Delhi District Court
Shri Rishi Kumar vs State on 30 October, 2019
IN THE COURT OF SH. LAXMI KANT GAUR, ADDITIONAL
DISTRICT JUDGE, CENTRAL, TIS HAZARI COURTS, DELHI
PC No.13 of 2018
Shri Rishi Kumar
S/o late Sh. Madho Ram,
R/o H.No.1281, Gali Ganesh Wali,
Shora Kothi, Subzi Mandi, Delhi110007. .......Petitioner
Versus
1. State
2. Smt. Janki Devi
W/o Sh. Yogender Pal,
D/o Late Sh. Madho Ram,
3. Smt. Radha
W/o Shri Jai Krishan,
S/o Late Sh. Madho Ram.
4. Sh. Anand Kumar
S/o late Sh. Madho Ram.
5. Smt. Babli,
W/o late sh. Shiv Kumar,
D/o late Sh. Madho Ram.
6. Sh. Rakesh,
S/o late Sh. Madho Ram,
all respondent Nos.2 to 6 are resident of
1421, Gali Ganesh Wali, Shora Kothi,
Subzi Mandi, Delhi110007.
PC No.13/18 Rishi Kumar vs. State & ors. page 1 of 19
7. UCO Bank,
Branch Dhauli Piau,
Mathura, Uttar Pradesh. ......Respondents
Date of filing of the suit : 16.02.2018
Date of reserving judgment : 07.08.2019
Date of judgment : 30.10.2019
Petition for grant of probate under section 276 of Hindu Succession Act,
1925
Judgment
1. By this judgment, I propose to decide the petition filed under Section
276 of the Hindu Succession Act for the grant of probate (read Letters
of Administration with Will annexed filed under section 278 of Indian
Succession Act) in respect of the Will dated 08.01.2013 executed by
late Smt. Ratna Devi wife of late Sh. Surender Kumar.
Facts
2. According to the petition filed, late Smt. Ratna Devi wife of late Sh. Surender Kumar had executed a Will dated 08.01.2013 which was registered with the Sub RegistrarI, Kashmere Gate, Delhi on 24.06.2013, whereby she had bequeathed all her movable and PC No.13/18 Rishi Kumar vs. State & ors. page 2 of 19 immovable properties, all the bank accounts, Fixed Deposit Receipts and other assets in favour of her real brothers namely Sh. Rishi Kumar, Sh. Anand, Sh. Rakesh, Sh. Shiv Kumar, Sh. Jai Krishan and her two real sisters namely Smt. Indra and Smt. Janki.
3. Deceased testatrix Smt. Ratna Devi stated to have died on 27.03.2013 within the jurisdiction of this court. At the time of her death, her fixed place of residence was 1421, Ganesh Gali, Shora Kothi, Ghanta Ghar, Subzi Mandi, Delhi110007.
4. It is stated that Smt. Indra, one of the beneficiaries in the Will in question had died on 21.03.2004 and her husband also died on 07.01.1990. Further, Sh. Shiv Kumar, another beneficiary in the Will in question had also died on 24.10.2015 leaving behind his legal heir i.e. his wife Smt. Babli. Sh. Jai Krishan another beneficiary in the Will in question also expired on 22.06.2017, leaving behind his legal heir i.e. wife Smt. Radha.
5. It is also stated in the petition that the original Will was in the possession of the petitioner since its execution but when he was going to take photocopy of the said Will, he lost it and in this regard he had PC No.13/18 Rishi Kumar vs. State & ors. page 3 of 19 lodged a Non Cognizable Report vide LRNo.236755/2018 dated 18.01.2018. Petitioner has filed on record certified copy of the said Will.
6. It is stated that petitioner along with other legal heirs of the deceased Smt. Ratna Devi had already disposed off the immovable property as mentioned in the Will in question i.e. property no.D31, Chandra Puri, Viranjan Pur, Distt. Mathura, Uttar Pradesh, hence, the petitioner does not seek Probate/Letters of Administration in respect of the said immovable property.
7. The petitioner is seeking grant of Probate/Letters of Administration of the Will dated 08.01.2013 executed by Smt. Ratna Devi in respect of following: (A)Saving bank account bearing no.174401100000359, UCO Bank, Dhauli Piau Branch, Mathura, Uttar Pradesh in the name of deceased Smt. Ratna Devi, having total remaining balance of Rs.28,076/ as on 08.01.2018.
(B)Fixed Deposit Receipt under Kuber Yojna Deposit scheme vide receipt no.17440310017692 dated 16.03.2012 amounting Rs.1,64,766/ PC No.13/18 Rishi Kumar vs. State & ors. page 4 of 19 and having balance amount of Rs.2,50,000/ approximately upto 01.02.2018, deposited in UCO Bank, Dhauli Piau Branch, Mathura, Uttar Pradesh in the name of deceased Smt. Ratna Devi. (C)Fixed Deposit Receipt under Kuber Yojna Deposit scheme vide receipt no.17440310002063 dated 26.03.2010 amounting Rs.4,26,641/ and having balance amount of Rs.7,50,000/ approximately upto 01.02.2018, deposited in UCO Bank, Dhauli Piau Branch, Mathura, Uttar Pradesh in the name of deceased Smt. Ratna Devi. Publication U/s. 283 of the Indian Succession Act and Service on Respondent
8. After the petition had been filed there was a direction given for publication of citation in English Daily "Indian Express" and Hindi Daily "Veer Arjun", calling upon all persons claiming to have any interest in the estate of Late Smt. Ratna Devi Lal and to come and see proceedings. The citation was also directed to be displayed at the notice board of the Court and also at the office of District Collector/ SDM.
9. Notice was also directed to be sent to the respondents in this case. They had been served with the process of the Court and appeared in the court.
PC No.13/18 Rishi Kumar vs. State & ors. page 5 of 19 No Objection by the Respondents to the Grant of Letters of Administration in favour of the Petitioner
10.All the respondents in this case, namely Smt. Janki Devi W/o Sh. Yogender Pal, Smt. Radha W/o Shri Jai Krishan, Sh. Anand Kumar S/o late Sh. Madho Ram, Smt. Babli W/o late Sh. Shiv Kumar, Sh. Rakesh S/o late Sh. Madho Ram had appeared in the court and their statements had been recorded in the Court. All of them have deposed that they have no objection to the probate/Letters of Administration being granted in favour of the petitioner for the execution of the Will executed by late Smt. Ratna Devi.
11.In the meantime, there was an application filed on behalf of the petitioner under Order 1 Rule 10 CPC to implead concerned branch of UCO Bank as respondent. Accordingly, vide order dated 01.08.2018, concerned branch of UCO Bank was permitted to be impleaded as respondent no.17 in the present case.
12.Respondent no.7 UCO Bank had filed objection to the petition, stating therein that this court lacked territorial jurisdiction to grant Letters of Administration as concerned branch of UCO Bank is located at Mathura, Uttar Pradesh.
PC No.13/18 Rishi Kumar vs. State & ors. page 6 of 19
13.Petitioner had filed reply to the objection of respondent no.7 UCO Bank, stating interalia that since at the time of death of testatrix her last place of abode was at Delhi110007. This court was of the view that in terms of section 270 of Indian Succession Act, this court has the jurisdiction to entertain and decide the present petition. Evidence
14.Petitioner had examined PW1 Sh. Parveen Kr Rana, Sr. Assistant with the office of Sub RegistrarI, Kashmere Gate, Delhi. He had brought relevant record relating to execution of Will in question Ex.PW1/1.
15.Petitioner had also entered into witness box as PW2. He had filed his affidavit in evidence. The affidavit in evidence was drawn on the lines of the petition filed in this case. In his affidavit he had referred to certified copy of the Will as Ex.PW1/1 and death certificate of his sister Smt. Ratna Devi as Ex.PW2/1. He also referred to death certificates of legal heirs of Smt. Ratna Devi namely Smt. Indra, Sh. Shiv Kumar and Sh. Jai Kishan as E.PW2/2 to Ex.PW2/4 respectively. GPA executed by his other brothers and sisters in his favour as Ex.PW2/5. Copy of the FIR which had been lodged with regard to said Will having been lost PC No.13/18 Rishi Kumar vs. State & ors. page 7 of 19 was exhibited as Ex.PW2/6. Passbook of his sister of her account in UCO Bank, Mathura and Fixed Deposit Receipts in her favour were exhibited as Ex.PW2/7 to Ex.PW2/9 respectively. He had also filed certificate under section 65B of Indian Evidence Act Ex.PW2/10 of his counsel Sh. Devanand in respect of the print out of NCR Ex.PW2/6 regarding Will in question Ex.PW1/1 being lost.
16.Petitioner also examined one of the attesting witnesses namely Sh. Yogender Pal as PW3. He had deposed that he had signed the Will in question Ex.PW1/1 along with another witness Sh. Hari Ram in the presence of Smt. Ratna Devi and that she had also signed her Will in their presence. He had identified his signatures on the Will at point A1 and that of Smt. Ratna Devi at point B1.
Proving the Will
17.Before proceeding further, one may take note of Section 63 of Indian Succession Act and Section 68 of the Indian Evidence Act. The two Sections read as under:
Section 63 of the Indian Succession Act:
63 Execution of unprivileged Wills. --Every testator, not being a soldier employed in an PC No.13/18 Rishi Kumar vs. State & ors. page 8 of 19 expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. (Emphasis supplied) Section 68 of the Indian Evidence Act :
68. Proof of execution of document required by law to be attested.--
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: 1[ Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, PC No.13/18 Rishi Kumar vs. State & ors. page 9 of 19 which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]
18.Combined reading of the two Sections would show, for a Will to be executed it should be attested by two witnesses in the manner provided for in Section 63(c) of the Indian Succession Act. To prove the Will, however, examination of both attesting witnesses is not required, only one of the attesting witness may appear in court and depose as to the Will being executed in the manner prescribed under section 63 of the Indian Succession Act.
19.Testimony of one of the attesting witnesses i.e. PW3 Sh. Yogender Pal was recorded in the Court. Like it has been stated before, he had identified his signature on the Will Ex.PW1/1 at point A1 and that of deceased testatrix Smt. Ratna Devi at point B1. He had further deposed that the Will was signed by him as a witness along with another witness Sh. Hari Ram in the presence of late Smt. Ratna Devi and she had also signed her Will in their presence.
PC No.13/18 Rishi Kumar vs. State & ors. page 10 of 19
20.In respect of original Will, the stand of the petitioner is that the same has been lost. To prove the registration of the Will in question, the petitioner had examined PW1 from the office of Sub RegistrarI, Kashmere Gate, Delhi who had brought the summoned record relating to execution of the Will in question and proved registration of Will Ex.PW1/1.
21.After reading the testimony of attesting witness PW3 Sh. Yogender Pal and PW1 Sh. Parveen Kr Rana from the office of Sub RegistrarI Kashmere Gate, Delhi, there is no doubt that the testatrix late Smt. Ratna Devi had executed the Will Ex.PW1/1. She had signed the Will in the presence of the attesting witnesses and the attesting witnesses had signed the Will in her presence.
22.According to Section 238 of the Indian Succession Act, it is possible to grant probate even in the case of a Will being lost, provided its contents could be established by evidence. This case stands on a much better footing, as although, the original Will is not available, but, a certified copy thereof has been filed on record. It may be understood that this Will was registered in Book III as is required under Rule 18 of The PC No.13/18 Rishi Kumar vs. State & ors. page 11 of 19 Delhi Registration Rules, 19761 and section 51 of the Indian Registration Act2. When it comes to inspection of a document like Sale Deed, which is registered in Book No.1, it can be inspected by any one at any time and copies given but in the case of Wills which are registered in Book No.3 there is a slight difference. According to Section 57(1)3 of the Registration Act and Rule 134 of Delhi 1
18. Book No. III. Book III is not open to public inspection, nor are its indices, but copies of wills and authorities to adopt pasted in it shall, on payment of the prescribed fees, be given to the persons executing the documents to which such copies relate, or to their agents, and after the death of the executants (but not before) to any person applying for such copies. The necessary search to locate the document shall be made by the Registering Officer in person. When a Will entered in this Book affects immoveable property situated in District or Districts other than that where the entry has been made, no copy will to be sent to the registering officers of those Districts or SubDistricts. This register shall contain the same heading as Book I. 2
51. Registerbooks to be kept in the several offices.--(1) The following books shall be kept in the several offices hereinafter named, namely:-- A--In all registration offices-- Book 1, "Register of nontestamentary documents relating to immovable property".
Book 2, "Record of reasons for refusal to register". Book 3, "Register of wills and authorities to adopt", and Book 4, "Miscellaneous Register".
B--In the offices of Registrars--
Book 5, "Register of deposits of wills".
(2) In Book 1 shall be entered or filed all documents or memoranda registered under sections 17, 18 and 89 which relate to immovable property, and are not wills.
(3) In Book 4 shall be entered all documents registered under clauses (d) and (f) of section 18 which do not relate to immovable property.
(4) Nothing in this section shall be deemed to require more than one set of books where the office of the Registrar has been amalgamated with the office of a SubRegistrar. 3 Section 57. Registering officers to allow inspection of certain books and indexes, and to give certified copies of entries.
--(1) Subject to the previous payment of the fees payable in that behalf, the Books Nos. 1 and 2 and the Indexes relating to Book No. 1 shall be at all time open to inspection by any person applying to inspect the same; and, subject to the provisions of section 62, copies or entries in such books shall be given to all persons applying for such copies. 4
13. Book No. I or Additional Book No. I. Book I or Additional Book I and the Indices relating to it shall be opened to public inspection and copies of the documents entered/pasted in them shall be given to all person on payment of the prescribed fees. In Additional Book shall be pasted all documents registered under sections 17 and 18 of the Act which related to immoveable property and are not Wills.
PC No.13/18 Rishi Kumar vs. State & ors. page 12 of 19 Registration Rules a document like sale deed registered in register no1 after registration can be inspected by anyone and copies given but a Will registered in Book No.3 cannot be inspected by anyone or copies given according Section 57 (2) 5of the Registration Act and Rule 18 6of the Delhi Registration Rules,1976 till executant is alive. In other words after the death of executant of Will, it can be allowed to be inspected and copies given just as in the case a Sale Deed registered in Book 1.
23.By that logic both a sale deed and a Will after the death of the executant would qualify as Public Documents under section 74 (2) 7 of 5 (2) Subject to the same provisions, copies of entries in Book No. 3 and in the Index relating thereto shall be given to the persons executing the documents to which such entries relate, or to their agents, and after the death of the executants (but not before) to any person applying for such copies.
6
18. Book No. III. Book III is not open to public inspection, nor are its indices, but copies of wills and authorities to adopt pasted in it shall, on payment of the prescribed fees, be given to the persons executing the documents to which such copies relate, or to their agents, and after the death of the executants (but not before) to any person applying for such copies. The necessary search to locate the document shall be made by the Registering Officer in person. When a Will entered in this Book affects immoveable property situated in District or Districts other than that where the entry has been made, no copy will to be sent to the registering officers of those Districts or SubDistricts. This register shall contain the same heading as Book I. 7
74. Public documents. -- The following documents are public documents: -- (1) documents forming the acts or records of the acts -- (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, 3[of any part of India or of the Commonwealth], or of a foreign country;
(2) public records kept 4[in any State] of private documents. PC No.13/18 Rishi Kumar vs. State & ors. page 13 of 19 the Indian Evidence Act being Public Records kept of Private documents. Thus certified copies of these documents issued under section 76 of the Indian Evidence Act, would be admissible as secondary evidence under section 65 (f) of the Indian Evidence Act without having to lay any foundation like proving that the "original" of the Will in the hands of the executant/testatrix had been lost.
24.One may here refer to the judgment of the Hon'ble Madhya Pradesh in Smt. Rekha Rana And Ors. vs Smt. Ratnashree Jain[2005 SCC Online MP 364 ; AIR 2006 MP 107 ] in the context of a certified copy of a sale deed same reads as under:
"15. We have already held that a certified copy of a registered instrument/document issued by the Registering Officer, by copying from Book I, is a certified copy of a public document. It can therefore be produced in proof of the contents of the public document or part of public document of which it purports to be a copy. It can be produced as secondary evidence of the public document (entries in Book I), under section 65(e) read with section 77 of the Act without anything more. No foundation need be laid for production of certified copy of secondary evidence under section 65(e) or
(f). But then it will only prove the contents of the original PC No.13/18 Rishi Kumar vs. State & ors. page 14 of 19 document, and not be proof of execution of the original document. [Vide section 57(5) of Registration Act read with section 77 of Evidence Act]"
25. Thus on the same analogy one may conclude that the certified copy of the Will would be admissible in evidence without having to establish the foundational fact of it being lost. In the present case, in fact, there was evidence led, which has already been referred before, that there was a noncognizable report filed for the loss of original Will and on the basis of the same one can say that the petitioner in any case has been able to establish this fact as well that the original Will had been lost.
26.It can, therefore, be said that Will dated 08.01.2013 registered on 24.06.2013 Ex.PW1/1 stands proved or in other words stands authenticated.
All assets in respect of which the Letters of Administration has been prayed for are located outside the jurisdiction of this court
27.The petition filed for seeking probate(Letters of Administration) would show that the petitioner is asking for Letters of Administration in respect of the assets which are not located in the jurisdiction of this PC No.13/18 Rishi Kumar vs. State & ors. page 15 of 19 court and their value also exceeds more that Rs.10,000/. The said assets like already stated for which the Probate (Letters of Administration) is being prayed for are :
(A) Saving bank account bearing no.174401100000359, UCO Bank, Dhauli Piau Branch, Mathura, Uttar Pradesh in the name of deceased Smt. Ratna Devi, having total remaining balance of Rs.28,076/ as on 08.01.2018. (B) Fixed Deposit Receipt under Kuber Yojna Deposit scheme vide receipt no.17440310017692 dated 16.03.2012 amounting Rs.1,64,766/ and having balance amount of Rs.2,50,000/ approximately upto 01.02.2018, deposited in UCO Bank, Dhauli Piau Branch, Mathura, Uttar Pradesh in the name of deceased Smt. Ratna Devi.
(C) Fixed Deposit Receipt under Kuber Yojna Deposit scheme vide receipt no.17440310002063 dated 26.03.2010 amounting Rs.4,26,641/ and having balance amount of Rs.7,50,000/ approximately upto 01.02.2018, deposited in UCO Bank, Dhauli Piau Branch, Mathura, Uttar Pradesh in the name of deceased Smt. Ratna Devi.
28.Though, according to Section 270 of the Indian Evidence Act, it can be said that this court has the jurisdiction to entertain the present petition PC No.13/18 Rishi Kumar vs. State & ors. page 16 of 19 filed for seeking probate (Letters of Administration) as the deceased Testator had a fixed place of abode in Delhi but Section 273 proviso provides that a District Judge can grant Probate or Letters of Administration as the case may be only in a case the value of property and estate beyond the limits of the jurisdiction of a court does not exceed Rs.10,000/. The said Section reads as under :
"273. Conclusiveness of probate or letters of administration - probate or letters of administration shall have effect over all the property and estate, movable or immovable, of the deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding properly which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted :
Provided that probate and letters of administration granted
(a) by a High Court, or
(b) by a District Judge, where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge, and such Judge certifies that the value of the property and estate affected beyond the limits of the State does not exceed ten thousand rupees, shall, unless otherwise directed by the grant, have like effect PC No.13/18 Rishi Kumar vs. State & ors. page 17 of 19 throughout 1[the other States 2[* * *] ..............................................................................................."
29.In view of the foregoing discussion, it can therefore be concluded that this Court does not have the jurisdiction to grant Letters of Administration to the petitioner in respect of the properties i.e. bank deposit and FDR in UCO Bank, Dhauli Piau Branch, Mathura, U.P. as referred to in the petition. I am accordingly declining to grant Letters of Administration in respect of the same.
30. Though this Court may not have jurisdiction to entertain the present Petition to grant Letters of Administration in respect of the properties referred above but it may be stated here at the same time that it does not prevent the petitioner from approaching the court of competent jurisdiction for the grant of Letters of Administration u/s 228 of the Indian Succession Act on the basis of authenticated copy of the Will dated 08.01.2013, considering that it has been held that the said Will stands proved in this case.
31.An authenticated copy of the Will be provided to the petitioner for enabling the petitioner to approach the court of competent jurisdiction PC No.13/18 Rishi Kumar vs. State & ors. page 18 of 19 to seek Letters of Administration for the assets as referred to in the petition.
32.Ordered Accordingly.
Announced in the open
court on 30th October,2019 (LAXMI KANT GAUR)
Additional District Judge(05),
Central District, Delhi.
PC No.13/18 Rishi Kumar vs. State & ors. page 19 of 19