Delhi District Court
Sh. Deepak Kukreja vs State Of Nct Of Delhi on 5 May, 2017
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 150/10/07
New P.C. No. 16014/16
Sh. Deepak Kukreja
S/o Late Shri Charanjeet Lal Kukreja
R/o H-2553, Second floor,
Sector-49, Sainik Colony,
Faridabad, Haryana
..........Petitioner
Vs.
1. State of NCT of Delhi
2. Smt. Ram Pyari ( now deceased)
W/o Sh. Inder Lal
through her legal heirs
(i) Sh. Manohar Singh Arora
S/o Late Smt. Ram Pyari
R/o Raj Rexina House,
Town Hall, Khandwa, M.P.
(ii) Mrs Rita Gulati
D/o Late Smt. Ram Pyari
W/o Sh. Iqbal Shanker Gulati
R/o #21, Shrinagar Colony,
Khandawa, M.P.
(iii) Mrs Anita Khanuja
D/o Late Smt. Ram Pyari
W/o Sh. Suresh Khanuja
R/o # 21, Medical Colony,
Khandawa, M.P.
(iv) Smt. Sunita Bhola
D/o late Smt. Ram Pyari
W/o Late Sh. Rajesh Bhola
# 47, Nephier Town
Near Naveen Vidya Bhawan School,
Jabalpur, M.P.
PC No. 150/10/07 Deepak Kukreja Vs State & Ors 1/19
3. Smt. Shanti Devi ( Since deceased)
W/o Sh. Hans Raj
R/o 18/69, West Punjabi Bagh,
New Delhi- 110026
......Respondents
Date of institution of the case : 22.10.2007
Date reserved for judgment on : 01.05.2017
Date of pronouncement of judgment: 05.05.2017
JUDGMENT:
1 A petition under Section 278 of the Indian Succession Act, 1925 for the grant of Probate/letter of administration in respect of estate of deceased Smt. Sheela Rani filed by the petitioner.
2 In brief the facts are that late Smt. Sheela Rani W/o late Sh. Ajit Lal, R/o H-4/8, Model town-II, Delhi (hereinafter referred to as "deceased") was Hindu governed by Hindu Succession Act and died on 02.10.1996, at Delhi leaving behind legal heir i.e Smt. Ram Pyari W/o Sh. Inder Lal, respondent no. 2 and Smt. Shanti Devi, respondent no. 3 being the sisters of deceased.
3 It is stated that deceased before her death had executed a will dated 08.08.1996 whereby bequeathed of her movable and immovable properties including property no. H-4/8, Model Town-II, Delhi in favour of her son Sh. Ravi Kant Kukreja. It is further mentioned in the will that in case Ravi Kant Kukreja expired then the properties shall go to Smt. Reena Narula, W/o Sh. Ravi Narula, R/o 10, Tara Crescent, Markham, ON L3S4S7. She has no right to sell or rent or rent out the property and can it use only residential purposes whenever came to Delhi.
PC No. 150/10/07 Deepak Kukreja Vs State & Ors 2/19 4 It is further stated that whenever Smt. Reena Narula also expires, then in that eventuality all the movable and immovable properties including property No. H-4/8, Model Town- II, Delhi shall be owned and possessed by the petitioner herein, who shall have all the rights whatsoever in respect of all the properties of late Smt. Sheela Rani.
5 It is further stated that Sh. Ravi Kant Kukreja died on 13.07.1999 and Smt. Reena Narula also expired on 29.05.2007. Therefore the properties came into the hands of petitioner and value of the property as stated to be Rs. 18,50,000/-. Petitioner seeks probate/letter of administration in respect of Will dated 08.08.1996 in favour of the petitioner.
6 Upon filing of petition, notices were issued to all the legal heir of the deceased, respondents, state through collector and citation to general public got published in daily newspaper "Hindustan Times ".
7 The valuation report in respect of immovable property bearing No. H-4/8, Model Town-II, Delhi was called from the concerned Collector and the said valuation report has been filed on behalf of Tehsildar. The value of the aforesaid property has been assessed to the tune of Rs. 1,02,61,200/- ( Rupees One Crore Two Lakh Sixty One Thousand Two Hundred Only).
8 As per record respondent no. 3 (wrongly typed as respondent no,. 2) Shanti Devi represented through one Sh. Rajan Tyagi Advocate who filed reply. As per order dated 18.12.2012 respondent no. 2 Smt. Ram Pyari also expired on PC No. 150/10/07 Deepak Kukreja Vs State & Ors 3/19 15.05.2012 and one Manohar, L.Rs represented her through advocate Sh. Shazad Hussain.
9 As per record the order dated 14.05.2008 respondent No. 3 was represented through Prikshit Rai, however later on record shows that respondent no. 2 not served. As per record respondent no. 2 served with great difficulty after about five years of the filing of the petition.
10 As per record respondent no. 3 Shanti Devi died on 23.04.2009 the petitioner did not take steps to impelad her Legal heirs, therefore, proceedings abated vide order dated 14.12.2009 and her name was directed to be deleted.
11 Smt. Shanti Devi, respondent no. 3 ( now deceased) filed detailed reply and preliminary objections taken that petition is bad for non-joinder of necessary parties i.e legal heir of another deceased sister late Smt. Inderwati not impleaded. Respondent Shanti Devi had been issued letter of administration of property of deceased testator as per last will by the court of Shri Ravinder Dudeja, the then Ld. ADJ, Delhi by virtue of sale deed. The property in question transferred to Smt. Saroj Tyagi and Mrs Manju Lal, therefore, petition is liable to be dismissed. On merits all the averments are denied. It is stated that deceased testatrix did not execute any will in favour of petitioner as alleged. The alleged will is fabricated and false. The petitioner has given wrong date of death of Ravi Kant Kukreja and value of the property. Petitioner is well aware of the grant of letter of administration in favour of respondent no. 2, therefore, petition is liable to be dismissed.
PC No. 150/10/07 Deepak Kukreja Vs State & Ors 4/19 12 Petitioner filed detailed rejoinder to the objections of respondent no. 3 ( wrongly mentioned as respondent no. 2). It is stated that if the address of legal heirs of late Smt. Inderwati provided by the respondents they wish to include as respondents. It is stated that respondent no. 2 has neither stated the date of alleged will nor copy thereof placed on record. The said will is forged and fabricated document. The signatures of the deceased testatrix have been forged, therefore, the will is void ab-initio. Respondents has committed a fraud in order to usurp the property of the petitioner. On merit all the averments are denied.
13 It is stated that signatures of the deceased testatrix have been appended by some other person and her actual signatures are clearly distinguishable from the signatures on the alleged will, therefore, respondent herself has tried to hide the said alleged will. The will executed on 08.08.1996 filed by the petitioner is a genuine document. It is further stated that deceased and her son Ravikant Kukreja, Sh. Charanjit Lal Kukreja and Smt. Reena Narula is the daughter and petitioner were very affectionate relations. The deceased testatrix had no contact at all with any of her sisters and family members and none of the family members ever visited during her life time. It is stated that a false and wrongly reply filed and the alleged will is forged and fabricated document.
14 It is pertinent to mention here that as per record respondent no. 2 Smt. Ram Pyari since the filing of the petition could not able to be served till 18.12.2012. As per record on 18.12.2012 one Manohar, one of the L.Rs respondent no. 2 Smt. Ram Pyari appeared and apprised the court that she has expired PC No. 150/10/07 Deepak Kukreja Vs State & Ors 5/19 on 15.05.2012 and placed on record the photocopy of her death certificate.
15 Thereafter petitioners after almost one year filed an application under order 22 rule 4 CPC read with Section 151 CPC for bringing on record the L.Rs of deceased, respondent no. 2 Ram Pyari. The said application vide order dated 26.10.2015 was decided whereby L.Rs of respondent no. 2 Smt. Ram Pyari since deceased i.e Smt. Rita Gulati, Mrs Anita Khanuja and Smt Sunita Bhola also impleaded as party in addition to Manohar Lal. Thereafter court granted time to file written objections on behalf of L.Rs of respondent no. 2. The L.Rs, namely, Smt. Rita Gulati, Mrs Anita Khanuja and Smt Sunita Bhola failed to file any written objections, therefore, their right was closed vide order dated 16.12.2015.
16 Thereafter the above said Legal heirs of respondent no. 2 moved an application under Section 151 CPC for taking on record the objections on record and vide order dated 24.09.2016 same was dismissed.
17 In the peculiar facts and circumstances of the case where L.Rs of respondent no. 2 Smt. Rita Gulati, Mrs Anita Khanuja, Smt Sunita Bhola and Manohar Lal did not contest the petition and failed to file written objections and respondent no. 3 Shanti Devi who filed written objections but proceedings stands abated, therefore, there was no material on record for contest of the petition, hence issues were not framed.
PC No. 150/10/07 Deepak Kukreja Vs State & Ors 6/19 18 Petitioner in order to prove his case examined himself as PW-1 and tender his evidence by way of affidavit Ex. PW-1/A and rely upon the certified copy of death certificate of Smt. Sheela Rani as Ex. PW-1/1 ( OSR).
19 Petitioner further examined Smt. Veena Rani who tendered her evidence by way of affidavit Ex. PW-2/A. The evidence on behalf of petitioner was closed vide order dated 3.11.2016. Thereafter although opportunity granted to L.Rs of respondent no. 2 ( since deceased) but since they did not file any objections, therefore, their right was also closed vide order dated 21.11.2016 to lead evidence.
20 It is pertinent to mention here that although PW-1 and PW-2 cross-examined on behalf of L.Rs of respondent no. 2 (I) but this cross-examination cannot be read as L.Rs of respondent no. 2 not filed any written objection on record.
21 I have heard Sh. Saurabh Dugal, counsel for the petitioner and also gone through the written submissions filed on behalf of L.R. No. 1 of respondent no. 2 and perused the record.
22 The present case is peculiar case and having unusual facts and circumstances as mentioned hereinabove that respondent no. 3 Smt. Shanti Devi (since deceased) filed objections but proceedings abated because of her death and petitioner could not implead her L.Rs.
23 The other respondent no. 2 Smt. Ram Pyari also died and her L.Rs Sh. Manohar Singh Arora, son, Mrs Rita Gulati, Mrs PC No. 150/10/07 Deepak Kukreja Vs State & Ors 7/19 Anita Khanuja, and Smt. Sunita Bhola, daughters failed to file objections and their right was closed, therefore, in the absence of legal objections no issues have been framed. The law is well settled the propounder of the will has to discharge the onus of proving the case that deceased/testatrix, Smt. Sheela Rani had executed a legal and last Will dated 8.8.1996.
24 In order to discharge the burden, petitioner examined himself as PW-1 and filed affidavit. In the affidavit Ex. PW-1/A, PW-1 Sh. Deepak Kukreja testify that deceased Sheela Rani died on 02.10.1996 and proved the original death certificate Ex. PW- 1/1. He further proved the legal heirs of deceased Sheela Rani, namely Smt. Ram Pyari and Smt. Shanti Devi both were sisters of deceased testatrix.
25 He further deposed that on 08.08.1996 a Will was executed by the deceased testatrix whereby bequeathing of her movable and immovable properties including house No. H-4/B, Model Town-II, Delhi in favour of her son Ravi Kant Kukreja. However, further affirmed that if Sh. Ravi Kant Kukreja expires and all the properties goes to his wife Smt. Reena Narula, R/o 10, Tara Cresent, Markham, On L3S4S7, Canada. However, she has no right either to sell or rent out the said property and the property could be used only for residential whenever come back to Delhi. In the will, it is further mentioned that in case Smt. Reena Narula expires then all movable and immovable properties shall own and possess by the petitioner who has all the right whatsoever and exhibited the Will Ex. PW-1/2. He further deposed that Sh. Ravi Kant Kukreja on 13.07.1999 and Smt. Reena Narula died on 29.5.2007 and properties came to his hand.
PC No. 150/10/07 Deepak Kukreja Vs State & Ors 8/19 26 He further deposed in the affidavit that on the basis of one alleged will of deceased/testatrix late Smt. Sheela Rani a Probate was granted from the court of Sh. Ravinder Dudeja, the then Ld. ADJ vide order dated 18.11.2006 and he has no knowledge about the same. He further deposed that deceased/testator had very cordial relations with the petitioner and all the Legal heirs are made party and Legal heirs of deceased testator have filed no objection.
27 Petitioner also examined PW-2 Smt. Veena Rani, attesting witness who also proved her affidavit Ex. PW-2/A. In the affidavit she deposed that late Sheela Rani, deceased was her Jaithani ( sister-in-law) and died on 02.10.1996. Deceased had executed a Will dated 8.8.1996 and bequeathed her movable and immovable properties including House No. H-4/B, Model Town-II, Delhi in favour of her son Rani Kant Kukreja. She further affirmed that as per said Will, if Sh. Ravi Kant Kukreja expires, the properties shall go to Smt. Reena Narula, R/o 10, Tara Cresent, Markham, On L3S4S7, Canada. However, she has no right either to sell or rent out the said property and the property could be used only for residential whenever she come back to Delhi. In the will it is further mentioned that in case Smt. Reena Narula expires, then in that eventuality all the movable and immovable properties including the property in question shall owned and possess by Sh. Deepak Kukreja who has all the right whatsoever in respect of the all the properties of deceased. She proved the Will already exhibited as Ex. PW-1/2. She further deposed that Sh. Ravi Kant Kukreja on 13.07.1999 and Smt. Reena Narula died on 29.5.2007 and properties came into the hands of petitioner. The deceased had very cordial relations with her and petitioner. The PC No. 150/10/07 Deepak Kukreja Vs State & Ors 9/19 deceased had executed the Will dated 08.08.1996 in her presence and she is one of the attesting witness.
28 The cross-examination conducted by Sh. Rahul Tyagi, counsel for L.Rs of respondent no. 2 of PW-1 Sh. Deepak Kukreja and PW-2 Smt. Veena Rani. However, the law is well settled in this regard where the party has not contested by filing written objections then there is right to cross-examine on factual matrix of the case. But legal arguments can be advanced by such party. Therefore, I am not relying on cross-examination of both the witnesses. Since all the respondents had not filed any written objections, therefore, they were not also allowed to lead any evidence.
29 The law is well settled by Apex court and in order to scrutinize, analyze and examine the testimony of petitioner's witnesses.
30 In order to prove the Will, the propounder has to show that the Will was signed by the testatrix; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testatrix is of feeble mind or is overawed by powerful minds PC No. 150/10/07 Deepak Kukreja Vs State & Ors 10/19 interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testatrix's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. Reliance is placed on H. Venkatachala Iyengar Vs B.N. Thimmajamma, ( (1995) Supp.1 SCR 426 and Rani Purnima Devi Vs Kumar Khagendra Narayan Dev, (1962) 3 SCR 195.
31 The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testatrix has signed the Will and that he had put his signature out of her own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testatrix PC No. 150/10/07 Deepak Kukreja Vs State & Ors 11/19 alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. Reference is made to Benga Behera and Anr. Vs Braja Kishore Nanda and Ors., MANU/SC/7673/2007; Madhukar D. Shende Vs Tarabai Shedage, MANU/SC/00162002; and Sridevi and Ors. Vs Jayaraja Shetty and Ors (2005) 8 SCC 784.
32 In the recent judgment of Apex court in Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615.
"19. The contentious pleadings and the assertions thereupon in the backdrop of the evidence as a whole have been analyzed. The pleading perspective notwithstanding, the purport and play of Section 63 of Indian Succession Act (hereinafter referred to as 'the Act') read with Section 68 and 71 of Indian Evidence Act, 1872 (hereinafter referred to as '1872 Act'), it would thus be apt, nay, imperative to refer to these legal provisions before embarking on the appreciation of evidence to the extent indispensable.
20. Section 63 of the Act and Sections 68 and 71 of the 1872 Act are thus extracted hereunder for ready reference:
20.1 Section 63 of the Act:
63. Execution of unprivileged wills - Every testatrix, not being a soldier employed in an 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 testatrix shall sign or shall affix his mark to the will, or it shall be signed by some other PC No. 150/10/07 Deepak Kukreja Vs State & Ors 12/19 person in his presence and by his direction.
(b) The signature or mark of the testatrix, 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 testatrix sign or affix his mark to the will or has seen some other person sign or will, in the presence and by the direction of the testatrix, or has received from the testatrix a personal acknowledgment 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 testatrix, 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.
20.2 Section 68 & 71 of the 1872 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:
71. Proof when attesting witness denies the execution - If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
21. As would be evident from the contents of Section 63 of the Act that to execute the will as PC No. 150/10/07 Deepak Kukreja Vs State & Ors 13/19 contemplated therein, the testatrix would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testatrix or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testatrix sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testatrix, or has received from the testatrix, personal acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testatrix. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.
22.1 In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso PC No. 150/10/07 Deepak Kukreja Vs State & Ors 14/19 attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.
22.2 These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence.
22.3 Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording PC No. 150/10/07 Deepak Kukreja Vs State & Ors 15/19 the penultimate conclusions. With this backdrop, expedient would be, to scrutinize the evidence adduced by the parties."
33 The law is well settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of free volition of the executants who had voluntarily executed the same after noting and accepting the contents of the Will. Execution of Will is a solemn act of the executants who must own up the recitals in the instrument and there must be clear evidence that the puts his signature in a document after knowing fully its contents. The executant of a document must, after fully understanding the contents and tenor of the document put his signature or affix his thumb impression. In other words, the execution of the document does not mean merely signing but signing by way of assent to the terms of contract of alienation embodied in the document.
34 The petitioner Sh. Deepak Kukreja admittedly filed the present petition on 20.10.2007. The deceased testatrix Smt. Sheela had expired on 02.10.996 just after two months of the execution of Will Ex. PW-1/2 which was executed on 8.8.1996. The petitioner is silent why he filed the present petition after 11 years, therefore, it raises suspicion. Further more the petitioner as well as affidavit of petitioner Ex. PW-1/A is silent how he got the possession of the Will Ex. PW-1/2. It is not clear after the execution of the Will whether deceased testatrix kept the will with herself or handed over to somebody. Nothing brought on record to prove that how petitioner got the possession of the Will. It is highly suspicious circumstances in the present peculiar facts PC No. 150/10/07 Deepak Kukreja Vs State & Ors 16/19 and circumstances of the case. The law is well settled as discussed herein above and also principle laid down by Apex court time and again in Cantana of judgments that petitioner has to satisfy the ingredients of Section 63 of Indian Succession Act. The petitioner examined PW-2 Smt. Veena Rani, whose testimony discussed herein above. She is silent about the role of deceased testatrix in signing the present will and importantly the consequences of signing of will by attesting witness as well as deceased testatrix. PW-2 Smt. Veena Rani also silent about the presence of other witness Smt. Manju Kawatra, whether she was present or not and signed or not signing in the presence of all others. Not only this another vital ingredient is also missing in the testimony of PW-2 Smt. Veena Rani i.e the sound disposing mind of the deceased testatrix. In my considered opinion the petitioner has failed to fulfill the essential ingredients of Section 63 of Indian Succession Act.
35 Another important aspect is peculiar and unusual features of the Will Ex. PW-1/2. Firstly, deceased testatrix has not mention about the execution of any other Will during her life time I.e the will as alleged by respondent no. 3 Smt. Shanti ( since deceased) on which basis she got the letter of administration from the court of Ld. ADJ, Sh. Ravinder Dudeja. It is natural if a person executes a fresh will definitely he/she mentions that he/she had earlier executed a will which specifically requires to be revoked. However, in the present case this important aspect is missing which raises suspicious circumstances.
36 The other important vital aspect of the contents of the Will Ex. PW-2/1 is that she has not mentioned about her PC No. 150/10/07 Deepak Kukreja Vs State & Ors 17/19 husband or any other of her brother or sisters. Surprisingly, she mentioned about the father of the petitioner Sh. Charanjit Lal Kukreja which is unusual features of the Will. It is further pertinent to mention here that the last wishes is shocking that she had perconceived the death of his only son Ravi Kant Kukreja and her daughter-in-law Ms Reena Narula and finally bequeathed to the petitioner. It is un-imaginary that while writing last will any person would preconceived the death of her only son. It creates highly suspicious circumstances. It cannot be ruled out that a Will was not executed during her lifetime, may be after the death of Ms Reena Narula, who was resident of Canada at the relevant time. In my considered opinion the Will Ex. PW-2/1 is surrounded by highly suspicious circumstances which are not dispel by the petitioner.
37 Another important aspect in the present peculiar facts and circumstances of the case that it is admitted by petitioner that he came to know about the grant of letter of administration which is specifically pleaded by Smt. Shanti ( since deceased), respondent no. 3. My ld. Predecessor vide order dated 20.08.2008 called with the file of the case titled as Smt. Shanti Devi Vs State decided on 18.11.2006. I have gone through the record of above said case. There are five legal heirs of the deceased testatrix, Sheela Devi, namely, Smt. Ram Pyari ( since deceased), Shri Arun Sachdeva( Grandson of late Smt. Inderwati ( deceased sister of Smt. Sheela Devi), Smt. Suraksha Rani. Smt. Sudershan and Smt. Kamla Thakural. Whereas petitioner impleaded only two Legal heirs. 38 It is established on record that deceased testatrix not having only two L.Rs but she was having five L.Rs, though the law is well settled in the judgment of Yuv Rajnarain Gorwaney Vs PC No. 150/10/07 Deepak Kukreja Vs State & Ors 18/19 State 2005 (125) DLT 401 and emphasized para 4 of the judgment and the relevant portion of the same is reproduced herein under:
" However, considering all these aspects of the matter, I am of the view that when the Rules prescribe and the law down a particular procedure, the applicant ought to have been made a party in the present proceedings. Moreover, the non-citing of a necessary party can be a ground for revocation of a probate granted under Section 263 of the Indian Succession Act, 1925. If such an eventuality exists, then delay in approaching the court ought not to come in the way of these probate proceedings because after all what the court to do is to determine as to whether the Will in question was, in fact, the Will left by Smt Avinash Pandit. In this view of the matter, the application deserves to be allowed. The said Shri Rajiv Sharma is impleaded as respondent/objector No. 4. The application stands allowed accordingly."
39 In the present case as per this judgment petitioner has concealed the remaining L.Rs and despite knowledge he failed to implead them as party. Therefore, petitioner is not entitled to any relief in the present petition. The present petition also suffers from the legal infirmity as well test of satisfaction of the judicial conscience.
40 On the basis of above observation and discussion, the present petition is dismissed. No order as to cost. File be consigned to record room.
(Announced in the open (SANJAY KUMAR)
court on 5th May, 2017 ADJ-02 (West)
Delhi
PC No. 150/10/07 Deepak Kukreja Vs State & Ors 19/19
PC No. 150/10/07 Deepak Kukreja Vs State & Ors 20/19
Let us peruse the law laid down by Appex
Court. The question for consideration, is whether the petition for grant of 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 clause 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 PC No. 150/10/07 Deepak Kukreja Vs State & Ors 21/19 the change 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 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 confined 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 PC No. 150/10/07 Deepak Kukreja Vs State & Ors 22/19 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.
15 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. KIRANDEEP 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 PC No. 150/10/07 Deepak Kukreja Vs State & Ors 23/19 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.
He relied on In most of the subsequent judgments they followed the principles and referred to this judgment only. Therefore, on the basis of principles laid down in the above said judgment H. Venkatachala Iyengar (Supra) let us examine the present facts and circumstances.
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(Announced in the open (SANJAY KUMAR)
court on 8th February, 2017 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 150/10/07 Deepak Kukreja Vs State & Ors 24/19
PC No. 150/10/07 Deepak Kukreja Vs State & Ors 25/19