Delhi District Court
Anil Malhotra vs State on 26 February, 2016
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 139/10
Unique ID Case No. - 02401C0464112010
Anil Malhotra
S/o Late Sh. Chunni Lal Malhotra
R/o E-03, Ambience Island,
Gurgaon, Haryana.
.....Petitioner
Vs.
1. State
2. Urmila Chopra
W/o Sh. Rajpal Chopra
D/o Late Sh. Chunni Lal Malhotra,
R/o CP-134, East Pitampur,
Delhi
3. Devender Malhotra
S/o Late Sh. Chunni Lal Malhotra,
R/o 36/56, West Punjabi Bagh,
Delhi
4. Gopal Malhotra
S/o Late Sh. Chunni Lal Malhotra,
R/o B-20 Kirti Nagar,
New Delhi
5. Seema Khanna
W/o Sh. P. K. Khanna
D/o Late Sh. Chunni Lal Malhotra,
R/o 5C/11, Pocket B, Ashok Vihar,
Phase-III, Delhi 110052 ......Respondents
Date of institution of the case : 12.10.2010
Date reserved for judgment on : 15.02.2016
Date of pronouncement of judgment : 26.02.2016
PC No. 139/10 Anil Malhotra Vs. State Page 1 of 10
JUDGMENT:
1 A petition under Section 276 of Indian Succession Act for grant of Probate/ Letter of Administration filed by Anil Malhotra petitioner.
2 In brief the facts stated are that Sh. Chunni Lal Malhotra S/o Late Sh. Devi Dayal Malhotra was owner of properties mentioned in Schedule A:- i.e. (1)Built up industrial factory on plot area admeasuring 400 sq. yds bearing no. 3/21, Industrial Area, Kirti Nagar, Delhi. (2)Residential Property bearing no. B-20, Kirti Nagar, Delhi admeasuring 666 Sq.Yds approx.
(3)Agricultural land situated at Village Dischaun Kalan, Nangaloi Road, Delhi along with godwon.
(4) Share in Malhotra Rubbers Ltd.
(5)Share in M/s CEE AAR Finance & Leasing Ltd. (6) Deposit in the firm(s), companies, Bank and Shares etc., if any., (7)Agricultural land of 4 bighas in Khasra No. 521 and in Khasra No. 526 in Revenue State Masudabad, opposite Rana Mandir Najafgarh, New Delhi.
(8)1/3rd Share in the partnership business in the name and style of M/s Malhotra Tyre Services Co.
PC No. 139/10 Anil Malhotra Vs. State Page 2 of 103 Late Sh. Chunni Lal Malhotra (hereinafter referred to as deceased) was married to Smt. Raj Rani Malhotra and left behind following LRs Urmila Chopra Daughter of deceased Devender Malhotra Son of deceased Gopal Malhotra Son of deceased Seema Khanna Daughter of deceased Anil Malhotra Son of deceased 4 It is stated that deceased died interstate on 11.11.2005 at Delhi and his wife died interstate on 08.01.2006 and the legal heirs are mentioned herein above. It is stated that petitioner is one of the co-owner of the properties. Therefore, entitled of Letter of Administration qua his share or in the alternative along with other co-owners. It is stated that no other application has been filed to any other court for grant of letter of administration. It is stated that deceased was ordinary resident of Delhi at the time of his death. It is prayed that letter of administration of the Estate of deceased's properties as scheduled A annexed, may be granted in the alternative the Letter of Administration in favour of the legal heirs of the deceased.
5 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 "The Statesmen" dated 18.01.2011". Notice was also served to State through Chief Secretary and to Collector, West District. However, no valuation report filed by concerned SDM.
PC No. 139/10 Anil Malhotra Vs. State Page 3 of 106 Respondent No. 2, 4 and 5 filed their objections in which preliminary objections are taken that petition is barred by time as deceased died on 11.11.2005 and his wife on 08.01.2006 and present petition is filed beyond more than three years in th year 2011. It is stated that all the properties were transfered to his LRs / Sons, during his life time. Therefore, present petition is filed malafidly by the petitioner. The matter of the fact is that the applicant has already taken more than his share and now seeking to take further shares from other family members. It is stated that the present petition is liable to be dismissed, on the basis of the earlier settlement, arrived between all family members on 27.08.1996. All the family members had accepted and acted on the terms of the said family settlement and are enjoying their respective shares to the exclusion of others. Even the business of the family got partitioned and the only person to carry on the business of the family was Mr. D. K. Malhotra as separate individual.
7 It is stated that as the matter of fact, there has been division between Mr. D. K. Malhotra and Mr. G. K. Malhotra wherein in terms of award, they have further partitioned the properties, and got mutated and further disposed off. It is stated that built up Industrial Factory on plot and measuring 400 sq.yds bearing no. 3/21 Industrial Area Kirti Nagar, Delhi belongs to Mr. D. K. Malhotra and Mr. G. K. Malhotra, resident property bearing no. B-20, Kirti Nagar, Delhi has been registered by way of Gift/ Deed in favour of Mr. G. K. Malhotra well before the death of Sh. C. L Malhotra. The agricultural land situated in Village Dichan Kalan Nangloi Road, Delhi along with godown was sold and the PC No. 139/10 Anil Malhotra Vs. State Page 4 of 10 amount released has been disbursed accordingly.
8 It is stated that share of Malhotra Rubber had been relinquished by the petitioner as a part of the agreement and the share transfered in favour of Mr. D. K. Malhotra and Mr. G. K. Malhotra and thereafter further transfered in in the name of Mr. G. K. Malhotra. Shares in C. R. Finance and leasing, had been relinquished by the petitioner as part of agreement, and the share stand transfered in favour of Mr. G. K. Malhotra and thereafter transfered in the name of Mr. G. K. Malhotra. There was no Bank deposit and company and share etc. Agricultural land of 4 bigas in Khasra No. 521 and in Khasra no. 526 in revenue state of Masudabad, opposit Rana Mandir New Delhi was not owned by deceased at the time of his death as it was already transfered in the name of Mr. D. K Malhotra and Mr. G. K. Malhotra and subsequently transfered to Mr. G. K. Malhotra. 1/3rd Shares in partnership business in the name of and style M/s Malhotra Tyre Services Co. was not owned by deceased. (On merit, all the averments are denied. It is stated that petition is liable to be dismissed.) 9 The respondent no. 3 has filed his separate objection and taken preliminary objection that petitioner has not approached the court with clean hand and have suppressed the true and material facts. It is stated that deceased during his life time have entered into a family settlement on 29.02.196 with LR including the petitioner, thereafter, it is disinherited the petitioner from his estate/ properties including both movable and immovable. The public notice to this effect was published in Indian Express daily Newspaper dated 08.02.1996. It is stated PC No. 139/10 Anil Malhotra Vs. State Page 5 of 10 that petition is labile to be dismissed. On merit all the averments are denied and stated that petition is liable to be dismissed.
10 Petitioner filed rejoinder to the objections of respondents no. 2, 4 & 5 and denied all the averments made. The contents of petition reiterated. It is stated that as per knowledge of the petitioner, there was settlement dated 29.08.1996 but it has not been produced deliberately. But the petitioner is entitled of share of father of deceased even as per settlement. It is stated that there was no award between Mr. D.K. Malhotra and Mr. G. K. Malhotra.
11 On the basis of pleading, my Ld. Presiding Officer vide order dated 04.08.2011 has framed following issues:
1 Whether the petitioner by way of inheritance is entitled for letter of the estate of deceased Sh.
Chunni Lal Malhotra mentioned in schedule A? OPP 2 Whether the present petition is time barred?
OPR 3 Relief.
12 Issue No. 2 treated as preliminary issue and I have heard Sh. Krishan Kumar counsel on behalf of respondent no. 2, 4, & 5 and Dr. Seema Singhal counsel for respondent no. 3 and granted opportunities to file written arguments to the petitioner and perused the record. I have considered the respective submission and perused the record. However, no written arguments filed by petitioner.
13 Let us peruse the law laid down by Appex Court. The question for consideration, is whether the petition for grant of PC No. 139/10 Anil Malhotra Vs. State Page 6 of 10 Probate/ Letter of Administration is governed by the provision of Article 137 of the Limitation Act. Come up 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 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 cluase 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 chage 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 PC No. 139/10 Anil Malhotra Vs. State Page 7 of 10 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 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 confied 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.
14 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.
PC No. 139/10 Anil Malhotra Vs. State Page 8 of 10KIRANDEEP 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 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.
15 Now, in the instant case, petitioner Sh. Anil Malhotra has approached the court for grant of Letter of Administration on the estate of deceased Late Sh. Chunni Lal Malhotra who died on PC No. 139/10 Anil Malhotra Vs. State Page 9 of 10 11.11.2005. The present petition filed on 15.10.2011, it means after about 6 years. The other important fact point out by the parties that in the year 1996 a family settlement took place in the family of petitioner. In the rejoinder, the petitioner admitted the settlement dated 29.08.1996 arrived during the life time of his father. Therefore, the cause of action, arose for claiming of share of his father in November 2005. However, there is no averments in the petition about that any other family members excluding the respondents ever denied any right to him. He simply averred that after death of his father in the year 2005 and he has approached to court in the year 2011. Present petition is beyond three years. Hence, at the outset, it is barred by the limitation.
16 On the basis of observation and discussion, the issue is decided against the petitioner and in favour of the respondents.
17 On the basis of findings on the preliminary issue, the petition is dismissed being barred by limitation. Hence, petitioner is not entitled to grant of Probate/letter of administration in this respect. No order as to cost.
File be consigned to record room.
(Announced in the open (SANJAY KUMAR)
court on 26.02.2016 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 139/10 Anil Malhotra Vs. State Page 10 of 10