Delhi District Court
Sh. Jaswant Lal Aneja vs State & Others on 28 March, 2014
1
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. DISTRICT JUDGE
(WEST)02, TIS HAZARI COURTS:DELHI
M No. 39/10
in
PC No. 361/06/00
Unique ID case No. 02401C0529802009
Sh. Jaswant Lal Aneja ... Petitioner
Vs.
State & Others ... Respondents
ORDER
Vide this order, I shall dispose of an application u/s 76 of Indian Succession Act r/w 151 CPC moved on behalf of the applicants i.e petitioner, objectors and beneficiaries.
2. Brief facts necessary for the disposal of the present application are that a petition u/s 276/278 for grant of Probate/ Letter of Administration in respect of Will dated 10.07.1998 of late Sh. Om Prakash Kapoor was filed on behalf of the petitioner Sh. Jaswant Lal Aneja and after the trial, the said petition was allowed vide judgment dated 16.10.2006 passed by one of the Ld. Predecessors of this court and it was ordered that Probate be granted to the petitioner in respect of the above said Will dated 10.07.1998 with the copy thereof annexed thereto in respect of the M No. 39/10 in PC No. 361/06/00 1/9 2 property mentioned in Schedule 'A' and 'B' of the petition subject to his furnishing requisite court fee as per valuation report of the Collector, Administration Bond and Surety Bond.
3. The Objectors preferred an appeal against the above said judgment dated 16.10.2006 passed by one of the Ld. Predecessors of this court and the said appeal was disposed of vide order dated 29.08.2008 passed by the Hon'ble High Court of Delhi in FAO No.364365/2006.
The operative portion of the abovesaid order dated 29.08.2008 passed by Hon'ble High Court of Delhi reads as under : " It has been agreed by all concern that property bearing No. 24C, DDA LIG Flats, Taimur Nagar, Delhi shall go the petitioners who had purchased the same from the deceased, namely, late Sh. Om Prakash Kapoor. This part of the settlement is contained in Para 5 of the application.
In view of the settlement, the appellant is permitted to withdraw the appeal. The parties shall be at liberty to move the concerned Probate Court to seek necessary modification in the Probate order dated October 16, 2006. The appeal is disposed of "
4. Thereafter, the petitioner/applicant along with the beneficiary and objectors filed an application u/s 151 CPC before the Ld. Predecessor of this court for modification of Probate in accordance with Order dated 29.08.2008 passed by Hon'ble High Court of Delhi in FAO No.364365/2006.
Upon filing of the above said application, original file of the case M No. 39/10 in PC No. 361/06/00 2/9 3 bearing PC No.361/06/00 was summoned from the record room by one of the Ld.Predecessor of this court and accordingly, the said file has been received.
The above said application was disposed of vide order dated 05.03.2011 passed by Ld. Predecessor of this court.
The operative portion of the above said order dated 05.03.2011 passed by Ld. Predecessor of this court reads as under: " In the light of order dated 29.08.2008 of Hon'ble High Court, the judgment dated 16.10.06 of my ld. Predecessor court deserves to be modified and modified to the extent that the property bearing no. 24C, Taimur Nagar, New Delhi be deleted from the array of the properties as mentioned in Schedule A. Considering the entire facts and circumstances, there is no requirement to pass fresh judgment. However, noting in this regard is given on the foot of the judgment dated 16.10.2006 of my Ld. Predecessor court. The application stands disposed of accordingly. "
5. In the meantime, the present application u/s 76 of Indian Succession Act r/w Section 151 CPC has been moved on behalf of petitioner, Objectors and beneficiaries praying therein that the mistake in the name of legatee may be corrected from Arya Samaj Welfare Society for Children (Orphans), Daryaganj New Delhi to Arya Anathalya (Daryaganj).
6. I have heard the arguments on the aforesaid application u/s 76 of Indian Succession Act r/w Section 151 CPC put forward by the Ld. counsel for the applicants. I have also carefully perused the Written Arguments filed on behalf of M No. 39/10 in PC No. 361/06/00 3/9 4 the applicants as well as case law i.e. judgment dated 06.12.2005 of Hon'ble High Court of Allahabad in Testamentary case No. 5 of 2004, judgment dated 15.06.2011 of Hon'ble High Court of Gauhati in Testamentary Appeal No.9 of 2005, ILR 1878 Volume IV, 1992 (3) All ER, AIR 2009 SC 2136, 2006 (13) Scale 317, AIR 2008 SC 225, 2009 (5) SCC 634 and 1967 (2) SCR 18 relied upon by ld. counsel for the applicants.
7. It has been submitted by ld. counsels for the applicants that the beneficiaries including the one under question namely Arya Anathalaya was being represented and appeared before the Hon'ble High Court of Delhi and their appearance was duly recorded in the order dated 29.8.2009. It is further submitted that in fact there is no organization in the name of Arya Samaj Welfare Society for Children (Orphan) Daryaganj as is even apparent from the report of SDM of the area. It is submitted that only organization of a similar name and identity is Arya Anathalya in the said area. It is further submitted that the discrepancy in the name of the organization which is wrongly mentioned in the testament/Will of late Sh.Om Prakash Kapoor shall cause hindrance in the proper discharge of Will of late Sh. Om Prakash Kapoor for which purpose the present anomaly in the name deserves to be rectified. It is submitted that the change in the name of the beneficiary as specified in the application shall in no manner change the contents of the Will and will clarify the ambiguity left by the deceased in the Will which anomaly this court is competent to correct and it has been prayed that the name of beneficiary as mentioned in the Will may be changed from Arya Samaj Welfare Society for Children (Orphan) M No. 39/10 in PC No. 361/06/00 4/9 5 Daryaganj, New Delhi to Arya Anathalaya Daryaganj, New Delhi.
8. I have carefully considered the submissions made on behalf of the applicants and have carefully gone through the record of the case.
9. The present application u/s 76 of Indian Succession Act r/w 151 CPC for correction in the name of legatee/beneficiary from Arya Samaj Welfare Society for Children (Orphans), Daryaganj New Delhi to Arya Anathalya (Daryaganj) in the probate and the instrument on which the said probate is granted, has been moved on behalf of the applicants i.e petitioner, objectors and beneficiaries.
10. It is being submitted on behalf of the applicants that in the Will dated 10.7.1998 of testator late Sh. Om Prakash Kapoor the name of the legatee/ beneficiary has been wrongly mentioned as Arya Samaj Welfare Society for Children ( Orphan), Daryaganj, although there was no such organization in the name of Arya Samaj Welfare Society for Children ( Orphan) as located in Daryaganj and the executor and beneficiaries could only locate Arya Anathalya in the said locality. It is further submitted that by way of present application, the applicants are seeking only a change in the name of legatee/beneficiary so that the apportionment of the assets can take place as per the wishes of the deceased and that change of name of legatee/beneficiary in no way changes the contents of the Will and it would in fact clarify the ambiguity left by the deceased in his Will and it is being prayed that beneficiary/legatee in the probate and instrument on which the probate is granted M No. 39/10 in PC No. 361/06/00 5/9 6 may be rectified in accordance with provisions Section 76, 261 and 295 of Indian Succession Act r/w section 51 to 153 of CPC.
11. The instant application has been moved on behalf of the applicants in accordance with the provisions of section76 of Indian Succession Act and it reads as under:
76. Misnomer or misdescription of object (1) Where the words used in a Will to designate or describe a legatee or a class of legatees sufficiently show what is meant, an error in the name or description shall not prevent the legacy from taking effect.
(2) A mistake in the name of a legatee may be corrected by a description of him, and a mistake in the description of a legatee may be corrected by the name.
In view of the above provisions of section 76 of Indian Succession Act, it is evident that an error in the name or description of a legatee shall not prevent the legacy from taking effect and a mistake in the name or description of legatee can be corrected.
Further, section 261 of Indian Succession Act deals with the error that may be rectified by the court and it provides as under :
261. What errors may be rectified by Court Errors in names and descriptions, or in setting forth the time and place of the deceased's death, or the purpose in a limited grant , may be rectified by the Court and the grant of probate or letters of administration may be altered and amended accordingly.
M No. 39/10 in PC No. 361/06/00 6/9 7 In addition to above, section 295 of Indian Succession Act deals with procedures in contentious cases and it provides that in any case before the District Judge in which there is contention, the proceedings shall take , as nearly as may be, the form of a regular suit according to the provisions of Code of Civil Procedure, 1908 in which the petitioner for probate or letters of administration, as the case may be , shall be the plaintiff and the person who has appeared to oppose the grant shall be the defendant.
In view of the above, it is clear that in contentious cases pertaining to probate or letter of administration, the procedure which is generally required to be adopted shall be, as nearly as possible, the procedure in accordance with the provisions of Code of Civil Procedure, which includes the provisions pertaining to amendment of judgment, decree or orders as provided in section 152 CPC, general power to amend as prescribed u/s 153 CPC as well as inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of process of court as is evident from the provisions of section 151 CPC.
Further, in the case titled as 'Tilak Raj Vs. Baikunthi Devi (cited as AIR 2009 SC 2136)' it has been laid down by the Hon'ble Supreme Court of India that :
"Since the Court exists to dispense justice, any mistake which is found to be clerical in nature should be allowed to be rectified by exercising inherent power vested in the Court for subserving the cause of justice. Whatever is intended by the Court while passing the order or decree must be properly reflected therein otherwise it would only be destructive of the principle of advancing the cause of justice.M No. 39/10 in PC No. 361/06/00 7/9 8
In such matters, the Courts should not bind itself by the shackles of technicalities."
12. In the present case, it is submitted on behalf of the applicants that there was no such organization in the name of Arya Samaj Welfare Society for Children ( Orphan) as located in Daryaganj and the executor and beneficiaries could only locate Arya Anathalya in the said locality. It is further submitted that in the Will dated 10.7.1998 of testator late Sh. Om Prakash Kapoor the name of the legatee/ beneficiary has been wrongly mentioned as Arya Samaj Welfare Society for Children ( Orphan), Daryaganj and it is prayed that the said beneficiary/legatee in the probate and instrument on which the probate is granted may be rectified as Arya Anathalya, Daryaganj.
It is pertinent to mention here that upon filing of the present application u/s 76 of Indian Succession Act r/w section 151 CPC, a notice was also issued to the concerned Collector and his report in respect of the facts mentioned in the said application was called and accordingly, a report in this regard has been received from SDM, Daryaganj.
The aforesaid report of SDM,Daryaganj qua the present application reads as under:
1. That there is no Arya Smaj Welfare Society for children ( orphan) in existence in the area of Jama Masjid.
2. That only orphanage in the name of Arya Anathalaya is working w.e.f. 1918 at 1488, Pataudi House, Darya Ganj, New Delhi110002 running the following M No. 39/10 in PC No. 361/06/00 8/9 9 institutions:
(i) Arya Anathalaya
(ii) Arya Bal Grah
(iii) Arya Kanya Sadan
(iv) Rani Dutta Arya Vidyalya In view of the above, it is evident that the submissions/averment qua the name of the legatee/beneficiary made on behalf of applicants are also corroborated by the aforesaid report of SDM, Daryaganj.
Hence, in view of the above and in view of the material on record, it will be expedient in the interest of justice to make correction in the name of above said legatee/beneficiary in the probate and the instrument on which the said probate is granted, to give proper effect to the legacy as well as the wishes of the deceased.
13. Thus, in view of the above discussion and observations, the name of the above said legatee/beneficiary be read as 'Arya Anathalya' instead of Arya Samaj Welfare Society for Children ( Orphan), Daryaganj in the probate as well as the instrument on which the said probate is granted in this case.
Accordingly, the present application u/s 76 of Indian Succession Act r/w 151 CPC moved on behalf of the applicants i.e petitioner, objectors and beneficiaries stands disposed of.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 28.3.2014) ADJ02 (West)
Tis Hazari Courts Delhi
28.3.2014
M No. 39/10 in PC No. 361/06/00 9/9
10
M No. 39/10 in PC No. 361/06/00 10/9
11
M.No.39/10
28.3.2014
Present : None.
Vide separate order , announced in the open court, the present application u/s 76 of Indian Succession Act r/w 151 CPC moved on behalf of the applicants i.e petitioner, objectors and beneficiaries have been disposed of.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 28.3.2014) ADJ02 (West)
Tis Hazari Courts Delhi
28.3.2014
M No. 39/10 in PC No. 361/06/00 11/9