Delhi District Court
Shri Iftikhar Ahmad vs . State on 4 April, 2012
IN THE COURT OF SH. A.K. CHAWLA : DISTRICT JUDGE
(NORTH) DELHI
MPC 25/06
Unique Case ID No.02401C0001531998
Shri Iftikhar Ahmad Vs. State
Date of Institution of the application : 04.04.1998
Date of reserving the judgment : 26.03.2012
Date of pronouncement : 04.04.2012
JUDGMENT
By the petition filed U/s 263 of the Indian Succession Act, the petitioner seeks revocation/annulment of the grant of probate/Letters of Administration to Sh. Iftikhar Ahmad in respect of property No. 2870, Bulbulikhana, Bazar Sita Ram, Delhi hereafter referred to as 'the subject premises'.
2. Petition proceeds on the premise that the applicant Syed Iqbal Ahmad was the nephew and the only legal heir of Late Ms. Munawar Jahan and Syed Mubashir Ali (Mamu), who were his MPC25/06 Page 1/29 maternal aunt and the uncle. It is alleged that Iftikhar Ahmad, had fraudulently obtained Letters of Administration in respect of 'the subject premises', in order to usurp it on misrepresentation of facts in collusion with Late Mukhtar Ahmad and the counsel and that, sons of Late Mukhtar Ahmad namely Vakil Ahmad and Javed Ahmad, had then purchased 'the subject premises' from said Iftikhar Ahmad. It is also alleged that the Will dated 8.5.1982 hereafter referred to as 'the subject Will', of Ms. Munawar Jahan Begum hereafter referred to as 'the testator', was a forged and fabricated document, as she was suffering from paralysis and not in a position to execute 'the subject Will' and died on 19.5.1982, in the presence of the petitioner, her husband Mubashar Ali and the other tenants in the property, where she was staying with the applicant and other persons serving her during her sickness, in property No.2377, Kucha Mir Hashim, Chitli Qabar, Delhi. It is also the case of the applicantpetitioner that 'the testator' and her husband Mubashar Ali, were actually residents of Nagda (MP) and Khandwa (MP) and generally residing there, where the applicant petitioner was supporting them in all respects and that, 'the testator' died at Delhi on 19.5.1982 whereas, Mubashir Ali died at Baragaon on 10.7.1984. It is also the case of the applicantpetitioner that 'the MPC25/06 Page 2/29 testator' was brought to Delhi by her husband Mubashir Ali and the applicant, when she was under severe attack of paralysis and was almost under coma, when she died and that, her last rites were performed by the applicantpetitioner alongwith his maternal uncle Mubashar Ali. It is also averred that the testator and Mubashar Ali were having bank accounts in Delhi, Khandwa and Nagda (MP) in different banks and it was the applicant, who had obtained succession certificate from the Court of Sh. A.K. Jain, Administrative SJIC, Khandwa (MP) on the basis of Yadashatnama executed by 'the testator' on 14.8.1976 and Syed Mubashar Ali on 27.2.1983 and received the amount from the bank, being their only legal heir. It is also the case of the applicantpetitioner that the applicant was looking after both 'the testator' and her husband, and receiving the rent of the property from their tenants during their life time, including the property under the Letters of Administration obtained by Mukhtar Ahmad, by forging the signatures and the Will of 'the testator', in collusion with his counsel, as also, the witnesses to the Will. By the aforesaid Yadashtnamas, the deceased is said to have left the property No. 3110, Sir Syed Ahmad Road, Darya Ganj, New Delhi and 'the subject premises' in favour of the applicantpetitioner. Applicant MPC25/06 Page 3/29 petitioner has thus, prayed for revocation/annulment of the Letters of Administration of 'the subject premises' granted in favour of Iftikhar Ahmad.
3. In the reply filed, the nonapplicant petitioner Iftikhar Ahmad, while denying the averments and the allegations made in the petition, save and except the admissions made therein, took the preliminary objections viz. ApplicantIqbal Ahmad had no relation whatsoever, with Ms. Munawar Jahan Begum and her husband Mubashir Ali; applicant had concocted a story of inheritance; applicant had no locus standi to challenge the probate, as he was neither the owner nor in any way connected or related to the deceased Ms. Munawar Jahan; applicant was playing fraud on the Court by alleging relationship with Ms. Munawar Jahan; Munawar Jahan had executed a valid Will in favour of the nonapplicant petitioner in accordance with law; Letters of Administration were acted upon and property stood sold and transferred to Sh. Vakil Ahmad and Sh. Javed Ahmad by means of a valid sale deed executed on 12.2.1998 registered as document No. 743, Vol. No. I, Book No. 7729, on pages 181185 before SubRegistrar, Kashmere Gate, Delhi; no ground was made out in the petition for MPC25/06 Page 4/29 cancellation of Letters of Administration issued in favour of the non applicant petitioner; and that, notice of the probate petition was not necessary to be issued to the applicant, as he was neither a blood relation nor remotely related with the deceased Munawar Jahan. On merits, the nonapplicant petitioner, took the plea that under the Mohammedan Law there were three classes of heirs namely, (i) sharers; (ii) residuaries; and (iii) distant kindred and that, the applicant was neither a sharer or a residuary nor a distant kindred of the deceased Munawar Jahan Begum and therefore, the applicant had no locus standi to get the Letters of Administration granted in favour of the nonapplicant petitioner cancelled and that, after the sale of 'the subject premises', Vakil Ahmad and Javed Ahmad were the lawful owners of 'the subject premises'. It is also averred that the applicant was a permanent resident of Madhya Pradesh and never visited property No. 2377, Kucha Mir Hashim, Chitli Qabar, Delhi and that, though, Ms. Munawar Jahan Begum and her husband Mubashir Ali originally may have come from Nagda (MP) and Khandwa (MP), but they were permanent residents of Delhi and Ms. Munawar Jahan died in property No.2377, Kucha Mir Hashim, Chitli Qabar, Delhi. MPC25/06 Page 5/29
4. In the rejoinder filed, save and except the admissions made, the applicant reiterated averments and the assertions made in the petition. Applicant also averred in the rejoinder that the nonapplicant petitioner was fully aware that the applicant was the nephew of Munawar Jahan and Syed Mubashir Ali, who was the real brother of Ms. Shamdul Nisathe applicant's mother. It is also averred that Mubashir Ali was the real uncle (maternal uncle) of the applicant, the real brother of mother Ms. Shamdul Nisa of the applicant and thus, the nephew of Late Munawar Jahan Begum. It is also averred that the Muslim Personal Law does not recognise Will and in case the Will is rd executed, the deceased is entitled to transfer only 1/3 share to the beneficiary under the Will and that, the Yadashtnamas of Munawar Jahan Begum and Mubashir Ali, were the legal documents and the same were executed by them, during their lifetime, as there was no validity of Will under the Muslim Law.
5. On the pleadings of the parties, the following issues came to be framed :
(i) Whether there is just cause for the cancelling and annulling the letters of administration granted in favour of the petitioner/O.P. by order dated 5.6.97?
O.P. applicant MPC25/06 Page 6/29
(ii) Whether the applicant has locus standi to file the application? OPA
(iii)Relief.
6. In support of his case, applicant examined himself as AW1/OW1; AW2 Sh. S.M. Jain, Assistant Archivist; AW2 Sh. N.K. Pal, Sr. Judl. Asstt.; and AW3 Sh. A. Rehman, UDC, office of Sub RegistrarI; AW4 Ms. Kuldeep Kaur, Sr. Judl. Asstt.; AW5 Sh. Gopal Gupta, Asstt.Ahlmad; AW5A Sh. Abdul Rahim; AW5B Sh. Mukhtiar Ahmad; AW6 Sh. Nasir Mirza, House Tax Inspector, SadarPaharganj Zone, MCD; AW7 Sh. Ramesh KumarAsstt. Public Health Inspector, City zone, MCD; and AW8 Sh. Ravindra Nath, and closed PE.
Nonapplicant Iftikhar Ahmad examined himself as OW1; and OW2 Sh. Abdul Wahid and closed his evidence.
7. Applicant AW1/OW1 deposed as under :
"Deceased deceased Munawar Jahan Begum was my maternal aunt (mumani). The name of her husband was Sayeed Mubassir Ali. He was my real maternal uncle (Mamu). The name of the father of my maternal uncle is Bashir Ali. The name of my mother was Samudduninsa.
The name of the father of my mother was Sayeed Bahir MPC25/06 Page 7/29 Ali. Late Smt. Kunwar Jehan was residing along with her husband at Khandwa, Madhya Pradesh with me. Kunwar Jehan died in Delhi in the year 198219th May, 1982. She died at Delhi at the aforesaid address. She came in Delhi in the month of April, 1982. She was suffering from Coma. She was not in a position to move herself or to speak. She was brought at Delhi by me and her husband Sh. Sayeed Mubassir Ali. The treatment was given to her by a local Doctor. We have shown her in the Government Hospital. She was refused to be admitted in the Govt. Hospital and because of that the treatment was given to her at home. The prescription slip of the treatment is Ext. OW1/1. Mark A is the certified copy of the Will. At mark A the signatures of Sayeed Mubassair Ali at point B and C. The pass book issued by the Delhi Post Office is mark B, which stands in the name of Mubassair Ali. Later on the said amount was transferred to Khandwa, MP. March C is the copy of pass book of the Post Office of Humdard Dawakhana, Delhi which was issued in the name of Munwar Jehan Begum and later on the said account was transferred at Khandwa, MP. C/o the applicant/objector, as both were shifted at Khandwa, MP with me. Sayeed Mubassair Ali, my maternal uncle died at Bara Gaon on 18.07.84. The same is mark C. After the death of Sayeed Mubassair Ali and Smt. Munawar Jehan Begum, I have obtained a succession certificate in respect of their account from the court of District Court, Khandwa, MP. Ext. OW1/2 is the certified copy of succession certificate. Munwar Jehan Begum issued a General Power of Attorney in favour of Sayeed Mubassair Ali at Delhi on 15.10.1963 which is mark D, which bears the signatures of Munwar Jehan Begum at point A, B and C. A civil suit was filed in the High Court in respect of the property in Delhi wherein my mother and Sayeed Mubassair Ali, maternal uncle was the party and I MPC25/06 Page 8/29 appeared in the said case as power of attorney on behalf of my mother and on behalf of Sayeed Mubassair Ali. The case was compromised in the High Court on 30.7.1973. The photostat copy of the same is Mark E. Late Mukhtiar Ahmed was tenant in House No.2870, Bulblikhana, Bazar Sita Ram, Delhi. Mukhtiar Ahmed given a notice to me at my Khandwa address on 7.8.1995 which is Ext. OW1/3. The envelope is Ext. OW1/4. I have replied the same and the photostat copy of the reply is Mark F. The AD card is Ext. OW1/5. I have sold the said property to Abdul Rahim. He was my tenant. I do not know Iftikhar Ahmed who filed the present suit. No Will was executed in my presence on 8.5.1982. Ext. P1 at point A does not bear the signatures of Munwar Jehan Begum. I never seen Iftikhar Ahmed. Munwar Jehan Begum was not in a position to execute any Will including the alleged Will Ext. P1 as she was suffering from paralysis. Munwar Jehan Begum died in the year 1982, while Mubassair Ali, her husband died after her death in 1984 at Bara Gaon, Madhya Pradesh. No notice was served of the probate under dispute upon me inspite of the fact that I am the legal heir of late Munwar Jehan Begum and Mubassair Ali, as both died issueless. I have performed all the rites of buriel of Smt. Munwar Jehan Begum at Delhi and she was buried in Mehenndian Kabristan, New Delhi on 20.5.1982, as she died at about 11 or 11.30 p.m. at 237477, Chitli Qabar, Pathak, Meer Hasham, Delhi. While she died, Sh.
Bubassair Ali, I myself, my wife, Dr. Tariq, Abdul Rahim, and his father Shubhrati, Mukhtiar Ahmed S/o Mohd. Ahmed all were there at the time at her last breath. I was receiving the rent on behalf of Sayeed Mubassair Ali and Munwar Jehan Begum on their behalf from their life time and issuing the rent receipt in the favour of the tenants. I have brought the counter foil of the rent receipts issued to the tenants in respect of property No. 2870, Bulbulikhana, MPC25/06 Page 9/29 Bazar Sita Ram, Delhi. The counterfoil of the receipt issued in the name of Mukhtar Ahmed is Ext.OW1/6 which is dated 1.1.95. Another receipts are Ext.OW1/7 and Ext.OW1/8. There are three more tenants and I do not know/recollect the name of third one. The counterfoils of the rent receipts of the said tenants are contained in the rent receipt books Ext.OW1/9 and Ext.OW1/10 collectively. Mubassair Ali my maternal uncle never told me that his wife Smt. Munawar Jehan Begum had ever executed any Will. Iftikar Ahmed also never informed me that Smt. Munawar Jehan Begum had executed any Will in his favour."
8. AW2 brought the summoned record i.e. Will dated 21.3.1968, registered as document No. 118, Addl. Book No. 3/13, page Nos. 110 & 111 on 23.3.1968, the copies whereof, was Ex.AW1/1. He also brought the General Power of Attorney dated 19.10.1963 registered as document No. 1887 in addl. book No.4. Vol. 129 in the office of the SubRegistrar, Asaf Ali road. Another applicant's witness AW2 N.K. Pal came to be discharged without being examined. AW3 came from the office of the SubRegistrar, Kashmere Gate and proved the original registered GPA Ex.AW3/1 executed by Ms. Maussamat Jahan Begum D/o Syed Munir Ahmad in favour of Syed Mubashir Ali. AW4 proved the certified copy of the compromise application and GPA dated 15.10.1971 and 10.5.1967 in suit No. 443/71 titled Syed Mubashir Ali MPC25/06 Page 10/29 Vs. Dr. Narayan Das Gupta & Ors. as Ex.AW4/1 (Colly.). AW5 brought the record of suit No. PC3/98 titled Iqbal Ahmad Vs. State and proved the death certificate Ex.PW5/1 of Mubashir Ali. AW5A Abdul Rahim (prior to order dated 25.4.2006 mentioned as AW4) in his deposition by way of affidavit Ex.AW4/A deposed as under :
"............................................................................................ ..............................................................................................
1. I say that I know the objectorcumapplicant Syed Iqbal Ahmad S/o Syed Mohd. At present residing Khandwa (MP) who is the real nephew of Smt. Munawwar Jahan Begum since deceased since my childhood.
2. I say that my father late Subhrati was the tenant in the aforesaid house where at present I am residing as owner and purchased the said house from Syed Iqbal Ahmad vide sale deed dated 28/12/94.
3. I say that late Smt. Munawwar Jahan Begum was residing at Khandwa (MP) alongwith her husband Syed Mubasir Ali with Syed Iqbal Ahmad the applicant in the present case. I further say that Mst. Munawwar Jahan Begum died at Delhi 19/5/1982 and Syed Mobasir Ali her husband died on 10/7/1984 at Bara Gaon, Khandwa (MP).
4. I further say that Ms. Munawar Jahan Begum was brought by her husband and Syed Mobasir Ali & Syed Iqbal Ahmad the applicant in the last week of April, 1982 and was suffering from paralysis and was not in a position even to speak. She was brought from Kahndwa (MP) for the treatment at Delhi. Mst. Munawwar Jahan Begum and Late Shri Mobasir Ali MPC25/06 Page 11/29 were issueless and the only legal heir was Syed Iqbal Ahmad the applicant. Syed Mobasir Ali was the real uncle of Syed Iqbal Ahmad Mst. Munawwar Jahan Begum while came from Khandwa (MP) in the last week of April she was not in a position even to speak as she was suffering from paralysis and a treatment was given to her by a local doctor Dr. Farooqi who was residing in the said area. Mst. Munawwar Jahan Begum was not in a position right from the date she came at Delhi from Khandwa (MP) till she took her last breath on 19/5/1982.
5. I say that the deponent has never seen Iftikhar Ahmad and he came to know first time while the deponent came to know about the Probate obtained by him under Probate case No. 419/95 under title Iftikhar Ahmad Vs/ State and filed a forged probate before the Hon'ble Distt. Court dated 8/5/1982.
6. I further say that Syed Mobasir Ali died in Khandwa (MP) on 10/7/84 after the death of Smt. Munawar Jahan Begum at Delhi and all the last rites were performed of Mst. Munawar Jahan Begum by Syed Iqbal Ahmad and all the expenses incurred by him for her sickness till she died.
7. I say that my father late Shri Subhrati was tenant under Mst. Munawar Jahan Begum and the rent receipt signed by her issued in favour of my father are exhibited as under.
8. I say that a Will dated 23368 executed by late Syed Mobasir Ali is also signed as a marginal witness by my father late Shri Subhrati whose signatures are at point 'A' and I recognise his signature being his father.
My father has also signed on rent receipt dated 851971 and 2571975. The said receipts are also duly signed by Ms. Munawar Jahan Begum and another receipt during her life time and I recognise the MPC25/06 Page 12/29 signature of my father and Mst. Munawar Jahan Begum as the signatures of my father and Mst.
Munawar Jahan Begum were put in my presence on the said documents.
9. I further say that Mst. Munawar Jahan Begum was not capable to sign any documents including the alleged and fabricated Will dated 851982 during her sickness prior to her death at she was not in a position even to speak or suffering from paralysis."
AW5B Mukhtar Ahmad (prior to order dated 25.4.2006 mentioned as AW5) in his deposition by way of affidavit Exs.AW5/A deposed as under :
"...................................................................................... ........................................................................................
1. That I say that the applicant/Syed Iqbal Ahmad is the only legal heir being nephew of late Mst.
Munawar Jahan Begum and Syed Mobasir Ali, maternal uncle (Mamu).
2. I say that Mst. Munawar jahan Begum was brought by the petitioner alongwtih Syed Mobasir Ali at Delhi in the last week of April, 1982 as she was suffering from the paralysis and was not in a position to move and died on 19/5/1982 at Delhi. During the said sickness and her all last rites were performed by Syed Iqbal Ahmad the applicant.
3. I say that Syed Mobasir Ali died on 10/7/84 at Baragaon, Khandwa (MP) and a General Power of Attorney which was duly executed by Ms. Munawar Jahan Begum was also signed as marginal witness at point 'A' in the Power of MPC25/06 Page 13/29 Attorney dated 19/10/1963 which was duly executed by Ms. Munawar Jahan Begum before the Subregistrar, Delhi and the signatures of Mst. Munawar Jahan Begum are at point 'A' at the said GPA which was executed in favour of Syed Mobasir Ali. My father was the tenant under Shri Mobasir Ali in house No. 2371, Kuncha Mir Hashim, Chitli Qabar, Delhi and after the death of my father I became the tenant in the said property and residing on the ground floor and Syed Iqbal Ahmad is the owner of the said property and issuing the rent receipt in my favour.
4. I say that Smt. Munawar Jahan Begum had not executed any Will in favour of Shri Iftikhar Ahmad who is unknown person for the Executant, Mst. Munawar Jahan Begum, Syed Mobasir Ali and Syed Iqbal Ahmad as she was suffering from paralysis and was almost under the influence of Koma and was not in a position even to move from the bed during her sickness from last week of April till she died on 19/5/1982 at Delhi and took her last breath at about 11 at night in the presence of the deponent. The deponent was looking after the house of Mst. Munawar Jahan Begum in her absence as the key of house No. 2377, Kuncha Mir Hashim, Bazar Chitli Qabar, Delhi and the keys of the house were remaining with the deponent. The deponent also served her during her sickness alongwith other family members. Mst. Munawar Jahan Begum and Syed Mobasir Ali died issuless and Syed Iqbal Ahmad was the only legal heir of both the deceased. Syed Iqbal Ahmad was receiving the rent on behalf of Syed Mobasir Ali and Mst. Munawar Jahan Begum during their life time.MPC25/06 Page 14/29
5. I say that Syed Iqbal Ahmad was looking after both Mst. Munawar Jahan Begum and Syed Mobasir Ali during their life time and both were shifted to Khandwa (M) much prior to their death and were residing with Syed Iqbal Ahmad the applicant in the aforesaid case of probate. I further say that even during the sickness as well as in the last rites after the death of Mst. Munawar Jahan Begum I have never seen Iftikhar Ahmad the petitioner of the aforesaid probate case.
6. That Shri Mobasir Ali died at Badagaon Madhya Pradesh on 1071984 after the death of Mst.
Munawar Jahan Begum.
.................................................................................. ................................................................................
In his further deposition by way of affidavit Ex.PW5/B, he also deposed that he was the attorney of the applicant Syed Iqbal Ahmad of prosecuting the case on his behalf. He also deposed that the Yadastnama dated 14.8.76 Ex.PW5/X was executed by Ms. Munawar Jahan and the photocopy of Yadastnama markY dated 21.2.83 was executed by Mubasir Ali. He also deposed that Syed Iqbad Ahmad had sold property No. 2870, Bulbulikhana, Bazar Sita Ram to Abdul Rahim. AW6 came from the house tax department of the MCD and deposed that property No. 2870, Ward No.9, Bulbuilikhana, Bazar Sita Ram, Delhi was presently assessed to house tax in the name of Abdul Rahim S/o Subrati and prior to that, it was assessed in the name of MPC25/06 Page 15/29 Syed Iqbal Ahmad S/o Syed Mohd. R/o 2377, Kucha Mir Hashim, Bazar Chitli Qabar, Jama Masjid and prior to that, as per the record brought by him, it was assessed to house tax in the name of Munawar Jahan Begum and that, it was never assessed in the name of Iftikhar Ahmad. He also proved the mutation letter dated 22.1992 Ex.AW6/1 issued by his department in the name of Syed Iqbal Ahmad in respect of the property No. 2870, Ward No.9, Bulbulikhana. He also deposed that the amendment to the assessment list order dated 18.8.1994 Ex.AW6/2 was also issued in the name of Syed Iqbal Ahmad in respect of the said property and that, the house tax assessment was transferred in the name of Abdul Rahim on the basis of sale deed executed in the year 1995. AW7 proved the death certificate Ex.AW7/1 of Ms. Munawar Jahan. Handwriting expert AW8 tendered in evidence his deposition by way of affidavit Ex.AW8/A and proved his handwriting expert report Ex.AW8/1 and the seven photographs and negatives thereof, were Ex.AW8/2 (Colly.) and Ex.AW8/3 (Colly.)
9. Nonapplicant Iftikhar Ahmad in his deposition by way of affidavit Ex.OW1/A. In his such deposition, he deposed that late Ms. MPC25/06 Page 16/29 Munawar Jahan during her lifetime had executed a Will of her own free will, without any kind of undue influence, pressure or coercion from anyone on 8.5.1982 at Delhi and died at Delhi on 19.5.1982. He also deposed that Ms. Munawar Jahan Begum at the time of her death, was owner of builtup house No. 2870, Bulbuilikhan, Bazar Sitaram, Delhi and had bequeathed the said builtup property in his favour. He also deposed that Ms. Munawar Jahan Begum, for several years prior to her death, was under his care and being looked after by him and since she was issueless, she treated him and considered him as her son.
He also deposed that Syed Iqbal Ahmad was neither related to Munawar Jahan Begum nor her husband Mubashir Ali and had, no right to challenge the probate/Letters of Administration. He then deposed that Ms. Munawar Jahan Begum never lived at Khandwa (MP) but lived at Delhi and used to visit Khandwa (MP), for short periods. Nonapplicant Iftikhar Ahmad as such deposed to prove his case and defend the grant of letters of administration in his favour.
OW2 in his deposition by way of affidavit Ex.OW2/A deposed that he knew the parties and the deceased Ms. Munawar Jahan Begum and that, he saw Iftikhar Ahmad serving Ms. Munawar Jahan Begum for about 810 years.
MPC25/06 Page 17/29
10. I have heard the Ld. counsel for the petitioner and perused the record carefully.
11. My issuewise findings are as follows :
ISSUE NO.1 :
Whether there is just cause for the cancelling and annulling the letters of administration granted in favour of the petitioner/O.P. by order dated 5.6.97? O.P. applicant Grant of probate or Letters of Administration can be revoked or annulled for just cause, as provided for U/s 263 of the Indian Succession Act. Explanation attached to the said section provides that just cause shall be deemed to exist interalia, when the grant was obtained fraudulently, by making a false suggestion or by concealing from the Court something material to the case. Invoking the said provision, ApplicantSyed Iqbal Ahmad has approached the Court for seeking revocation or annulment of the grant of Letters of Administration to the nonapplicant petitioner Iftikhar Ahmad by this Court on 23.1.1998 with the Will annexed, purportedly executed by Ms. Munawar Jahan, in respect of the property bearing No. 2870, Bulbulikhana, Bazar Sita Ram, Delhi i.e. 'the subject premises', as MPC25/06 Page 18/29 according to the applicant, it was obtained fraudulently. Letters of Administration came to be issued to the nonapplicant Iftikhar Ahmad, in pursuance of the judgment dated 5.6.1997. It is the case of the applicant that he was a legal heir of the deceased Munawar Jahan, i.e. the testator but such fact was withheld by the nonapplicant Iftikhar Ahmad from the Court and the Will was forged and fabricated, as the testator Ms. Munawar Jahan was suffering from paralysis and was not in a position to execute the alleged Will and died on 19.5.1982, in his presence and her husband Mubashir Ali and the other tenants, in property No.2377, Kucha Mir Hashim, Chitli Qabar, Delhi. Before I advert further to the plea of the applicant Syed Iqbal Ahmad for revocation/annulment of the Letters of Administration granted to the nonapplicant Iftikhar Ahmad, it is very relevant to note that the Letters of Administration came to be granted to the nonapplicant Iftikhar Ahmad in pursuance of the uncontested proceedings and that, no citation of the petition was issued for any of the relations of Ms. Munawar Jahan. It so happened, when the nonapplicant Iftikhar Ahmad filed the petition on the premise that Ms. Munawar Jahan Begum was under his care and was being looked after by him for several years and he was considered as her son and that, her husband MPC25/06 Page 19/29 had already died. Paras 5 & 7 of the petition seeking Letters of Administration filed by the nonapplicant Iftikhar Ahmad, are as follows :
"5 That Mst. Munawr Jahan Begum ( deceased) testator of the WILL, several years prior to her death, was under the care and lookafter of the petitioner.
.............................................................................................. .............................................................................................
7. That Mst. Munawar Jahan Begum deceased at the time of her death was intestate (issueless) and treated considered the petitioner as her son. And the husband of the deceased has also died."
Why the citation of the petition was not required to be issued to any of the relations/legal heirs of the deceased Munawar Jahan and no citation came to be issued, nonapplicant petitioner filed an affidavit before the Court, as follows :
"............................................................................................ ..............................................................................................
1. That there is no legal heir or representative and/or relative of the deceased ms. Munawar Jahan Begum W/o Syed Mubassir Ali R/o 2377, Kucha Meer Hashim, Bazar Chitli Qabar, Delhi, except the petitioner, to the knowledge of the deponent.
.............................................................................................. ............................................................................................"MPC25/06 Page 20/29
Applicant Syed Iqbal Ahmad in his deposition has categorically deposed that Ms. Munawar Jahan Begum was his maternal aunt (Mumani). He has explained his such relation by also deposing that Syed Mubashir Ali, who was the husband of Ms. Munawar Jahan, was the brother of his mother Ms. Samaddunisa and that, father of his mother and Syed Mubashir Ali, was Bashir Ali. His such deposition has gone unchallenged and unrebutted. AW5A Abdul Rahim and AW5B Mukhtar Ahmad have also deposed to the similar effect. Succession Certificate Ex.OW1/2 issued to the applicant, by the Court at Khandwa, being the nephew and the only legal heir of Ms. Munawar Jahan and Mubasir Ali, which is not even alleged to have been challenged by anyone, also lends support to the assertions of the applicant Syed Iqbal Ahmad, was the nephew and legal heir of the deceased Ms. Munaar Jahan. The relationship of the applicant Syed Iqbal Ahmad with the deceased is thus, well established. Whether he was the only legal heir or relation of the deceased Munawar Jahan, is really not relevant for the decision on the application and the issue in hand, in as much as, by the instant petition, the applicant seeks revocation or annulment of the probate granted, on the premise that it was obtained fraudulently. Nonapplicant petitioner's own deposition MPC25/06 Page 21/29 during cross, on 18.8.06, that there was a sister of Ms. Munawar Jahan but did not know her name, belies his own affidavit, filed before the probate Court, that there was no other legal heir or representative and/or relative of the deceased Munawar Jahan. It was certainly a misrepresentation before the Court. Assuming, he did not know the name of the sister of the deceased Munawar Jahan, it was still incumbent upon him to disclose such material fact in the petition and the affidavit. It is thus, another circumstance of misrepresentation on the part of the nonapplicant petitioner Iftikhar Ahmad. Another serious fact of misrepresentation made by the nonapplicant petitioner Iftikhar Ahmad before the Court is the fact that in his exparte deposition before the Court, he deposed that the husband of Munawar Jahan died prior to her death, whereas, it is well established on record that while Munawar Jahan died on 19.5.1982, her husband died later, on 10.7.1984. Interestingly, nonapplicant Iftikhar Ahmad during his cross, on 18.8.06, in the instant proceedings for revocation/annulment of probate,has deposed that he was told by the testator Ms. Munawar Jahan that her husband had died 4/5 months prior to her death. In other words, he says, 4/5 months prior to the death of Munawar Jahan on 19.5.1982, he was so told by the testator herself. Will Ex.P1, which MPC25/06 Page 22/29 was allegedly executed on 8.5.1982, however, speaks of her husband being alive, though fragile. Had Munawar Jahan by herself told the nonapplicant petitioner of the death of her husband prior to the execution of the Will, there was no reason, as to why in the Will Ex.P1, she would have mentioned otherwise. On the face of it, bundle of misrepresentations at different stages of the proceedings by the non applicant petitioner. Though, it is not very relevant for the purposes of the instant proceedings of revocation/annulment of Letters of Administration, advertance to the facts and circumstances, in which the testator allegedly executed the Will Ex.P1, bequeathing one of her properties only in favour of the nonapplicant petitioner, is necessary. Nonapplicant petitioner Iftikhar Ahmad approached the Court for seeking Letters of Administration in respect of the Will, on the premise that Munawar Jahan Begum was under his care and looked after by him and, as she was issueless, she considered him as her son. But for such bald deposition that he looked after the deceased Munawar Jahan for several years and that, she treated him as her son, no cogent evidence has come to be led by the nonapplicant petitioner, at any stage. The only independent witness produced by the non applicant petitioner, in his short deposition, only deposed that he knew MPC25/06 Page 23/29 the parties and the deceased Munawar Jahan Begum and that, he saw Iftikhar Ahmad serving and looking after Munawar Jahan Begum, for about 810 years. When crossexamined, as to how does he say, that Iftikhar Ahmad was serving and looking after Munawr Jahan, he explains by saying that, he had seen him going inside the house of Munawar Jahan often. Strange are the assessments. Such assessments and conclusions arrived at by nonapplicant's witness OW2 are of no avail. As said earlier, no worthwhile, muchless cogent evidence, has come to be led that the nonapplicant petitioner has been serving and looking after Ms. Munawar Jahan for any period of time muchless, for several years. Bald deposition of the nonapplicant petitioner that he was looking after and serving Ms. Munawar Jahan, is also belied from the fact that Ms. Munawar Jahan, who undisputedly was having various properties in Delhi and other places, died while living in house No. 2377, Kucha Mir Hashim, Chitli Qabar, Delhi, which was inhabited by the tenants as well. Though, nonapplicant petitioner has denied that there were tenants also in the said premises but during cross, when specifically suggested that Gulzar Ahmad, Sultana, Irshad, Niyaz ahmad, Rehana, Riyaz Mirza, Anwar Mirza and Zamir Hussain were tenants in the said house, he feigned ignorance, stating that he MPC25/06 Page 24/29 could not say, if, these persons were still tenants in the said house. In other words, it tantamounts to admission of such facts. Not only that, AW5A Abdul Rahim in his unchallenged and unrebutted testimony has categorically deposed that his father Subhrati was tenant in the aforesaid house i.e. house No. 2870, Bulbulikhana, Bazar Sita Ram and during cross, has also deposed that he took on rent the ground floor in June, 1981 and that, it was taken on rent from Ms. Munawar Jahan and Syed Mubasir Ali. Nonapplicant Iftikhar Ahmad, who claims to have looked after and served Ms. Munawar Jahan for years, has however feigned ignorance of even such material fact. Had he been serving the deceased Munawar Jahan for several years and was being treated as her son, certainly, he would have known the tenants in the premises and have had some evidence to adduce before the Court, as a proof of her having looked after for any of her necessities, whether medical or otherwise and possessed of some material, but none has come to be even filed on record, muchless, proved. It is thus, equally a circumstance, casting serious doubt on the due execution of the Will propounded by the nonapplicant Iftikhar Ahmad. Handwriting expert AW8 on the comparison of the signatures on the Will dated 8.5.1982 Ex.P1 and the undisputed registered GPA MPC25/06 Page 25/29 dated 19.10.1963 executed by 'the testator' Ms. Munawar Jahan, has opined that the signatures appearing on the Will dated 8.5.1982 were not in the handwriting of the person, who executed the GPA. In other words, the signatures on the Will were not that of Ms. Munawar Jahan. To rebut his deposition, nonapplicant Iftikhar Ahmad has not chosen to examine any handwriting expert. Be that as it may, I do not consider it necessary to delve further on the aspect of the Will being forged or fabricated. Suffice to say, in my considered view, the non applicant Iftikhar Ahmad obtained the Letters of Administration from the Court fraudulently.
In view of the foregoing, issue in hand is answered in the affirmative.
ISSUE NO.2:
Whether the applicant has locus standi to file the application? OPA Under issue No.1, it has already been observed that the applicant was a relation of the deceased. In the submissions of the ld.
counsel for the nonapplicant, the applicant Syed Iqbal Ahmad, was not a legal heir to succeed to the estate of Ms. Munawar Jahan under the Mohammedan Law and therefore, had no locus standi to maintain MPC25/06 Page 26/29 the petition/application, seeking revocation/annulment of Letters of Administration. Also, in the submissions of the ld. counsel for the nonapplicant, applicant was only Bhanja of husband of Munawar Jahan and as per Mohammedan Law, in view of the depositions of applicant, during cross and AW5B Mukhtar Ahmad that Ms. Munawar Jahan had four sisters and three brothers, he was neither a sharer nor residuary nor a distant kindred and therefore, could not maintain the petition/application. In other words, in the presence and existence of nearer heirs i.e. sharers and residuaries, no other person had any right to claim and maintain the petition. In support thereof, reliance is placed upon AIR 1996 SC 702 Newanness @ Mewajannessa Vs. Shaikh Mohamad & Ors.; AIR 1915 Lower Burma Page 89 Ma Nan The & Ors. Vs. Mi Hme Ma Ye & Anr.; AIR 1917 Patna 44 Shaik Mirza vs. Abdul Gani & Ors.; AIR 1932 Sind 67 Tayabally Vs. Bibi Fatma & Ors.; and 2006 (14) SCALE 156 Utha Moidu Haji Vs. Kuningarath Kunhabdulla & Ors. Judgments relied upon have reference to classes of heirs and the extent of their share in the estate of the deceased and that, the nearer degree, excludes the remote.
There is no dispute, as regards the said preposition of law. It is also true that applicant Syed Iqbal Ahmad during cross, has deposed that MPC25/06 Page 27/29 Ms. Munawar Jahan had four sisters and three brothers and in view thereof, the applicant being the nephew, would not a legal heir to succeed to the estate of Ms. Munawar Jahanthe testator. Let it be so, though, none of the parties have chosen to establish on record that any of the brothers or sisters of the testatorMs. Munawar Jahan were alive, the fact remains, as observed to under Issue No.1, the applicant was a surviving relation of Ms. Munawar Jahan, at the time of filing of the probate petition by the nonapplicant Iftikhar Ahmad, but the non applicant did not disclose any such fact in the petition and no citation of the probate petition came to be issued by the Court, as the non applicant filed an affidavit before the Court to the effect that there was no legal heir or representative and/or relative of the deceased Ms. Munawar Jahan. It was a false statement and concealment of material facts from the Court. Brothers and sisters of the testatorMs. Munawar Jahan and in their absence, the applicant ought to have been cited in the probate proceedings initiated by the nonapplicant. When that is so, it cannot be said that the applicant Syed Iqbal Ahmad had no locus standi to maintain the aplication seeking revocation/annulment of the Letters of Administration issued to the nonapplicant petitioner.
Contention raised to the contrary, is therefore, rejected. Issue in hand MPC25/06 Page 28/29 is therefore, answered in the affirmative.
RELIEF :
Petition seeking revocation/annulment of probate/Letters of Administration is allowed. Letters of Administration granted vide judgment dated 5.6.1997 are revoked. Nonapplicant petitioner Iftikhar Ahmad is directed to return the certificate of Letters of Administration, within 7 days from today.
Announced in the open Court (A.K. Chawla)
th
on 4 day of April, 2012 District Judge(N)/Delhi
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