trust is the owner of said sum and donation, if any, received by the trust. The said trust with its trustees is a separate entity PC No. 63/10 Page no.5 of 16 and the fund of the trust cannot be called as estate of the deceased. The said trust has not been made party to the present petition.
Regarding the amount of Rs. 82,126/- lying with Punjab National Bank it was submitted that the petitioner has not furnished any number of the bank locker. It was denied that the petitioner is entitled to sum of Rs. 54,857.90 lying in account of deceased with Punjab National Bank. It was denied that the any amount was lying in the account of the deceased in account no. 5650 on the ground that it has been already closed on 2.1.87 when credit balance was Rs. 989/-. The other account bearing no. 480 was also stated to be closed by the deceased during his life time.
The valuation of UTI (CGS 1983 given by the petitioner was also not correct. It may be mentioned that against certificate no. CGS 85 0401603 for 16200 units the nominations were made in favor of (1) Sh. Balram Mahendra (5400 units), (2) Sh. Surendera K. Mahendra (5400 units), and (3) Sh. Ajay K. Mahendra (5400 units). For 4200 units held under certificate no. 0401602 and 5400 units held under certificate no. 0401600, Mrs. Abha Mahendra was the nominee. For 12600 units held under certificate no. 0401601 the deceased has nominated (1) Sh. Balram Mahendra for 4200 units, (2) Sh. Surenda K. Mahendra for 4200 units and (3) Sh. Ajay k. Mahendra for 4200 units. For 9600 units held under certificate no. 0401599 the deceased had nominated (1) Mrs. N. Mahendra for 4200 units, (2) Miss Gauri Mahendra for 2700 units and (3) Mr. Anand Mahendra for 2700 units. The answering PC No. 63/10 Page no.6 of 16 respondents are not aware about the units if any allegedly held by the deceased under certificate no. 850401601 CD 168664 dt. 9.7.87; 850401603 CD 168681 dt. 9.7.87, CS 850481601 Ser. No. 23356 dt. 8.7.86; CGS 04 18606 Ser No. CW 23358 dt. 8.7.1986, CGS 04 1801 C 626087 dt. 9.7.85 and CGS 85 04 1603 CD 26089 dt. 9.7. 1985. Inter alia, on the basis of these submissions prayer was made to dismiss the petition.
4. Reply to the objections of respondent no. 2 and 3 was also filed by the petitioner wherein the averments made in the objections were generally denied and those made in the petition were reaffirmed and reiterated.
5. After completion of pleadings of parties following issues were framed by my ld. Predecessor on 16.12. 05 :-
1. Whether late Sh. Ram Partap died intestate as claimed by the petitioner? OPP
2. Whether the petitioner is entitled for grant of Letter of Administration in respect of estate of deceased Ram Partap?
OPP
3. Whether the petition is barred by the time as claimed by the objectors? OPR
4. Whether the petition is liable to be dismissed for the objections raised by the objectors/respondents? OPR PC No. 63/10 Page no.7 of 16
5. Relief.
6. The petitioner appeared in witness box as PW1 who deposed in his examination lead by way of affidavit generally on the lines of his petition. PE was closed.
7. Respondent no. 2 Vijay K. Mahendra appeared himself in witness box as RW1 who deposed on the similar lines of his reply/objections filed.
8. RW-2 is Inspector Vijender Kumar Mishra from the office of Commissioner of Industries. He brought the record pertaining to shed no. 15, Okhla Industrial Estate, Phase III, New Delhi and proved the agreement for lease as Ex. PW1/R-5, letter dt. 14.5.1957 Ex. RW1/1, another letter i.e. part of Ex. PW1/R5 as Ex. RW2/1. The witness further submitted that Ex. RW1/3 was issued from their office. Letter dt. 8.1.85 of Mechnico Manufacturing Engineers as Ex. RW2/2. The witness also submitted to the effect that as per their record the property was leased to Mechnico Manufacturing Engineers with Mr. Ram Partap. He also brought photocopy of partnership deed dt. 3.5.1979. The copy of the same was Ex. RW1/2. Supplementary partnership deed dt. 3.10.1983 proved as RW1/5. Copy of partnership deed dt. 25.10.88 was Ex. RW1/7. The witness was cross examined at length.
PC No. 63/10 Page no.8 of 16
9. RW3 is Sh. Rajiv Kamal. He deposed to the effect that he is residing at Swami Nagar since 1978. He knew Ram partap who was residing opposite to his house. Sh. Ram Partap executed a will in his presence and the 'Will' was brought on record as mark K. The witness further submitted to the effect that the 'Will' bears his signature at point Z at two places and that the another attesting witness Dr. Sood signed at points Y. Sh. Ram Partap has signed the will in his presence as well as in presence of Dr. Sood at point X. Sh. Ram Partap was in sound and disposing mind at the time of execution of will Ex. RW3/1.
10. I have heard the arguments of ld. Counsel for both parties besides going through the material available on record.
11. My issue wise findings are as under : -
The issue no. 1 and 3 are taken up together being intermingled. ISSUE NO. 1 : Whether late Sh. Ram Partap died intestate as claimed by the petitioner? OPP ISSUE NO. 3 : Whether the petition is barred by the time as claimed by the objectors? OPR In order to substantiate its claim the petitioner appeared in witness box as PW1 and deposed to the effect that his father late Sh. Ram Partap died intestate.
On the other hand, the respondents claimed that late Sh. Ram Partap their father has left a will dt. 28.5.1984. The will has been PC No. 63/10 Page no.9 of 16 brought on record as Ex. RW3/1 during the evidence of RW3 Sh. Rajiv Kamal stated to be attesting witness of the Will. Respondent no. 2 was examined as RW1 who also deposed to the effect that his father has executed will dt. 28.5.1984. It was submitted that once the will Ex. RW3/1 executed by deceased brought on record, the plea of the plaintiff stands falsify that the deceased died intestate. Further, Ld. Counsel for respondent has relied upon judgments in case Krishan Kumar Sharma vs. Rajesh Kumar Sharma, IV 2009 SLT 72 and in case Yogesh Duggal & ors. vs. State, 179 (2011) DLT 557 and submitted to the effect that in view of findings of the said judgments though no period of limitation has been prescribed in the Limitation Act to apply for probate or letter of administration but such matters cover under the provisions of the article 137 of Limitation Act.
12. Heard. Material perused. In case Krishan Kumar Sharma vs. Rajesh Kumar Sharma, (2009) 11 SCC 537, Hon'ble Supreme Court has relied upon judgment in case Kerala SEB vs. T.P. Kunhaliuna, (1976) 4 SCC 634, wherein, Hon'ble Supreme court, inter alia held to the effect that any application to the civil court is covered by article
137. In the same judgment reliance was also made in case S.S. Rathore vs. State of M.P., 1990 SCC (L&S) 50 wherein Hon'ble Supreme Court held that article 137 is applicable to the petition for grant of letters of administration.
PC No. 63/10 Page no.10 of 16 In case Yogesh Duggal and ors. vs. State & ors, 179 (2001) DLT 557 Hon'ble High Court has inter alia, hold as under :-
Though it is rightly been stated that an application is for the Court's permission to perform a legal duty created by a Will and is a continuous right which can be exercised as long as it survives. It is also true that the application can be filed beyond the period of 3 years but such delay must be clearly explained. In the instant case, the appellants had filed the probate petition after 9 years but had nowhere explained the reason behind such a huge delay even though opportunity was granted to the appellants.
In the light of said judgments it is found that even though no period of limitation has been prescribed to apply for probate or letter of administration but the same are covered under the article 137 of Limitation Act. As per Article 137 of Limitation Act, the period of limitation to file any application is three years from the day when the right to apply accrued. The right to file probate petition or letter of administration from the date of death of the testator etc. but the delay if any may be condoned provided the delay is properly explained or justified.
Coming to the present case as per record Sh. Ram Partap predecessor of interest to parties expired on 13.7.1987, whereas the petition seeking letter of administration has been filed on 10.1.2003. On the other hand, the respondents rely upon the will Ex. RW3/1 dt. 28.5.84 and the objections were filed on 13.5.05. It clearly transpires that the petition seeking letter of administration as well as the claim of PC No. 63/10 Page no.11 of 16 the respondent no.2 and 3 on the basis of will Ex RW3/1 are found to be time barred. Once it is found that the claim on the basis of will Ex.
RW3/1 is time barred and no reliance can be made on the will Ex. RW3/1, hence, the Court has no hitch to reach at conclusion that the deceased Sh. Ram Partap died intestate. Both these issues stand decided accordingly.
13. ISSUE NO. 2 : Whether the petitioner is entitled for grant of Letter of Administration in respect of estate of deceased Ram Partap? OPP The onus to prove this issue was on the petitioner. Even though the claim of the petitioner is found to be time barred as held earlier but the petition is also looked into on merits. The petitioner has placed its claim over the movable and immovable assets of deceased Ram Partap by way of inheritence. The claim of the petitioner are taken up and considered one by one.
a) The petitioner claimed letter of administration qua the Shed bearing no. 15, Okhla Industrial Area, New Delhi stated to be belonging to the deceased. But on this score the petitioner has not placed on record even a single document showing the ownership of late Sh. Ram Partap over the said property. Therefore, in the absence of any such document there is no question of granting any such relief to the petitioner.
b) Jewellery worth Rs. One lac. On this score also the petitionr has PC No. 63/10 Page no.12 of 16 not lead any documentary or oral evidence that qua the weight of the jewelery and its possession. Moreover the petitioner himself has claimed the other parties to the legal heirs of the deceased but has not uttered even a single word qua his proportionate entitlement over the jewelery. The claim of the petitioner is evasive and vague.
c) Capital interest of Rs. 25,000/-. On this score the plaintiff has relied upon trust deed Ex. PW1/4, details of donations made by the deceased Ex. PW1/5 & 7. Receipts of donations collectively Ex. PW1/6. The exemption taken from income tax department is Ex. PW1/8. Ex. PW1/4 i.e. trust deed is photocopy and cannot be termed to be proved. But in the interest of justice and for just decision of the matter the same is perused. The clause 35 of the deed reveals that the said trust was created purely for charitable purpose and was not inheritable. As per Ex. PW1/5 & 7 deceased Ram Partap has donated certain money to religious place. Here the court failed to understand that when the father has given something in charity for religious purpose then how his son i.e. petitioner can ask for return of charity/donation. The Shorter's dictionary meaning of donation is 'transfer of ownership as free gift'. Once the deceased has made donations of certain amounts it means he had already made the transfer of ownership of said amount and the LRs of deceased cannot be permitted to lay hand on the said donations.
d) Cash in locker in Punjab National Bank, Greater kailash to the tune of Rs. 82,126/-. But the petitioner has not brought on record any PC No. 63/10 Page no.13 of 16 details of the locker viz. locker number or key number etc. Neither the petitioner has called any report from the said bank regading the existence of any locker in the name of deceased. Moreover, there is nothing on record that any such locker was opened with the permission of the Court or otherwise. Neither there is any material on record which suggest the source of information of the petitioner on the basis of which the petitioner has claimed that a sum of Rs. 82,126/- were in lying at the said bank. This claim is also found to be vague without any merits and is discarded accordingly.
e) Cash in locker in Punjab National Bank, Chirag Delhi to the tune of Rs. 54,857.90. On this score the petitioner has relied upon passbook of the deceased Ex. PW1/10. Being photocopy no reliance can be made on the passbook. Moreover, no report from the bank has been called qua the existence of any account in the name of the deceased or in regard to balance, if any. Therefore, due to lack of evidence this claim of the petitioner is also liable to be brush aside.
f) Units of Unit Trust of India. The petitioner has brought on record certain units collectively Ex. PW1/9. But again the same are photocopies. The petitioner has not bothered to call any witness from UTI to substantiate the fact that the said units existed in the name of the deceased or the fact that the same were still in existence and were not transferred to somebody else. due to lack of evidence this claim is also discarded.
g) Cash in State Bank of India. This claim also stands on
PC No. 63/10 Page no.14 of 16
the same footing to that of the claim of the petitioner already disallowed in para (d).
h) 493 shares in Machinery Manufacturing Company Ltd. The petitioner has not filed any documentary proof showing the existence of said shares in the name of the deceased nor has called any record or any witness from Machinery Mfg. Co. Ltd. Some shares transfer form has been brought by the petitioner as Ex. PW1/2 and 3. PW1/2 reveals that on 22.10.86 the deceased Ram Partap has transferred the shares to Ms. Charu Mahendra and Ex. PW1/3 reveals that on the same day the deceased has transferred certain shares in the name of Mrs. N. Mahendra. When the said shares have already been transferred during the lift time of deceased then there is no question of granting letter of administration to the petitioner on this score. Moreover, Ex. PW1/2 and 2 are in regard to Machinery Manufactureres Corporation Ltd. whereas the petitioner has claimed the share by the name of Machinery Manufacturing Co. Ltd.
The aforesaid discussion leads to conclusion that the petitioner has miserably failed to release the burden of this issue. The same stands decided against the petitioner.
14. ISSUE NO. 4 : Whether the petition is liable to be dismissed for the objections raised by the objector / respondents? OPR On this score it is found that the respondents have raised number of objections including the objections of limitation. The said issues have PC No. 63/10 Page no.15 of 16 already been decided in favor of the respondents. For the other objections, ld. counsel for petitioner has not advanced any arguments. But considering the fact that on important aspect of limitation the case of the petitioner has already been damaged. Therefore, there is no requirement to discuss the other pleas. The issue stands decided accordingly.
15. RELIEF :
In view of the aforesaid discussions, the petition of the petitioner stands dismissed. No order as to cost. File be consigned to record room.
(Bhupesh Kumar) Addl. District Judge-02/ West District/Delhi 28.07.2011 (Announced in open court) PC No. 63/10 Page no.16 of 16