Ramesh Chand Sharma vs State & Ors
2015 Latest Caselaw 540 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment reserved on :15.01.2015
                                   Judgment delivered on :20.01.2015.

+     TEST.CAS. 66/2011 & I.A.No.13456/2011
      RAMESH CHAND SHARMA
                                                           ..... Petitioner
                          Through        Mr.J.M.Kalia, Advocate.

                          versus

      STATE & ORS.
                                                        ..... Respondents
                          Through        Mr.V.C.Jha    and      Ms.Sonia
                                         Sharma, Advocate for respondent
                                         no.1.
                                         Ms.Madhavi Khare, Advocate for
                                         R-2 to R-5.

INDERMEET KAUR, J.

1 Present petition under Section 278 of the Indian Succession Act

(hereinafter referred to as the 'said Act') seeks letters of administration

of the assets of the deceased Rajesh Sharma. The petitioner before this

Court is Ramesh Chand Sharma the son of the deceased. Deceased is

stated to have left behind the following movable and immovable

properties, details of which find herein as under:

Immovable properties S.No.

1 House property bearing no.C-243, Gali Rs.32,49,2000/-

no.12, New Usmanpur, Delhi-110053 2 House property bearing no.C-363, Gali Rs.21,74,200/-

NO.12, New Usmanpur, D?elhi11053

3. House property bearing no.Flat No.C- Rs.29,31,400/-

603 (LIG), Sector-19, Noida (UP) Movable properties

S.No. Details of properties Valuation 1 Balance in Saving bank account Rs.97,000/-

No.307602010004287

2. Three FDRs in the name of the Rs.2,60,000/-

deceased lying at Union Bank of India, Rs.1,87,000/-

         Branch Shahdara, Delhi                    Rs.2,75,000/-
3        Balance in Saving Bank Account Rs.15,337.90
         No.1961101000008 at Canara Bank,
         Branch Subroto Park, AFGIS, New
         Delhi


2       Contention is that the deceased has left behind five class-I heirs

including the present petitioner i.e. widow of the deceased, four sons

and one daughter (arrayed as respondents). Prayer is that since the

petitioner is a class-I heir and the deceased has died intestate letters of

administration be granted in his favour.

3 Reply has been filed by respondent no.3 (brother of the petitioner)

contesting the petition. It is stated that the petitioner has concealed

material facts; the sole motive of the plaintiff is to harass his mother and

other siblings. Petitioner has no affection for his family. Deceased

Rajesh Sharma had died intestate on 24.02.2011. At that time he was

living in C-243, Gali No.12, New Usmanpur, Delhi. All the aforenoted

properties belong to the deceased. Property at C-243, Gali No.12, New

Usmanpur, Delhi is a two storied house where the widow of the

deceased is residing along with her elder son i.e. respondent no.3 and his

family; it is being used as their residence. Property bearing No.C-363,

Gali No.12, New Usmanpur, Delhi is a temporary construction and is

presently in a precarious condition and requires repairs and

maintenance. Property No. C-603 (LIG) , Sector-19, NOIDA is also a

residential property. The answering respondent has no knowledge

about the FDRs alleged by the petitioner. Submission is that there was

an oral partition which had been effected between the family members

during the life time of Rajesh Sharma as the deceased was apprehensive

that the petitioner would create problems with his mother and would

disturb the family peace. To ensure family harmony and peace, the

deceased had as per this arrangement desired that the property bearing

no.C-603 (LIG) Sector-19, NOIDA be given to the petitioner. The

value of this property was more than 30 lacs and since the total value of

the property of the deceased was about Rs.90 lacs, each of the five legal

heirs were entitled to a property valued at Rs.18 lacs each. Accordingly,

for the petitioner to enjoy the property at NOIDA and to get the property

mutated in his name he had to pay Rs.12 lacs to the respondent nos.2 to

5 as per the arrangement but the same has not been complied with.

Contention is that the petitioner has a grave ill-will against his mother

and other siblings and no useful purpose would be served in granting

letters of administration to the petitioner. The petition be dismissed.

4     Rejoinder has not been filed.

5     Record shows that time and again since it was a family dispute

the matter had been sent for mediation. On the application under Order

XXXIX Rule 1 and 2 CPC the parties had also been directed to maintain

status quo qua the title, possession and construction of the aforenoted

properties.

6 Mediator has submitted its report dated 14.7.2014 reporting a

case of non-settlement. Record of the mediation shows that on several

dates i.e. on 13.5.2014, 22.5.2014, 02.06.2014,03.7.2014 and 14.7.2014

parties along with their respective counsels had appeared before the

Mediator and the matter was discussed at length but the mediation ended

at a non-settlement.

7 Learned counsel for the respondents have place reliance upon a

judgment of a Bench of this Court reported as MANU/DE/4848/2013

Shubhra Singhal Vs. State and Ors. to support his submission that in an

eventuality where all the legal heirs are at cross fire with one another

and there is no possibility of a settlement, all talks of mediation having

failed this would be a fit case, where petition should be dismissed;

submission being that the whole purport of the grant of letters of

administration would stand frustrated and the petition necessarily would

have to be aborted; the parties would not be remediless, it would be

open to the parties to file a suit for partition.

8 Arguments have been refuted. It is pointed out that letters of

administration are an exercise of discretion by the concerned Courts and

the submission of the learned counsel for the respondent that the letters

of administration would no serve useful purpose is a mis-belief. Further

submission being that if this Court is not inclined to grant letters of

administration in favour of the plaintiff alone it may do so in favour of

all the parties.

9 Submission being reiterated that since the respondent himself has

stated that the property bearing No.C-363, Gali No.12, New Usmnapur,

Delhi is in a dilapidated and precarious condition, in such a situation if

the properties of the deceased are not preserved, these would become

wasted and as such it would be expedient to grant letters of

administration. To support this submission learned counsel for the

petitioner has place reliance upon a judgment of this Court reported as

2009 Legal Eagle (Del) 640 Raj Rani Bhasin Vs. State as also the

judgment of the Supreme Court reported as 2003 AIR (SC) 3669 Delhi

Development Authority Vs. Vijay C.Gurshaney

10 Record has been perused.

11 On the perusal of the record and the facts as transpire from the

factual matrix of the case, it appears that the parties are at loggerheads

with one another. The petitioner is the elder brother of respondents No.

3 to 5. He is the son of respondent No. 2. Except for the petitioner, all

other class I heirs of deceased Rajesh Sharma are on one side. Mr.

Jayant K. Mehta, Advocate is representing all the respondents although

a formal written statement had been filed by respondent No. 3 alone. It

is their case that the petitioner had no love and affection for their

deceased father even during his lifetime and that is why an oral family

settlement had been entered into between the parties. This Court has

been informed that property No.C-243, Gali No. 12, Usmanpur was the

residents of the parents of the parties where their widowed mother is

presently living. The second property i.e. property bearing No.C-363,

Gali No.12, New Delhi although not in a very good condition has been

tenanted out to a third persons and the rent is being received by the

respondents.

12 Letters of administration may be granted to a grantee under

Section 218 of the said Act. This Section provides that where any person

has died intestate, the administration of his estate may be granted to a

person who according to the rules, for the distribution of the estate

applicable in the case of the deceased, would be entitled to the whole or

any part of the deceased's estate. Under the Hindu law, a class I legal

heir is entitled to estate of the deceased father if his father has died

intestate. There is no dispute to the proposition that the petitioner who is

the son of the deceased can file such a petition. Section 273 of the said

Act provides that once letters of administration have been given to a

party, it shall have effect over all the properties of the deceased, both

moveable and immoveable. It is however settled position at law that the

person to whom letters of administration are granted does not thereby

entitled to the property or estate of the deceased; the estate will succeed

according to law of succession applicable to the deceased.

13 The purpose of grant of letters of administration is only to enable

the administrator so appointed by the Court to collect/assimilate the

properties of the deceased and to deal with the various authorities with

whom the properties of the deceased may be vested or recorded and

thereafter the same be transferred in the names of the successors in

accordance with law of succession applicable to the deceased. The

administrator in the course of the proceedings is required from time to

time to file the accounts in the Court with respect to the administration

of the estate of the deceased.

14 The power to grant letters of administration is a discretionary

power which is vested with the Court and where acrimony between the

parties (as in the instant case) is not only evident from the pending

litigation and the pleadings made in the present proceedings but is even

otherwise writ large and the parties are not able to see eye to eye and

even the Court having made several efforts to reconcile their differences

through mediation yet the efforts for mediation having failed, the

purport of a grant of letters of administration would be an exercise in

futility. The case of the other class I heirs (the respondents) is that

parties had already entered an oral family settlement during the lifetime

of their father and the properties have been divided; the first property

No. C-243, Gali No. 12, Usmanpur is in the possession of their widowed

mother; the second property i.e. C-363, Usmanpur has been rented out

and the respondents are collecting rent from that property. The petitioner

has also failed to explain the assets that he has to collect of the deceased

in order to administer them. In these circumstances, this Court is of the

view that no useful purpose would be served in allowing the prayer

made in the present petition.

15 A Bench of this Court in Shubhra Singhal (supra) while dealing

with a dispute of a similar nature between two daughters and their step-

mother qua the estate of the deceased had in this context noted that the

settled principle of law is that the Court will not allow its time and

resources to be taken up by a proceeding which is to ultimately abort. In

that case, the Court had noted the grievances and grudges between the

parties were never ending; they could not have been settled even by

grant of letters of administration and the only remedy available to such a

party was to file a suit for partition.

16 This Court is of the view that in the present case also, since the

parties are not seeing eye to eye, even if the letters of administration are

granted in favour of the petitioner, it would wholly impossible for him

to able to distribute the estate of the deceased between the rightful

claimants. The proper course would be for the parties to file a suit for

partition. A suit for partition is admittedly distinct from an

administration suit and the administration of the estate may ultimately

even lead to a partition but where it has been noted that there is no need

for administration and it would almost be impossible for the grantee of

the letter of administration to administer the estate of the deceased (in

the light of the factual matrix of the present case), the remedy available

to the parties would be to seek a remedy of partition.

17 Accordingly, in exercise of its discretionary power, the Court

deems it fit to dismiss the petition. Ordered accordingly.

18    Petition disposed of.



                                              INDERMEET KAUR, J
JANUARY 20, 2014
A