Delhi District Court
Smt. Neelam Bali vs The State on 15 April, 2017
IN THE COURT OF LD. ADMINISTRATIVE CIVIL JUDGE
CUM ADDITIONAL RENT CONTROLLER (CENTRAL) :
DELHI
Presided over by : Sh. Hem Raj
Petition No. : SC/32864/16
In the matter of:
Smt. Neelam Bali,
W/o. Late Sh. Deshmittar Bali,
R/o. 48/1, Lal Quarters, Ghaziabad,
U.P.
....Petitioner.
Versus
1 The State
(Govt. of NCT of Delhi)
2 Smt. Sushma Bali,
W/o. Late Sh. Subhash Bali,
3 Sh. Sandeep Bali,
S/o. Late Sh. Subhash Bali,
4 Smt. Dolly,
W/o. Late Sh. Sanjay Bali,
5 Sh. Seemant Bali,
S/o. Late Sh. Subhash Bali,
All Residents of :
H.No. 27B/11,
New Rohtak Road, New Delhi.
Petition No. SC/32864/16
.....Respondents.
Date of Institution : 19.02.2007 Date of order when reserved : 15.04.2017 Date of order when announced : 15.04.2017 J U D G M E N T :
1. The present succession petition has been filed by the Petitioner Smt. Neelam Bali for grant of Succession Certificate in her favour qua the debts and securities left by Smt. Shanti Devi, who expired on 06.01.1998 at Delhi. The case of the petitioner for better understanding the facts of the case of the petitioner, the same are recapitulated as under : 2 That one Sh. Bhim Sen Bali was married to Smt. Sumitra, sister in law of Sh. Suraj Prakash Mehta, before the partition. Smt. Sumitra gave birth to two sons namely, Sh. Subhash Bali and Sh. Desh Mitter Bali, but later on Smt. Sumitra expired. Since there was no one to look after the boys, Sh. Bhim Sen Bali requested Sh. Suraj Prakash Mehta and his wife Smt. Shanti Mehta to take care of both the boys for which they agreed. After nine moths of death of Smt. Sumitra, his wife, Sh. Bhim Sen Bali got married with Smt. Raj Rani i.e. respondent no. 5. After the marriage, Sh. Bhim Sen Bali and respondent no. 5 went to Sh. Suraj Prakash Mehta and Smt. Shanti Devi to take back one son i.e. Sh. Subhash Bali, but they are told to take back also Sh. Desh Mitter Bali. On showing the inability for the Petition No. SC/32864/16 same by Sh. Bhim Sen Bali and respondent no. 5 they agreed that Sh. Desh Mitter Bali would remain with Sh. Suraj Prakash Mehta and Smt. Shanti Devi. Sh. Subhash Bali came alongwith Sh. Bhim Sen Bali and respondent no. 5.
In this manner, Late Smt. Shanti Devi is the Mausi of Sh. Desh Mitter Bali. Sh. Desh Mitter Bali got educated by Sh. Suraj Prakash Mehta and Smt. Shanti Devi. Sh. Desh Mitter Bali was a mentally unsound person and he also got the treatment from the hospital. After the death of Sh. Bhim Sen Bali, Sh. Subhash Bali and respondent no. 5 got signatures on blank papers when Sh. Desh Mitter Bali was not in sound mind. It is further averred that later on respondent no. 5 had withdrawn two FDRs despite not being nominee thereof and that Sh. Desh Mitter Bali was never adopted as son of Sh. Suraj Prakash Mehta and his wife Smt. Shanti Devi. On this averment, the petitioner has prayed for the succession certificate in her favour as sole legal heir as niece and widow of Sh. Desh Mitter Bali.
3 The notice of this petition was given to the general public by way of publication in the newspaper 'Vir Arjun' dated 08.01.2008, but none appeared from general public to oppose or contest the present petition.
4 Respondents no. 2 to 4 have filed their reply/no objections Petition No. SC/32864/16 to grant of Succession Certificate in favour of the petitioner in respect of the debts and securities of the deceased.
5 Respondent no. 5 Smt. Raj Rani filed objections wherein it is averred that the name of the petitioner is Smt. Neelam Mehta and not Smt. Neelam Bali, who is the widow of Sh. Desh Mittar Mehta, the adopted son of Smt. Shanti Devi and Sh. Suraj Prakash Mehta. Smt. Sumitra Bali wife of Sh. Bhim Sain Bali had expired leaving behind two sons in their tender age. Thereafter, Sh. Bhim Sain Bali had got married with respondent no. 5. Sh. Desh Mitter Bali had been given in adoption by Sh. Bhim Sain Bali after the death of Smt. Sumitra Bali to Sh. Suraj Prakash Mehta and Smt. Shanti Mehta, who had no child. The name of father of Desh Mitter Bali has been recorded as Sh. Suraj Prakash Mehta. As such, the petitioner is the daughter in law of Smt. Shanti Mehta wife of Sh. Suraj Prakash Mehta. There is no oral Will nor any such fact has been mentioned by the petitioner in her suit filed in 1998 titled as Sh. Dinesh Bali and Others Vs. Smt. Raj Rani and Others which is pending for adjudication. Petitioner has not disclosed the names of the sisters and brothers of the deceased Smt. Shanti Devi.
6 Petitioner filed her replication/rejoinder denying all the averments made by the respondent no. 5 wherein it is averred that Desh Mitter Bali has not been given in adoption to Sh. Suraj Prakash Petition No. SC/32864/16 Mehta. After the Hindu Adoption & Maintenance Act, 1956, came into effect, Sh. Desh Mitter Bali had not been given in Adoption to Sh. Suraj Prakash Mehta and Sh. Desh Mitter Bali remained as a son of Sh. Bhim Sen Bali. The school certificate as alleged was issued in 1959 whereas the Hindu Adoption & Maintenance Act was passed in 1956 and adoption has not taken place as per provisions of applicable law i.e. the Hindu Adoption & Maintenance Act. No Adoption ceremony has taken place and no documents have been executed prior to 1947. After partition no adoption had taken place and the objector has not stated when the adoption took place. Smt. Raj Rani, respondent no. 5 got two FDRs encashed from the Punjab National Bank, Rohtak Road branch, New Delhi bank to the amount of Rs.60,000/ and Rs.30,000/ after the death of Smt. Shanti Mehta.
7 During the pendency of the petition, respondent no. 5 Smt. Raj Rani had also expired. Vide order dated 23.11.2016, her LRs namely Smt. Sushma Bali, Sh. Sandeep Bali, Smt. Dolly and Sh. Seemant Bali have been impleaded in the present petition.
8 In order to substantiate her case, petitioner only examined herself as PW1, she deposed that deceased Smt. Shanti Devi expired on 06.01.1998 at New Delhi and her death certificate is Ex. PW1/1. The deceased has left behind fixed deposits which are in the custody of the respondent no. 5 Smt. Raj Rani widow of Late Sh. Bhim Sen Petition No. SC/32864/16 Bali, the same are Ex. PW1/2 and Ex. PW1/3, amounting to Rs.1,40,000/. She is also claiming the amount of two FDRs, amounting to Rs.60,000/ and Rs.30,000/ which had already been withdrawn by the respondent no. 5 after the death of Smt. Shanti Devi. Respondent no. 5 was not the nominee in the FDRs of the amount which had withdrawn by her. She is claiming the amount on the basis of the oral instruction given by Late Smt. Shanti Devi to the respondent no. 5. Ex. PW1/4 is the certified copy of the order passed in the case titled Sh. Dinesh Bali & Anrs. Vs. Smt. Raj Rani in Suit No. 256/98 whereby the original FDRs were handed over to Smt. Raj Rani in the court. Smt. Raj Rani returned the FDR to the petitioner with the understanding that she can file the succession petition for grant of Succession Certificate for which she has no objection. Husband of respondent no. 5 Sh. Bhim Sen Bali married with Smt. Sumitra, who was the real sister of Late Smt. Shanti Devi. Out of the said wedlock two sons were born. Sh. Bhim Sen Bali requested Sh. Suraj Prakash Mehta and his wife Smt. Shanti Mehta (who is the real sister of the deceased Smt. Sumitra) to take care of both the children. Thereafter, children were taken for care by Sh. Suraj Prakash Mehta and Smt. Shanti Devi. In the year 1947, Sh. Bhim Sen Bali married to Smt. Raj Rani in Pakistan. She understands that Sh. Bhim Sen Bali and Smt. Raj Rani took Subhash Bali in their custody and requested Sh. Suraj Prakash Mehta to look after the child i.e. namely Sh. Desh Mitter Bali, till further period. Due to partition, Sh. Bhim Sen Bali Petition No. SC/32864/16 came to India and settled at Delhi and Smt. Suraj Prakash Mehta came to India and settled at Ambala and Sh. Desh Mitter Bali was brought up by Sh. Suraj Prakash Mehta and Mrs. Shanti Devi, who took care of Sh. Desh Mitter Bali and his education. Three children were born out of the wedlock of the deceased with her. The question of Adoption is subjudice before the Civil Court. Her husband has remained in the custody of Sh. Suraj Prakash Mehta and Smt. Shanti Devi and therefore, he has developed love with them as son though, he was not legally adopted and therefore, Smt. Shanti Devi before her death has given oral instruction to Smt. Raj Rani to give the amount of the FDRs to her, who is widow of Desh Mitter Bali. She is entitled to the succession certificate of the amount of the FDRs and further is entitled to the amount which Smt. Raj Rani has withdrawn as per her statement made in her reply dated 10.07.2007 that she has withdrawn the amount of Rs.60,000/ and Rs.30,000/ after the death of Smt. Shanti Devi.
9 During cross examination, PW1 stated that the deceased was sister of mother of her late husband. She was her mother in law. There is no documentary evidence which can established that Late Desh Mitter ever used Bali as his surname. At the time of marriage, Late Desh Mitter used to reside with Smt. Raj Rani as she was like his mother. In the school or college certificate, the name of father of Sh. Desh Mitter was usually entered as Desh Mitter Mehta son of Sh. Suraj Prakash Mehta. Mark A is the certificate of matriculation Petition No. SC/32864/16 examination of Punjab University and Mark B is the intermediate examination of Punjab University clearly shows the name as Sh. Desh Mitter Mehta son of Sh. Suraj Prakash Mehta. She has no written Will of Late Smt. Shanti Devi in her favour. Sh. Suraj Prakash Mehta and Smt. Shanti Mehta died issueless. She admitted that her husband Late Sh. Desh Mitter Mehta resided with Late Sh. Suraj Prakash Mehta and Smt. Shanti Devi till his matriculation and upto the matriculation he was Desh Mitter Mehta and after that it was changed as Desh Mitter Bali. There is no such proof of the said change. She denied that she is the daughter in law of Late Smt. Shanti Devi. She has filed the present petition for grant of Succession Certificate qua the two FDRs in question on the basis of oral Will of Late Smt. Shanti Devi alone. She has filed both the cases abovementioned to take share in the property of Late Sh. Suraj Prakash Meht and to grab the property of Late Sh. Bhim Sen Bali.
10 On the other hand, in order to substantiate her case, respondent herself examined as DW5, she deposed that Late Sh. Desh Mittar Mehta was the adopted son of Late Sh. Suraj Prakash Mehta and Late Smt. Shanti Devi. Sh. Bhim Sen Bali had two sons from the wedlock of his first wife Smt. Sumitra Bali, who had died leaving behind two sons Sh. Subhash Bali and Desh Mittar. After demise of first wife, Sh. Bhim Sen Bali got married with her before the partition of India i.e. before 1947. No child born from the wedlock of the Petition No. SC/32864/16 deceased with her. Sh. Subhash Bali was being looked after and maintained by Sh. Bhim Sen Bali and her as their only son. The parentage of Sh. Desh Mittar Mehta has been recorded as son of Sh. Suraj Parkash Mehta in his school certificate. Petitioner is the daughter in law of the deceased Smt. Shanti Devi wife of Sh. Suraj Prakash Mehta and not the niece of Smt. Shanti Devi. Sh. Desh Mittar Mehta was given in adoption by Sh. Bhim Sen Bali to Sh. Suraj Prakash Mehta and Smt. Shanti Devi. Sh. Desh Mittar Mehta expired in December 1982. The amount of Rs.30,000/ lying in the FDR was encashed by her after the death of Smt. Shanti Devi as she was the nominee in this FDR. Rest of the FDR of Rs.70,000/, Rs.70,000/ and Rs.60,000/ left alongwith valuables/articles and documents of property were handed over to the petitioner being the daughter in law of Smt. Shanti Devi by her as directed by Smt. Shanti Devi. One FDR of Rs.60,000/ was also encashed by her. There is no oral Will nor any such fact has been mentioned by the petitioner in her another suit filed in 1998 titled as Sh. Dinesh Bali Vs. Raj Rani & Ors. and the said case was dismissed by the Ld. Court on 05.03.2008, the certified copy of the same is Ex. DW5/2 and that order was upheld and the same was again dismissed, the certified copy of the same is Ex. DW 5/3. An appeal against the said order was also dismissed, the copy of the same is Ex. DW5/4.
11 During cross examination, DW5 Smt. Raj Rani stated that Petition No. SC/32864/16 she got married to Sh. Bhim Singh Bali somewhere in 1945. Sh. Bhim Singh Bali was having two children namely Sh. Subhash Bali and Sh. Desh Mittar. Sh. Desh Mittar was adopted by Sh. Suraj Prakash Mehta and Smt. Shanti Devi before her marriage by Sh. Bhim Singh Bali. She could not tell as to whether there was any Adoption Deed was executed to such effect. Her husband never visit or paid any maintenance to Sh. Desh Mitar (the adoption son). From the day of her marriage till today, she has not seen any document pertaining to the said Adoption. Sh. Desh Mitar Mehta was becoming arrogant in nature so his adopted father Sh. Suraj Prakash Mehta sent Sh. Desh Mitar to his original parents/father at the residence of Sh. Karol Bagh, Delhi for higher studies at college. The petitioner is the daughter of her real elder sister. The petitioner was got married to Sh. Desh Mitar. At the time of Adoption, Sh. Suraj Prakash Mehta and Smt. Shanti Devi were residing at Lahore, Pakistan. She admitted that Smt. Shanti Devi told her that all her property whether movable or immovable shall be divided among the children of the petitioner after her death and not to be given to the petitioner as the children of petitioner are grand children of Smt. Shanti Devi. She never told Smt. Shanti Devi to transfer the said FDR in the name of petitioner or her children. Petitioner never take care or worried for Smt. Shanti Devi. The petitioner was admitted Smt. Shanti Devi in a hospital at Mohan Nagar, Ghaziabad (UP). Even the petitioner also got her treated at the same hospital for the treatment of Thyorid. She has handed over all Petition No. SC/32864/16 the three FDRs of Rs.2,00,000/ to the petitioner i.e. Rs.70,000/, Rs.70,000/ and Rs.60,000/. She had kept with her Rs.30,000/ which was adjusted by her against the treatment and funeral expenses whereas Smt. Shanti Devi used to pay Rs.300/ per month in respect of the treatment and maintenance of Smt. Shanti Devi. She could not tell the exact amount spent by her. The FDR of Rs.60,000/ was also encashed by her on the basis of the nomination at the request of the petitioner.
12 I have perused written submissions filed by both the parties and perused the record carefully.
13 It is contended by the Ld. Counsel for petitioner that respondents no. 2 to 4 are the children of petitioner, who have given their no objections to grant of Succession Certificate in favour of the petitioner. During the pendency of the petition, respondent no. 5 had expired. The deceased expired without executing any Will or testament. Petitioner is entitled to get the succession certificate being the niece of the deceased as also on the basis of oral will of the deceased.
14 Per contra, it is contended by the ld. Counsel for respondent that the name of the petitioner is Smt. Neelam Mehta and not Smt. Neelam Bali, who is widow of Late Sh. Desh Mittar Mehta.
Petition No. SC/32864/16 Petitioner is not the niece of the deceased. The deceased had not made any oral Will and as per Indian Succession Act, 1925 "Hindus cannot made an oral privileged Will. There is no documentary proof to show that her late husband ever used "Bali" as his surname. Rather, the petitioner herself admitted that in documents Mark A to D, the name of father of her deceased's husband had been mentioned as Desh Mittar Mehta son of Sh. Suraj Prakash Mehta. No oral Will nor any such fact has been mentioned by the petitioner in her another suit titled as Sh. Dinesh Bali Vs.Raj Rani & Ors. which was dismissed and the appeal was also dismissed.
15 It is no longer res integra that succession petitions are to be decided summarily. Sec. 373 of the Indian Succession Act provides that a succession petition is to be decided in a summary manner and even if court cannot decide the right to the certificate without determining questions of law or fact which may seem to be too complicated and difficult for determination in a summary proceedings, the Court may nevertheless grant a certificate to a person if he appears to be the person having prima facie the best title thereto. Thus U/s. 373 of Indian Succession Act, only prima facie case is to be seen and other questions of law and fact which may be complicated are to be decided by a regular civil court.
In the case of Madhvi Amma Bhawani Amma and Petition No. SC/32864/16 others, Appellants Vs. Kunjikutty Pillai Meenakshi Pillai and others, Respondents AIR 2000 Supreme Court 2301=2000 AIR SCW 2432 it was held that "subsec. (3) of S. 373 of Succession Act which deals with procedure for grant of certificate reveals two things, first adjudication for grant of certificate is summary proceedings and secondly if the question of law and fact are intricate or difficult, it could still grant the said certificate based on applicants prima facie title. In other words the grant of certificate under it is only a determination of prima facie title. This as a necessary corollary confirms that it is not a final decision between the parties. So, it cannot be construed that mere grant of such certificate or a decision in such proceeding would constitute to be decision on an issue finally decided between the parties. If that be so the principle of res judicata cannot be made applicable."
16 The case of the respondent no. 5 Smt. Raj Rani is that the husband of the petitioner namely Sh. Desh Mittar Bali was adopted by Sh. Suraj Prakash Mehta and Smt. Shanti Devi, therefore, the said adoption has severed all the relations of Sh. Desh Mitter Bali from the family of Sh. Bhim Sen Bali and Smt. Sumitra Bali. On the other hand, the case of the petitioner is that deceased Smt. Shanti Devi had made an oral Will in her favour. Her petition also stated that she is also the Niece of the deceased. A careful perusal of the evidence on the record show that although the respondent no. 5 Smt. Raj Rani has talked about the adoption of Sh. Desh Mitter Bali by deceased Smt. Shanti Devi and her husband Sh. Suraj Prakash Mehta, but in cross examination she stated that no Adoption Deed was executed regarding the alleged adoption. She also could not tell the date and the year Petition No. SC/32864/16 when the deceased adopted Sh. Desh Mitter Bali. Therefore, this claim of the respondent no. 5 Smt. Raj Rani that Sh. Desh Mitter Bali was adopted by Sh. Suraj Prakash Mehta and deceased Smt. Shanti Devi could not be substantiated on the record.
17 In my opinion, had there has been some substantial evidence on the record regarding the adoption of Sh. Desh Mitter Bali by the deceased, it would have gone against the respondent no. 5. It is well settled law that in the adoption, all the natural ties of the child adopted is severed from the natural family from the date of adoption. No evidence has been led regarding the same.
18 As far as the claim of the petitioner is that she is the Niece of the deceased as well as deceased had executed an oral Will in her favour, I am of the considered opinion, that she had failed to prove the same that she is the Niece of the deceased. No evidence brought on the record that she is Niece of the deceased. No relation has been disclosed between the petitioner and the deceased. Therefore, the claim of the petitioner that she is the Niece of the deceased is not substantiated. So far as the oral Will executed by the deceased is concerned, the same is not valid Will. As per Section 65 of the Indian Succession Act, any soldier being employed in an expedition or engaged in actual warfare or any mariner being at sea, may, if he has Petition No. SC/32864/16 completed the age of eighteen years, dispose of his property by a Will made in the manner provided in section 66. Such Wills are called privileged Wills. Admittedly, the claim of the petitioner is not that of the Privileged Will. Accordingly, the claim of the petitioner is rejected.
19 The next question arises whether Smt. Raj Rani can be granted any share in the estate of the deceased. The answer is in an emphatic NO. The reason of denial of any estate of the deceased Smt. Shanti Devi in favour of Smt. Raj Rani, respondent no. 5 is the legal provision as enshrined Under section 15 of The Hindu Succession Act. The Section of 15 of The Hindu Succession Act is reproduced here as under : "15. General rules of succession in the case of female Hindus. (I) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,
(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
Petition No. SC/32864/16
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in subsection (I), ................"
20 The Section provides the rule of succession in the case of female Hindu. The property of any female Hindu, who dies intestate shall devolve firstly to the sons and daughters (including the children of any predeceased son or daughter) and the husband and in absence of either of them. Secondly, it will devolve upon the heirs of the husband. In this case, it is clearly from the record that deceased Smt. Shanti Devi was married to Sh. Suraj Prakash Mehta, who has also expired. There is nothing on the record brought by any of the party whether the husband of the deceased was survived by any legal heir or not; nor it has been stated by respondent no. 5 that husband of the deceased namely Sh. Suraj Prakash Mehta was not survived by any of the legal heirs. In absence of any categorical statement regarding nonsurvival of any legal heir of the husband of the deceased, in my opinion, the estate of the deceased can not be given to the respondent no. 5, who would have been legal heir of the father of the deceased. Even nothing has been brought on the record regarding the father and mother of the deceased. In view of the aforesaid observations, the respondent no. 5 also can not be given any share from the estate of the deceased. Accordingly, petition is liable to be dismissed, which stands dismissed.
Petition No. SC/32864/16 File be consigned to Record Room.
Announced in the open court (HEM RAJ)
on 15.04.2017 Administrative Civil JudgeCum
Additional Rent Controller (Central)
Delhi.
Petition No. SC/32864/16
SC/32864/16
15.04.2017
Present : None.
Vide separate judgment of even date, it is held that the present petition is stands dismissed.
File be consigned to Record Room.
(Hem Raj) ACJ/ARC (Central) Delhi/15.04.2017 Petition No. SC/32864/16