Karan Singh vs State And Ors.
2008 Latest Caselaw 1041 Del

                     IN THE HIGH COURT OF DELHI AT NEW DELHI

                     TEST CAS. NO.3/2006 & IA No.No.3840/2008

                                                         RESERVED ON: May 26, 2008
                                                         DECIDED ON : July 16, 2008

KARAN SINGH                                            ............PETITIONER
                            THROUGH:      Mr. Pradeep K. Bakshi, Mr. Rajat Navet,
                            Advocates.

                            VERSUS

STATE AND ORS.                                           .........RESPONDENTS

                            THROUGH:      Mr. J.S. Lamba, Advocate for Respondent No.4,
                                          Mr. Akhil Sibal, Advocate for Respondents 3 & 5.
                                          Mr. Anil Sapra with Mr. Rajesh Pathak, Advocates
                                          for applicant in IA 14267/2007.

Coram: Mr. Justice S. Ravindra Bhat
      1.      Whether reporters of local papers may be
              allowed to see the judgment?                           Yes

      2.      To be referred to the Reporter or not?                 Yes

      3.      Whether the judgment should be reported
              in the Digest?                                         Yes

% 16.7.2008

Mr. Justice S. Ravindra Bhat:


IA No.No.3840/2008 in Test Case No.3/2006

1. This order will dispose of IA No.3840/2008 filed under Section 271 read with

Section 300 of the Indian Succession Act. The applicant questions the jurisdiction of this

Court to entertain and proceed with this testamentary case.

2. Briefly the facts are that the deceased, Ashok Malik (hereafter referred to as "the

TEST CAS. NO.3/2006 1 of 8 Testator") died on 4.1.2003. He was a permanent resident of Rohtak and lived in Addis

Ababa, Ethiopia. The Testator died at Apollo Hospital in Delhi where he had been shifted

for medical treatment, on urgent basis. The Petitioner seeks Probate of a Will, said to have

been executed by the Testator on 29.10.2002. The Petitioner claims that he was nominated

as the Executor of the Will and therefore he is entitled to approach the Court for grant of a

Probate. The valuation of properties for which Probate is sought is indicated at Rs.6.37

crores.

3. In terms of the Will the testator it is contended divided all his properties between

his son, Karan Malik, and his married daughter Ms. Priyanka Batra. He did not bequeath

any property in favour of his wife Ms. Neeru Malik and bequeathed his 1/5 th share in the

parental house at Rohtak, in the said will, to his mother. According to the Will all

immovable properties (there are seven of them listed out in detail in Annexure-I to the

petition) are agricultural properties or plots, located at various places in Haryana and

Rajasthan. Three of these are agricultural properties at Rohtak, two plots in different

locales at Gurgaon, a share in the parental house at Rohtak and 17 bighas agricultural land

at Alwar, Rajasthan. The total valuation of these is disclosed as Rs.4.24 crores. So far as

moveable assets are concerned, five vehicles (cars) are subject to be the bequest which

include three located at Addis Ababa, Ethiopia such as one Mercedes Car, one Nissan Patrol

4 Wheel Drive, and a Hyundai Santro Car and a Ford Ikon Car in Inda. The Petitioner has

disclosed balance of amounts lying in deposits in six deposits (FCNR & NRE) in Standard

Chartered Bank to the extent of Rs.1 crore and a balance sum of Rs.50,000/- in various

accounts in HDFC Bank at New Delhi.

TEST CAS. NO.3/2006 2 of 8

4. After issuance of notice, the Respondents i.e. the wife and son of the testator, Karan

Malik and Ms. Neeru Malik entered appearance and objected to the grant of Probate. By

their reply dated 30.6.2006 the Objectors leveled several allegations against the Petitioner-

who is the brother of the testator- and also adverted to previous disputes pertaining to

properties. They have relied upon the previous litigation i.e. Civil Suit No.59/1990 before

the Senior Sub-Judge, Rohtak. The objectors have leveled allegations against the testator's

married daughter Priyanka Batra and also sought to list out allegations concerning

manipulations by her. They state that the Will is fabricated, forged and a concocted

document, not signed by the testator. According to them the Will was also not executed in

accordance with law. They alternatively contend that execution of the Will was procured

by undue influence by Priyanka Batra or the Petitioner, upon the testator.

5. The Objectors have moved the application, under Section 271 read with Section 300.

They contend that this Court should decline to proceed with the matter and applying the

principles of Order 7 Rule 10 CPC return the proceedings. Mr. Akhil Sibbal, learned counsel

contends that the pleadings and materials on record establish that all the immovable

properties and almost all movable properties except an insignificant portion, being part of

Bank Accounts are outside the territorial jurisdiction of this Court. Counsel contended that

the main beneficiaries of the Will i.e. children of the testator also live outside the

jurisdiction of this Court and the Testator did not have a fixed place of abode in Delhi. He

admittedly died in Apollo Hospital where he was shifted for medical treatment. In these

circumstances the Court does not possess jurisdiction and should decline to further

proceed with the matter. Learned counsel relied upon a decision of this

TEST CAS. NO.3/2006 3 of 8 Court reported as Kanta Vs. State AIR 1985 Delhi 453.

7. Mr. Pradeep Bakshi, on behalf of the petitioner, on the other hand, contended that

this Court should not entertain this application questioning jurisdiction at this stage in

view of Section 21 of the Code of Civil Procedure. Learned counsel pointed out that the

petitioner lives in Delhi; the witnesses required to depose in the case also live in Delhi and

what is more substantial proceedings have taken place in this Court. Counsel relied upon

on the fact that the question of maintainability on the ground of territorial jurisdiction was

taken only in Mach, 2008. He submitted that unlike in the case of Kanta where the

immovable properties were insignificant, in this case the amounts in the bank though not

comparable with value of immovable properties are nevertheless substantial.

8. For a better appreciation of this case it would be necessary to set out the relevant

provisions of the Indian Succession Act which are Sections 270,271 and 300. They are

extracted below :-

"270. When probate or administration may be granted by District Judge.--Probate of theWill or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of above; or any property, movable or immovable, within the jurisdiction of the Judge."

" 271. Disposal of application made to Judge of district in which deceased had no fixed above.--When the application is made to the Judge of a district in which the deceased had no fixed above at the time of his death, it shall be in the discretion of the Judge to refuse the application, if in his judgment it could be disposed of more justly or conveniently in another district, or, where the application is for letters of administration, to grant them absolutely, or limited to the property within his own jurisdiction."

TEST CAS. NO.3/2006 4 of 8 "300. Concurrent jurisdiction of High Court.-- (1) The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge.

(2) Except in cases to which section 57 applies, no High Court, in exercise of the concurrent jurisdiction hereby conferred over and local area beyond the limits of the towns of Calcutta, Madras and Bombay shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorized it so to do."

9. The facts indicated above reveal that the testator did not live in Delhi; he was working

and residing at Addis Ababa, Ethiopia. The medical records which are a part of the file show

that he was shifted to Apollo Hospital, in New Delhi due to a medical emergency. He

unfortunately succumbed to his illness. It is common ground that all the immovable

properties which are the subject matter of bequest are outside the territorial limits of this

Court. The beneficiaries too live outside; the daughter Priyanka Bantra lives in Mumbai

and the son, the other heir lives in Gurgaon. One attesting witness too, lives outside the

jurisdiction of this Court. The Petitioner's claim for jurisdiction is that he resides in Delhi

and that some part of the movable property is located within the jurisdiction of this Court -

they are cash balances in bank accounts. During the course of the proceedings the

objector-respondents have placed on record copies of bank balance certificate issued by

the HDFC and the Standard Chartered Bank. According to the letter of the HDFC Bank

dated 29.12.2007, (a copy of which is produced along-with the application and has not

been denied by the petitioner) of the four accounts with which the Will was concerned, two

stood in the name of the deceased and two belong to Ms. Neeru Malik. One such account of

Ms. Neeru Malik was closed and the other had a balance of Rs.25097.97. The two bank

accounts of Shri Ashok Malik had a balance of US$ 8541.17 and US$ 7128.18 respectively.

TEST CAS. NO.3/2006 5 of 8 The letter of Standard Chartered Bank dated 9.1.2008 similarly shows that out of the six

accounts originally maintained, three were closed. One was a joint account of Mr. Ashok

Malik and Ms. Neeru Malik; the account holder of one more was the deceased Ashok Malik

where the amount indicated was Nil balance. The last account was of Ms. Neeru Malik

where too the Bank has disclosed the amount as Nil balance. These facts were part of the

materials placed before the Court along with the application; they have not been denied

though opportunity was granted to the Petitioner.

10. In these circumstances what emerges is that approximately US$ 15,600 or a sum

equivalent to about Rs.7 lakhs is lying to the credit of the deceased testator in Banks in

Delhi. They are subject matter of the present proceedings. On the other hand, all other

properties such as 7 pieces of valuable immovable properties as well as three cars are

outside the jurisdiction of the Court. They are valued at over Rs. 5 crores. The beneficiaries

to the will too do not live in Delhi; nor do the objectors.

11. It is settled law that by virtue of Section 273 of the Indian Succession Act, Probate

proceedings, validly entertained are proceedings in rem (see Basanti Devi Vs. Ravi Prakash

Ram Prasad Jaiswal 2008 (1) SCC 267 and Smt. Rukmini Devi vs. Narendra Lal 1985(1) SCC

144. The mandate of Section 271 is that where the deceased had no fixed above at the time

of his death it is the discretion of the Judge before whom the application for probate is

made to refuse it, if it can be disposed of more justly and conveniently in another district

or place. The ratio in Kanta's case was that as against value of substantial properties,

which were outside jurisdiction of the Court, the movable property on the basis of which

the jurisdiction was claimed was insignificant. In this case too it is common ground that

TEST CAS. NO.3/2006 6 of 8 the disclosed value of the total property is Rs.6.5 crores of which undeniably 4.25 crores or

the bulk of the property is outside the jurisdiction of this Court. Although originally the

Petitioner had valued the bank account and amounts lying to the credit of deceased within

jurisdiction of this Court as Rs.1 crore fifty thousand, yet, it has been subsequently

disclosed that the amounts are to the tune of about Rs.7 lakhs. It is not as if the deceased in

this case had no fixed place of abode. Indeed he was residing and working at Addis Ababa,

Ethiopia. Except fact that the Executor is a resident of Delhi and one of the attesting

witnesses is said to be residing at Delhi, in addition to the amounts lying in bank accounts

in Delhi, there is no other fact to establish jurisdiction of this Court. In Kanta it was held

that the mere fact that witnesses are residents of Delhi is no ground for exercising

jurisdiction of this Court.

12. The Court held in Kanta, on a conjoint reading of Sections 270, 271 & 300 of the Act

that in such cases where insignificant part of the property which is subject matter of the

bequest is sought to be made the basis for claiming jurisdiction, the Court would be well

advised in declining to exercise its powers. The Court had held that Delhi was most ill-

suited for the purpose of examining rival contentions concerning grant of Probate. Here too

similar considerations apply.

13. In view of the above discussion, this Court is of the opinion that the deceased cannot

be said to be a person with no fixed abode; he was a resident of Addis Ababa; the bulk and

substantial part of the immovable properties which are subject matter of bequest are

outside jurisdiction of this Court. Even though the Court had entertained the proceedings,

yet having regard to the fact that these are not by way of a suit, the Court does not find the

TEST CAS. NO.3/2006 7 of 8 objection based on Section 21 CPC substantial; there is no impediment for it to conclude

that continuing with these proceedings would be inappropriate and inexpedient. For these

reasons the application has to succeed. It is open to the Petitioner to apply for grant of

Probate in one of the competent Courts where the immovable properties are located. The

application (IA No.No.3840/2008) is therefore, allowed.

In view of the above discussion, it is held that this Court has no jurisdiction to

proceed further with the matter. Probate Case No.3/2006 is accordingly disposed of with

liberty to the Petitioner, discussed above. In the circumstances, there shall be no order as

to costs.

July 16, 2008                                                 S. RAVINDRA BHAT
                                                                   (JUDGE)




TEST CAS. NO.3/2006                                                         8 of 8