* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TEST.CASE NO. 77/2011
% 13th January, 2016
V. SUKUMAR IYER ..... Petitioner
Through: Ms. Sagari Dhanda, Advocate.
versus
THE STATE & ORS. ..... Respondents
Through: None CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This testamentary case is filed by the petitioner seeking probate of the Will of late Dr. V. Mallika, who died at Delhi on 3.5.2011. Petitioner is the real brother of the deceased. Probate is sought of the last Will and testament dated 22.6.2010 of Dr. V. Mallika. Movable properties have been detailed in Annexure 'A' to the petition whereas the immovable properties have been detailed in Amended Schedule 'B' (as amended). Petitioner has been appointed as an executor of the Will dated 22.6.2010 of Dr. V. Mallika and hence the present probate petition.
TEST.CASE NO. 77/2011 Page 1 of 13
2. Annexure 'A' and Amended Schedule 'B' (as amended) containing details of movable and immovable properties read as under:
"ANNEXURE A SCHEDULE OF DEBTS AND SECURITIES S. DESCRIPTION NO. OF DISTINCTIVE FACE MARKET AMOUNT NO. UNITS/ NO. VALUE VALUE SHARE
1. SHARE 200 545541 TO Rs. 10/-
CERTIFICATE 545740
ISSUED BY
STATE BANK
OF MYSORE
2. SHARE 252 1078335 TO Rs. 5/-
CERTIFICATE 1078586
ISSUED BY J.K.
LAXMI
CEMENT
LIMITED
3. SHARE 18 0019918665 Rs. 10/-
CERTIFICATE TO
ISSUED BY 0019918682
INDIAN
METALS &
FERRO ALLOYS
LIMITED
4. SHARE 1 0021801103 Rs. 10/-
CERTIFICATE 12 TO
ISSUED BY 0021801103
RELIANCE 12
INDUSTRIES
LTD.
5. FIXED DEPOSIT RECEIPT 1,40,510/-
RECEIPT NO. 161247
ISSUED BY
TATA MOROTS
LIMITED
TEST.CASE NO. 77/2011 Page 2 of 13
6. SAVING BANK BAL. AS ON
ACCOUNT NO. 2ND JULY
90682010040731 2011 Rs.
WITH 4,01,740.84
SYNDICATE
BANK,
MAULANA
AZAD MEDICAL
COLLEGE, NEW
DELHI
7. SAVING BANK BAL. AS ON
ACCOUNT NO. 2ND JULY
90682170000108 2011 RS.
WITH 1,06,395.73
SYNDICATE
BANK,
MAULANA
AZAD MEDICAL
COLLEGE, NEW
DELHI
8. STATEMENT OF Rs.
ACCOUNT 14,380,785/-
FROM 1ST APRIL AS ON 13TH
2000 TO 16TH MAY 2011
MAY 2011 OF
ICICI BANK
DEMAT
ACCOUNT
BEARING
CLIENT'S I.D.
NO. 30699087
9. STATEMENT OF
DEMAT
ACCOUNT NO.
005112308001 OF
INDUSIND
BANK,
BARAKHAMBA
BRANCH,
CLINENT I.D.
NO. 10580257
TEST.CASE NO. 77/2011 Page 3 of 13
10. ANNUAL
ACCOUNT
STATEMENT OF
FEDELITY
FORM 1.04.2007
TO 31.03.2008
11. ACCOUNT 1,29,813/-
STATEMENT OF +
RELIANCE 45,485/-
MUTUAL
FUNDS
ACCOUNT NO.
40935667391,
41610467872 &
403227583385
12. STATEMENT OF 40,000/-
ACCOUNT OF
SBI FUND SB
90672110000108
FROM 22.8.2005
TO 20.4.2007
13. STATEMENT OF 40,000/-
ACCOUNT OF
STANDARD
CHARTERED
MUTUAL FUND
FOLIO NO.
355942/47 FROM
26.9.2005
31.3.2008
14. STATEMENT OF 70,000/-
ACCOUNT DSP
MERRILL
LYNCH
MUTUAL FUND
ACCOUNT
NO./FOLIO NO.
1036364/49 &
721957/42 FROM
1.4.07 TO SEPT.
2007 AND FROM
1.4.2006 TO
18.1.2007.
TEST.CASE NO. 77/2011 Page 4 of 13
15. HSBC MUTUAL 20,000/-
FUND
STATEMENT OF
ACCOUNT
FOLIO NO.
477363/19.
16. UTI MUTUAL Rs.
FUND 17,076.13 as
INVESTOR I.D. on 6.6.2011
NO. 279284747
17. ICICI Rs. 38,352/-
PRUDENTIAL
MUTUAL FUND
18. SUNDARAM
BNP PARIBAS
LEADERSHIP
FUND
19. LOCKER NO. 721957/42 Rs.
129, 10,00,000/-
SYNDICATE
BANK MAMC,
NEW DELHI
WITH SOME
JEWELLERY
BELONGING TO
DR. V.
MALLIKA
TOTAL APPROX. Rs. 1,63,84,671/-
(ONE CRORE SIXTY THREE LACS EIGHTY FOUR THOUSAND SIX HUDRED SEVENTY ONE ONLY)"
"AMENDED SCHEDULE 'B' IMMOVABLE PROPERTIES S.NO. PARTICULARS MARKET VALUE
1. Flat No. Amazona - 11, First Floor of Rs. 30,00,000/-
"ELDECO GREEN MEDOWS" POCKET c, Sector PI, Greater Noida City, Dist, Gautam Budh Nagar, U.P.
2. Flat No. B-101, (AIIMS Group Housing Rs. 15,00,000/-
Society, Charak Sadan, Vikas Puri, New Delhi.TEST.CASE NO. 77/2011 Page 5 of 13
3. Plot No. H-75, Sujay Block, Sanjay Nagar Rs. 50,000/-
Scheme, Jangarna Sehkari Avas Samiti Limited, Ali Nagar, Khurd, Tehsil, Dist. Lucknow, U.P.
4. Property bearing No. 71, Block D-6, Kendriya Rs. 5,00,000/-
Vihar, Bangalore - 560064.
5. Apartment in the KOSMOS Jaypee Greens, Rs. 13,69,200/-
Noida - 201304, U.P.
TOTAL: Rs. 64,19,200/-
Rupees Sixty Four lacs ninetee thousand and two hundred only)"
3. No objections have been filed to the probate petition and ordinarily the probate ought to be granted inasmuch as the petitioner has led his own evidence as also the evidence of the two attesting witnesses Dr. Ranjana Gondal as PW2 and Dr. Vinod Kumar Gupta as PW3, and all these witnesses have duly proved the execution and attestation of the Will besides the soundness of the mind of the deceased at the time of making of the Will, however, the probate which has to be granted will have to be with certain restrictions as given hereinafter.
4. A reference to the Will dated 22.6.2010, proved as Ex. PW1/3, shows that by this Will the deceased Dr. V. Mallika has bequeathed her entire estate for the purposes of charity. Since this Court proposes to grant a limited period probate of a year, and which is to be extended year by year, it would be necessary to reproduce the entire Will dated 22.6.2010, and TEST.CASE NO. 77/2011 Page 6 of 13 therefore, the said Will is reproduced as under:
"WILL KNOW ALL MEN BY THESE PRESENTS that I Dr. V.
MALLIKA, d/o, Late N.E.Venkatesan, presently residing at my official residence at House No. 10, Type 6, Maulana Azad Medical College Campus, New Delhi-110002, being in full senses and sound mind and good health without being under any coercion or undue influence from any quarter out of my free will and volition do hereby make this my last WILL AND TESTAMENT in New Delhi on this the 22nd day of June Two Thousand Ten A.D. WHEREAS I am a Doctor by profession and have been in Government service since 1975, presently in the Super Administrative Grade holding the post of Director-Professor under the Central Health Services.
AND WHEREAS out of my own income I have acquired immovable properties at different places in India and also have savings and investments in my own name.
AND WHEREAS I am a confirmed unmarried woman and have 4 more years of service left before superannuation and approaching the end of my professional career I have consciously willfully and without any external influence or coercion decided to make and execute the present WILL.
AND WHEREAS I have two sisters and one brother all of whom are well established in life and require no financial assistance or help from me.
AND WHEREAS always being aware and conscious of my responsibilities towards the society and having always cherished the desire to contribute towards welfare of the society to the extent of my abilities, I have now decided to donate my properties and assets to charities in the manner as set out hereinafter:
(a) 20% of my total properties both movable and immovable shall be contributed to the Cancer Institute-Drug Endowment Policy;
(b) further 10% of my total properties both movable and immovable shall be donated to Ramana Ashram at Thiruvannamalai;
(c) further 20% of my total properties both movable and immovable shall be donated towards development of Nolanbai Village in TEST.CASE NO. 77/2011 Page 7 of 13 Tamil Nadu.
(d) the balance shall be donated to charities by the Executor of this Will as found fit and proper by him.
For this purpose of giving effect to the donations and charities mentioned above the Executor of this WILL shall always be free to sell and dispose of my immovable properties if he considers it necessary and realize the consideration money for utilisation towards donations and charities. He shall be entitled to defray the costs and expenses incurred for carrying out such sale out of the consideration amount.
For sake of adequate clarity and avoidance of any ambiguity, I expressly state as under:
That the Executor of this WILL, shall have absolute discretion to decide the best time and manner to dispose off the said assets and shall in doing so exercise the same care and skill as a man of ordinary prudence and integrity would in his own case do.
Further, if the Executor of this WILL has reasonable grounds to believe that certain events have occurred that the beneficiaries do not merit the receipt of the intended donations, may exercise his discretion to change the beneficiary/(ies) to meet the intent of the testator.
I hereby appoint my brother Sh. V. Sukumar Iyer, son of Late N.E.Venkatesan, and resident of 26, Newton Road, 05-03, Newton View, Singapore-307957, with his consent as the sole Executor of this may last Will and Testament and he will take out Probate of this WILL and shall administer my properties in the manner set out in THESE PRESENTS. Executor of this WILL shall be entitled to defray the amount of costs and expenses borne by him in taking out Probate and in administering my properties out of the amount realised from my movable properties.
On the day month and year abovementioned I put my hand signature and seal on this my last Will in presence of the witness named below and they sign in my presence."TEST.CASE NO. 77/2011 Page 8 of 13
5. A reference to the terms of the Will shows that the deceased Dr. V. Mallika/executant did not marry in her life time. She had two sisters and one brother, the brother being the petitioner to this probate petition. All the siblings as per the Will are well-settled in life. Out of the estate of Dr. V. Mallika, 20% of the properties are to be donated to the Cancer Institute- Drug Endowment Policy, 20% of the properties have to be used towards development of Nolanbai Village in Tamil Nadu and 10% of the properties are to be donated to Ramana Ashram at Thiruvannamalai. The balance 50% of the assets are to be given to the executor for being donated to charities by the executor as thought fit and proper by him. Effectively, therefore, the entire estate has been donated by the deceased towards public charities and public purposes. The duty of the executor to whom probate has to be granted would therefore be onerous in a case such as the present considering not only the nature of bequest but also because of the existence of considerable amount of movable and immovable properties of the deceased executant. Annexure 'A' to the petition shows that the value of the immovable properties is Rs. 1,63,84,671/- and Amended Schedule 'B' shows that the deceased executant had five valuable immovable properties, being one flat at Gautam Budh Nagar, U.P., one flat at Vikas Puri, New Delhi, one apartment in the KOSMOS Jaypee Greens, at NOIDA, U.P., one TEST.CASE NO. 77/2011 Page 9 of 13 plot at Ali Nagar in District Lucknow, U.P. and one other property at Kendriya Vihar, Bangalore. Thus, there has to be sincere, thoughtful and honest administration of the estate of the deceased Dr. V. Mallika by the executor/petitioner.
6. I have given above the details of the properties of the deceased, and as to how the executor has to deal with the same so as to use corpus and the usufruct for benevolent purpose, as stated in the Will but it is noted with some amount of concern that surprisingly the petitioner in para 6 of the petition has claimed that by the Will dated 22.6.2010 only half of the properties are given to the charity and other half has been bequeathed in favour of the petitioner/executor. This statement in para 6 of the petition has put some amount of concern in the mind of this Court because definitely the Will dated 22.6.2010 of Dr. V. Mallika does not make her brother as an owner of half of her estate. Accordingly, I put it to the counsel for the petitioner that why this incorrect statement exists in the petition and counsel for the petitioner initially sought to argue that the statement is correct and which further added to the anxiety of this Court for granting of the probate, however, it is ultimately conceded by the counsel for the petitioner that actually the petitioner has to become the owner of half of the estate only for TEST.CASE NO. 77/2011 Page 10 of 13 the purpose of giving the same to charities ie 50% of the estate in terms of the Will dated 22.6.2010 of Dr. V. Mallika has also to be given in donations.
7. In view of the above facts the Will dated 22.6.2010 of Dr. V. Mallika has been proved to be duly executed and attested, and which has been proved as Ex. PW1/3, probate is therefore granted to the petitioner of the Will dated 22.6.2010 of Dr. V. Mallika, Ex. PW1/3, however, the probate is granted subject to the following terms and which terms will specifically be included in the probate which is granted on stamp papers:
(i) Probate is granted to the executor year by year ie one year at a time, and subject to the petitioner at the end of the each year filing necessary accounts in the court showing due performance of the duties of the executor and also due administration and disposal of the estate for the purposes as stated in the Will dated 22.6.2010, Ex. PW1/3.
(ii) A specific application will be made after expiry of each year after grant of probate year by year and at which stage the court will examine as to whether petitioner should or not continue as the executor.
(iii) Petitioner in a period of any one year of the grant/extension of the probate will not be entitled to sell more than one immovable property of TEST.CASE NO. 77/2011 Page 11 of 13 the deceased as stated in Amended Schedule 'B' to the petition and the petitioner will also not be entitled to sell more than 20% of the immovable assets of the deceased in any one year.
(iv) Any immovable property if sold will necessarily be sold only at the best possible market value and definitely not less than the circle rates which are prevalent in the concerned area.
(v) Petitioner before actual grant of probate is entitled to liquidate such of the movable assets through proper channels and at the best possible market value so that necessary monies are available for payment of the stamp duty of the probate.
(vi) All monies which are received on account of sale or otherwise dealing with the properties of the deceased Dr. V. Mallika shall be put in a bank account and shall be put in short term fixed deposits so as to earn interest till the amounts are utilized in terms of the directions contained in the Will dated 22.6.2010, Ex. PW1/3.
(vii) Petitioner will execute the necessary Administration Bond and will undertake therein to the court for the due performance of his duties as an executor of the Will dated 22.6.2010 of Dr. V. Mallika. TEST.CASE NO. 77/2011 Page 12 of 13
8. The testamentary case is therefore allowed and disposed of by granting probate to the petitioner, however, subject to the categorical terms as detailed in para 7 above.
JANUARY 13, 2016 VALMIKI J. MEHTA, J godara TEST.CASE NO. 77/2011 Page 13 of 13