Shri Basudeo Dalmia & Anr. vs The State & Ors.
2010 Latest Caselaw 2745 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 C.R.P. 65/2010 & C.M. No.6085/2010

                                             Decided on 24.05.2010

IN THE MATTER OF :

SHRI BASUDEO DALMIA & ANR.                      ..... Petitioners
                      Through: Mr. B.B. Singh, Adv.

                  versus


THE STATE & ORS.                                  ..... Respondents
                             Through: Mr. B. Shekhar, Adv.
                                      for R-2 to 10.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     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


HIMA KOHLI, J. (Oral)

1. Pursuant to the order dated 12.4.2010, appearance is

entered on behalf of the respondents No.2 to 10. Though respondent

No.1 is duly served, both by ordinary process as also dasti, none is

present on its behalf. It is therefore assumed that the said respondent

No.1 does not wish to contest the present petition. Counsel for the

respondents No.2 to 10 also states that he does not oppose the prayer

made in the present petition.

2. The present petition is directed against an order dated

21.12.2009 passed by the Additional District Judge, dismissing an

application filed by the petitioners for issuance of letters of

administration with respect to some articles found in the locker of the

deceased, Smt. Indramani Mandelia, after the original petition for

grant of letters of administration, was allotted and disposed of on

14.12.2006.

3. Briefly stated, the facts of the case are that two separate

Wills were executed by Mr. Durga Prasad Mandelia (testator) and his

wife, Smt. Indramani Mandelia (testatrix) on the same date, i.e., on

8.2.2003. The testator, Mr.Durga Prasad Mandelia bequeathed all his

movable and immovable properties in favour of his wife, i.e., Smt.

Indramani Mandelia (testatrix) and appointed the petitioners as joint

executors and trustees under his Will. Similarly, the testatrix, Smt.

Indramani Mandelia executed a separate Will and also appointed the

petitioners as joint executors and trustees under her Will and named

all her legal heirs as the beneficiaries under the Will. The testator, Shri

Durga Prasad Mandelia expired on 30.5.2005 and the testatrix, Smt.

Indramani Mandelia expired on 16.1.2006. On 19.5.2006, the

petitioners, being the executors of the two Wills, filed a probate

petition for grant of letters of administration/probate of the Wills of the

testator and the testatrix, registered as Probate Case No.455/2006.

Respondents No.2 to 12 were impleaded in the said petition as legal

heirs. No objections were filed to the said petition.

4. Vide order 14.12.2006, letters of administration/probate

was issued in favour of the petitioners, subject to their filing a

valuation report and court fees and upon execution of administration

and surety bond by them. Vide order dated 11.12.2007, the trial

court waived the requirement of furnishing the administration and

surety bond. Upon the requisite court fee of Rs.13,00,050/- being

deposited in the Court, letters of administration/probate was granted

to the petitioners in respect of the properties mentioned in the Will, on

7.2.2008.

5. It is stated by the petitioners that before an inventory of

the items/goods left by the deceased in the Court, was filed in the

court, the petitioners discovered that the testatrix, Smt. Indramani

Mandelia also had a locker in her name in Bharat Overseas Bank,

Mumbai (now known as Indian Overseas Bank) which was neither

mentioned in the list of properties annexed to the Will, nor did the

executors have any knowledge about its existence at the time of filing

of the probate petition. As a result, an application was preferred by

the petitioners before the trial court on 16.8.2008, in the same

Probate Case No.455/2006, praying inter alia for issuance of directions

to the bank to open the said locker and for permission to take over

charge of the properties contained therein. Further, a prayer was

made by the petitioners to permit them to file additional court fee after

ascertaining the value of the property contained in the said locker,

upon the same been opened.

6. Vide order dated 24.1.2009, the trial court considered the

request of the petitioners and issued directions to the Manager of the

aforesaid bank to open the locker in the presence of the executors,

prepare an inventory of the goods kept in the locker, get the articles

valued from a registered valuer, seal the locker with the seal of the

Bank Manager and send the inventory along with the valuation report,

to the court. It is submitted that in March 2009, when the petitioners

approached the Bank along with a copy of the aforesaid order dated

24.1.2009, the Manager of the Bank refused to execute the court

orders and insisted that the said orders be forwarded to him directly

through court. Consequently, another application was filed by the

petitioners on 15.4.2009 seeking directions to the concerned Bank

Manager, to execute the orders dated 24.1.2009.

7. Vide order dated 20.7.2009, court notice was issued to the

Manager of the aforesaid Bank, who appeared before the court on

2.9.2009 and gave an undertaking to execute the court orders at the

earliest. On 9.9.2009, the locker was opened in the presence of the

bank officials and the petitioners and the articles contained therein

were valued. On 6.10.2009, the valuation report of the articles

contained in the locker was submitted in the court and the petitioners

were allowed to complete the formalities of filing of court fee, etc. On

18.12.2009, the petitioners filed court fee of Rs.1,41,000/- in the

court. After all the formalities were finally completed and the

application was listed on 21.12.2009, for submission of the report by

the Ahlmad, the learned Additional District Judge declined the request

of the petitioners for issuance of letters of administration in respect to

the articles found in the locker, maintained by the testatrix in the

Bharat Overseas Bank, Mumbai on the ground that the said locker did

not find mention in Schedules A and B of the movable and immovable

properties of the deceased at the time of passing of the order dated

14.12.2006. Aggrieved by the aforesaid dismissal order dated

21.12.2009, the petitioners have filed the present petition.

8. Counsel for the petitioners states that the impugned order

is erroneous inasmuch as the learned Additional District Judge failed to

appreciate the fact that the petitioners were constrained to file an

additional application only for the reason that the locker in question

did not find mention in Schedules A and B, annexed to the probate

petition. It is further stated that after passing a series of orders on an

application preferred by the petitioners on 16.8.2008, not only calling

upon the Manager of the Bharat Overseas Bank, Mumbai to open the

locker in the presence of the petitioners, but also directing preparation

of an inventory of the goods kept in the locker, having the articles

valued from a registered valuer, directing sealing of the locker with his

seal and sending the inventory along with the valuation report, to the

court, the learned ADJ ought to have brought the matter to a logical

conclusion by directing that letters of administration be issued in

respect of the said articles as well. Further, the court had issued

notice to the Bank Manager for compliance of its order and it was upon

the directions of the Court, that the petitioners deposited court fee of

Rs.1,41,000/- on the basis of the valuation report filed in court in

respect of articles lying in the locker. It is stated that having been

called upon to deposit the court fee, the trial court ought not to have

declined the requests of the petitioners merely on the ground that the

articles found in the locker did not find mention in Schedule A & B

annexed to the probate petition.

9. The counsel for the petitioners has been heard and the

documents placed on the record have been carefully perused.

10. From a perusal of the order dated 24.1.2009, it appears

that the order passed on the application filed by the petitioners under

Section 151 CPC, of issuing directions to the officers of the Bharat

Overseas Bank, Mumbai to open the locker and allow the

petitioners/executors to inventorize the properties contained therein,

submit a valuation report and file additional court fee, was virtually a

precursor to the application being formally allowed after completion of

all formalities. Notably, the order dated 24.1.2009 commences by

stating that the said order would dispose of the application filed by the

petitioners under Section 151 CPC.

11. After taking notice of the explanation offered by the

petitioners expressing their inability to include the complete properties

of the deceased Smt. Indramani Mandelia in view of they being

unaware of the existence of the contents in the locker maintained by

the deceased in Bharat Overseas Bank, Mumbai, the learned Additional

District Judge issued directions to the Bank Manager to open the locker

in the presence of the executors, prepare an inventory of the goods

kept in the locker, get the articles valued from a registered valuer and

place them back in the locker. The Bank Manager was further directed

to seal the locker thereafter and forward the inventory along with the

valuation report to the court. The other orders passed after

24.1.2009, were only to complete necessary formalities as already

spelt out in first order. Completion of the said formalities took time

upto December, 2009. In the order dated 18.12.2009, the statement

of the counsel for the petitioners was recorded that court fee had been

filed and other formalities were all complete. The matter was renotified

for 21.12.2009 only for the Ahlmad to submit his report in this regard.

On 21.12.2009, instead of considering the report of the Ahlmad, the

court proceeded to decline the request of the petitioners for issuance

of letters of administration in respect of the articles contained in the

locker.

12. It is pertinent to note that all the orders that are on the

record after the first order dated 24.1.2009, have been passed by the

same Judicial Officer. While passing the said orders, he was well

aware of the background of the case and the circumstances which

compelled the petitioners to file such an application, as detailed in the

order dated 24.1.2009. Once the matter was proceeded under the

directions of the court, and a number of steps were taken by the

petitioners to complete all requisite formalities for issuance of letters

of administration in respect of the remaining articles lying in the locker

of the deceased Smt. Indramani Mandelia, it is incomprehensible as to

why at the eleventh hour, such a request of the petitioners could have

been declined by the court on the ground that the articles in question

found in the locker, did not find mention in Schedules A & B, annexed

to the probate petition.

13. The learned Additional District Judge overlooked the fact

that the very purpose of filing of such an application after grant of the

probate petition was to include the articles of the locker, which were

not to the knowledge of the petitioners, as part of the letters of

administration, to enable them to administer them as well in

accordance with the terms and conditions of the Will. It is trite that an

application for grant of probate is a proceeding in rem. A probate

when granted, not only binds all the parties before the Court, but also

binds all the persons in all proceedings arising out of the Will or claims

under/or connected therewith.(Refer: Basanti Devi Vs. Raviprakash

Ramprasad Jaiswal, AIR 2008 SC 295). As held in the case of

Chiranjilal Shrilal Goenka Vs. Jasjit Singh & Ors. reported as (1993) 2

SCR 454, the grant of probate gives the executor the right to

represent the estate of the deceased.

14. The petitioners herein being the nominated expressly as

executors of the Will, the probate/letters of administration granted in

their favour shall have a bearing over all the property and estate, both

movable and immovable property of the deceased and same shall be

conclusive as to their representative title against all debtors of the

deceased, and all persons holding property which belongs to him/her.

The grant of letters of administration shall afford full indemnity to all

debtors, paying their debts and all persons delivering up such property

to the person to whom such probate or letters of administration have

been granted. In the absence of a specific mention of the articles lying

in the locker of the deceased, Smt. Indramani Mandelia, in the letters

of administration issued by the Probate Court, the executors would not

have the authority to approach the bank to take over the articles lying

in the locker and nor would they be in a position to completely

discharge their duty as administrators of the estate of the deceased.

15. There is force in the contention of the counsel for the

petitioners that two Wills in question, in respect of which

probate/letters of administration was granted, contained a mandate

entitling the petitioners in their capacity as executors to take a joint

decision on all matters not only covered under the Wills, but also to

remove all ambiguities to ensure that the last desire of the deceased

was duly given effect to in letter and spirit. Furthermore, after having

called upon the petitioners to submit a valuation report of the

inventorized articles lying in the locker and directed them to deposit

the court fee payable on the articles lying in the locker, which order

was duly complied with, there was no justification for the trial court to

have rejected the application.

16. The petitioners are well entitled to claim as executors of the

Will of the deceased, that it is their bounden duty to ensure that all the

properties of the deceased are taken control of by them and

administered in accordance with the last wish of the deceased. The

Probate Court ought to have promoted such an endeavour. Merely

because the articles lying in the locker did not find mention in

Schedules A & B annexed to the probate petition, cannot be treated

as a ground to preclude the court from taking notice of the said

articles at a later stage, particularly, when the petitioners had

themselves approached the court with a request to take them into

consideration and include them in the letters of administration already

granted in their favour. The explanation offered by the petitioners for

the non-inclusion of the articles in the original probate petition appear

to be genuine and bona fide. There are no malafides alleged against

the petitioners. The respondents No.2 to 12 have also not opposed

the prayer made in the application by the petitioners.

17. Accordingly, the present petition is allowed. The articles

contained in the locker of the deceased, Smt. Indramani Mandelia,

maintained in Bharat Overseas Bank, Mumbai (now known as Indian

Overseas Bank) and as inventorized in the list of the articles submitted

to the court, are directed to be included in the Letters of

Administration granted in favour of the petitioners. It is stated that

the court fee of Rs.1,41,000/- has already been deposited in the

Probate Court. Deficiency, if any, in the court fee or any remaining

procedural formality shall be completed by the petitioners upon they

being so intimated by the concerned court.

18. The letters of administration/probate already granted in

favour of the petitioners to administer the estate of the deceased,

Smt. Indramani Mandelia and her husband, Mr. Durga Prasad

Mandelia, in terms of the order dated 14.12.2006, stands modified to

the extent that the articles lying in the locker as above and duly

inventorized, shall form a part and parcel thereof. Formal orders, if

any, in this regard shall be passed by the Probate Court under

intimation to the petitioners.

19. The petition is disposed of along with the pending

application.

20. A copy of this order shall be forwarded by the Registry

forthwith to the learned ADJ, for perusal and compliance.

                                                              (HIMA KOHLI)
MAY 24, 2010                                                    JUDGE
sk/mk