Tribhuvan Nath Puri And Anr. vs State
2008 Latest Caselaw 801 Del

JUDGMENT

Hima Kohli, J.

1. Before proceeding to deal with the main petition, it needs to be clarified that in the order dated 1.5.2008, while culling out the status of the service of summons on the family members of the deceased testator, insofar as Ms.Savita Puri- respondent No. 5 is concerned, it was recorded that she was shown to have been served vide order dated 7.12.1983. It was further recorded that vide order dated 25.7.1984, it was directed that the matter be listed before the Court for taking ex-parte proceedings against Ms.Savita Puri. However, in the aforesaid order, it was erroneously recorded that no specific order for proceeding ex-parte against Ms.Savita Puri was passed. Today, while perusing the order sheets, it transpires that Ms.Savita Puri -respondent No. 5 and Ms.Vimla Beri -respondent No. 1, were proceeded against ex-parte vide order dated 6.8.1984. Accordingly, the order sheet dated 1.5.2008, stands rectified to the extent that Ms.Savita Puri was proceeded against ex-parte vide order dated 6.8.1984.

2. Now, coming to the present petition, the petitioners, Mr.Tribhavan Nath Puri and Mr.Vishwa Nath Puri have jointly filed this petition under Sections 231 and 232 of the Indian Succession Act (in short referred to as `the Act') for grant of Letters of Administration in respect of Will dated 1.9.1975, executed by their father, late Rai Bahadur Amar Nath Puri, who died in Delhi on 30.1.1976. On his death, the father of the petitioners was survived by his two sons, the petitioners herein and five daughters as detailed in para 3 of the petition. The testator's wife Ms.Harbans Kaur expired in December, 1973, i.e. prior to the execution of the Will by the deceased testator.

3. The present petition, seeking probate of the Will of the testator, was filed by the petitioner on 24.3.1983. Probate was registered on 16.5.1983 and notice was issued to the relatives, Chief Revenue Controlling Authority and the general public by way of publication in the `Hindustan Times', returnable for 20.7.1983. A citation of the present petition was published in the English edition of `Hindustan Times' on 18.6.1983. In response to the notice of the present petition, Ms.Sunita Bhalla- respondent No. 2 entered appearance. Ms.Vimla Beri- respondent No. 1 was duly served but as none appeared on her behalf, she was proceeded against ex-parte on 6.8.1984. Similarly, Ms.Savita Puri- respondent No. 5 was served, as recorded in order dated 7.12.1983, but since she did not enter appearance, she was also proceeded against ex-parte vide order dated 6.8.1984. Ms.Subbashni Abrol- respondent No. 3 was served for 20.7.1983 and vide order dated 21.9.1983, it was directed that as Ms.Subbashni Abrol-respondent No. 3 had not presented herself, so the matter be placed before the Court for proceeding ex-parte against her. However, a perusal of the order sheet shows that no specific order was passed for proceeding ex-parte against Ms.Subbashni Abrol- respondent No. 3. Instead, in the order dated 29.1.1986, it was recorded that Ms.Subbashni Abrol- respondent No. 3 had expired in January, 1986 and directions were issued to the petitioners to bring her LRs on record.

4. Ms.Usha Puri- respondent No. 4, filed her objections to the probate petition. However, thereafter she did not adduce any evidence in support of her objections. After 28.7.1995, the respondents were directed to tender their evidence by way of affidavits, failing which, it was recorded that their evidence shall be deemed to be closed. As per the records, Ms.Usha Puri- respondent No. 4 did not tender her evidence. In these circumstances, the objections filed by Ms.Usha Puri- respondent No. 4 are deemed to be dismissed.

5. Ms.Sunita Bhalla-respondent No. 2 also filed objections to the petition. In support of her objections, she filed an affidavit by way of evidence on 20.4.1995 and was duly cross-examined. A perusal of the affidavit filed by Ms.Sunita Bhalla shows that she did not dispute the legality and validity of the Will of the deceased testator. However, during the pendency of the present proceedings, Ms.Sunita Bhalla- respondent No. 2 expired and directions were issued to the petitioners to file an application to bring her LRs. on record.

6. On 1.5.2008, a statement of the counsel for the petitioners was recorded that the petitioners and the surviving sisters, mentioned in para 3 of the petition are the sole surviving LRs of the deceased, Ms.Sunita Bhalla-respondent No. 2. It is a matter of record that no one has come forward on behalf of Ms.Sunita Bhalla- respondent No. 2 to seek impleadment as her LRs.

7. Vide order dated 6.5.1988, the following issues were framed:

(i) Whether the petition is bad for non-joinder of necessary parties?

(ii) Whether the petition is not legally maintainable because the LRs of Ms.Subbashni Abrol have not been brought on record?

(iii) Whether Rai Bahadur Amar Nath Puri executed a legal and valid Will on 1.9.1975.

(iv)Whether the petitioners are entitled to grant of letters of administration.

(v) Relief.

8. The aforesaid issues are decided as follows:

Issue No.-1 Whether the petition is bad for non-joinder of necessary parties?

The aforesaid issue was framed in view of the objections taken by Ms.Sunita Bhalla-respondent No. 2. However, as noticed above she expired during the pendency of the present proceedings. In the objections filed by her, the respondent No. 2 had not challenged the legality or validity of the Will in question, but only contended that the beneficiaries under the Will ought to have been impleaded as necessary parties. Counsel for the petitioner submits that in any case the said objection raised by the respondent No. 2 that the beneficiaries under the Will ought to have been joined as necessary parties to the probate proceedings, is misconceived for the reason that the provisions of Section 278 of the Act do not require the petitioners to implead the beneficiaries under the Will. He submits that only the details of the family and other relatives of the deceased, along with their respective residences, amongst other information, is required to be furnished by the petitioners in a petition for grant of Letters of Administration, which requirements have been duly complied with by the petitioners. A perusal of Section 278 of the Act bears out the aforesaid submission of counsel for the petitioners. There is no mandate in law that the beneficiaries of the Will need necessarily be impleaded as parties in the probate proceedings. It is therefore held that the present petition is not bad for non-joinder of necessary parties. The said issue is decided in favour of the petitioners.

9. Issue No.-2 Whether the petition is not legally maintainable because the LRs of Ms.Subbashni Abrol have not been brought on record?

As noted above, Ms.Subbashni Abrol- respondent No. 3, was served for 20.7.1983, but she did not enter appearance. Vide order dated 21.9.1983, it was directed that the case be placed before the Court for proceeding ex-parte against Ms.Subbashni Abrol- respondent No. 3. Counsel for the petitioners submits that respondent No. 3 having been served with the summons and having failed to have entered appearance, is deemed to have been proceeded against ex-parte in terms of the provisions of Order 9 Rule 6 (a) CPC. He also draws the attention of this Court to the provisions of Order 22 Rule 4 (4) CPC to state that the Court can exercise its discretion to exempt the plaintiff from substituting the legal representatives of a defendant who has failed to file written statement and who having filed it, has failed to appear or contest the suit at the hearing. He submits that in the present case Ms.Subbashni Abrol- respondent No. 3, who, though strictly speaking is not a contesting respondent but is only a relative of the deceased testator, was duly served, but failed to appear and contest the probate petition and in these circumstances, a judgment may be pronounced in the present petition notwithstanding the fact that she died during the pendency of the present proceedings and her LRs were not brought on record.

In view of the fact that despite having been served, Ms.Subbashni Abrol- respondent No. 3, failed to enter appearance, she ought to have been proceeded against ex-parte immediately thereafter. It appears that the said formal order was not passed at the relevant time on account of oversight. The fact that she expired subsequently in January, 1986, could not be a ground to direct the petitioners to bring on record her LRs as she herself chose to stay away from the proceedings after being served during her life time. Thus, having considered the facts and circumstances of the present case, issue No. 2 is decided in favour of the petitioners by holding that merely because the LRs of Ms.Subbashni Abrol- respondent No. 3 were not brought on record, the petition cannot be held to be legally not maintainable.

10. Issue No.-3 Whether Rai Bahadur Amar Nath Puri executed a legal and valid Will on 1.9.1975.

The Will of which probate is sought by the petitioners was attested by two witnesses, namely, Sh.R.D. Khosla and Sh.Madan Lal. The affidavits by way of evidence were filed by both the witnesses (Pages 115-116). Both the witnesses deposed that the deceased testator, Rai Bahadur Amar Nath Puri, had executed his Will dated 1.9.1975, in their presence. They further testified that the deceased testator was in a sound disposing mind when he executed the Will, Ex-P1. They further stated that they had signed the Will in the presence of the deceased testator and in the presence of each other. Both the witnesses also identified the signatures of Rai Bahadur Amar Nath Puri, as also each other's signatures, on the Will (Ex-P1).

The petitioners have also filed their affidavits by way of evidence and have reiterated the averments made by them in the petition to be true and correct. The petitioners have placed on record the original death certificate of the deceased testator dated 28.2.1976 and hence also proved the same. The evidence produced by the petitioners on the record to prove the Will in question remains unrebutted and there is no reason to doubt the same.

In the light of the evidence of the witnesses to the Will and the petitioners as noted above and in view of the fact that the legality and validity of the Will executed by the deceased testator, remains unrebutted, issue No. 3 is decided in favour of the petitioners by holding that Rai Bahadur Amar Nath Puri had executed a legal and valid Will on 1.9.1975.

11. Issue No.-4 Whether the petitioners are entitled to grant of letters of administration.

It is pertinent to note that in the aforesaid Will executed by the deceased testator, he had named four executors, namely, Mr.A.N. Khosla, Mr.S.A. Puri, Mr.D.C. Sanon and Mr.R.L. Beri (son-in-law of the deceased). Mr.A.N. Khosla expired on 22.10.1976, even prior to filing of the present petition. Mr.S.A. Puri, conveyed his refusal to act as an executor due to his professional pre-occupation, as is reflected in his letter dated 25.3.1980. Mr.Sanon, the third executor refused to execute the Will in view of his ill health as conveyed by him to petitioner No. 2, vide letter dated 10.4.1980. The fourth executor, Mr.R.L. Beri (son-in-law of the deceased testator and husband of Smt.Vimla Beri) entered appearance and filed an affidavit dated 15.12.1996. However, during the pendency of the present proceedings, he expired on 4.6.2007. Though, his LRs were impleaded and duly served, none entered appearance on their behalf. Counsel for the petitioners submits that in view of the fact that one of the executors expired prior to filing of the present petition, two of the executors expressed their inability to execute the Will, and the fourth executor expired during the pendency of the present proceedings, the petitioners are entitled to grant of Letters of Administration in terms of Sections 231 and 232 of the Act.

12. From the unrebutted testimony on the record, it stands proved that the Will of which probate is sought by the petitioners was the last and genuine Will of the deceased testator and was validly executed by him while he was possessed of sound disposing mind. Not only the petitioners and their sisters, but a charitable trust is also a beneficiary in the said Will.

13. In view of the above discussion and having regard to the facts and circumstances of the present case, the petitioners are jointly appointed as Executors of the Will executed by the deceased testator. It is ordered that Letter of Administration along with copy of the Will Ex-P1 be granted in favour of the petitioners on their depositing the rewquisite court fee and on their furnishing administrative bonds for due administration of the estate of the deceased in view of the wishes of the deceased testator. The original Will Ex-P1 shall be kept in safe custody.

14. The petition stands disposed of.