Ira Kapoor vs The State And Ors.
2011 Latest Caselaw 3294 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 12.7.2011


+      CM(M) No.771/2011 & CM No.12389/2011 (for stay)


IRA KAPOOR                         ...........Petitioner
                         Through: Mr.Rajat Aneja, Advocate.

                    Versus

THE STATE AND ORS.                   ..........Respondents
                         Through:       Nemo.



CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

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

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

                                                              Yes

INDERMEET KAUR, J. (Oral)

1. The order impugned is the order dated 4.4.2011 vide which

the application filed by the petitioner under Section 151 of the

Code of Civil Procedure seeking a waiver of the condition

regarding the furnishing of a surety and administration bond had

been dismissed. Section 291 of the Indian Succession Act read

with the ratio of the judgment reported in Sanjay Suri Vs. State &

Ors. AIR 2004 Delhi 9 had been relied upon to return a finding

that only when a sole beneficiary is involved can there be a

dispensation of the indemnity and surety bond and not otherwise.

The court had noted that the petitioner in this case is not the sole

beneficiary as such the indemnity and surety bond cannot be

waived.

2. Learned counsel for the petitioner has placed reliance upon

a judgment of this Court reported in 2006 (87) DRJ Sudershan K.

Chopra Vs. State & Ors. to support his submission that in an

uncontested proceeding (which was so in the present case), the

condition of the security bond for the grant of probate had been

modified and a token amount had been directed to be deposited;

in that case surety bond in the sum of Rs.1,00,000/- had been

directed to be deposited. Record shows that in the instant case

the letters of administration had been granted in respect of the

estate of the deceased Manohar Lal Chopra i.e. the property E-

490, Greater Kailash, Part-II, New Delhi. The will had been

proved as Ex.PW-1/2. It is not in dispute that the deceased

was the father of the petitioner and of the two respondents; both

the said respondents had filed a no objection to the prayer made

by the petitioner. In fact all of them were beneficiaries of the will

of their deceased father. Vide the aforenoted will dated 1.5.2006

the ground floor with all the fittings and fixtures had gone to the

share of petitioner; first floor was bequeathed to respondent no.3

and the second floor to respondent no.2; further respondents no.2

and 3 as also the petitioner has equal rights and shares in the

basement.

3. Proceedings are uncontested. Although strictly speaking

there is not one sole beneficiary to the will of the deceased, yet all

the legal heirs of the deceased have no objection and have not

contested the will of their deceased father.

4. The object of a testamentary and intestate jurisdiction is to

enable the court to accord legitimacy and authenticity by giving

its seal of approval to succession of the estate of the deceased.

The court while exercising such a jurisdiction acts in consonance

with the ultimate objective of the grant of succession. The

statutory provisions and rules are to be interpreted in the manner

which would give effect to and further the intention of the

deceased rather than to act in the manner which would have a

converse effect on what was contemplated by the deceased. The

well recognized proposition of interpretation demands that a

statute must be construed as to make it operative to give it a

sensible meaning; the possibility of injustice often leads the court

to adopt a particular construction; it must not flout common sense

and at the same time there must not be any disregard of the

statute by overriding it. It is in this background that the prayer

made in this petition is to be considered.

5. In the judgment of this Court in Sudershan K. Chopra

(supra) the court had directed the petitioner to furnish a bond in

the sum of Rs.1,00,000/-. In the instant case proceedings

admittedly being uncontested and in view of the ratio of judgment

of Sudershan K. Chopra (supra), it would be appropriate that a

security bond in the sum of Rs.5,00,000/- be furnished by the

petitioner; this would serve the purpose. Petition is allowed and

disposed in the above terms.

INDERMEET KAUR, J.

JULY 12, 2011 nandan