Smt. Nishi Gupta vs State & Ors
2016 Latest Caselaw 853 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          TEST.CAS. No.43/2012
%                                                     4th February, 2016

SMT. NISHI GUPTA                                            ..... Petitioner
                           Through:      Mr. A.B. Pandey and Ms.
                                         Tejasvi Srivastava, Advocates
                           versus
STATE & ORS                                           ..... Respondents

                           Through:      Mr. Santosh Kumar Tripathi,
                                         ASc for respondent no. 1
                                         Mr.     Ravi        Varma      and
                                         Ms.Satakshi Sood, Advocates for
                                         the Objector

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?         YES

VALMIKI J. MEHTA, J (ORAL)

I.A. No. 19965/2012 (for modification of Order dated 4.7.2012)

This I.A. has already been disposed of vide an Order dated

05.12.2012, and therefore, this I.A. need not be shown in the list.

I.A. No. 20001/2012 (for exemption)

This I.A is only for exemption and the same is disposed of

accordingly.

I.A. 10945/2013 (u/S 151 CPC by IO, PS Mandir Marg, New Delhi)

This application is infructuous, inasmuch as, the Will in

question of late Smt. Damyanti Devi dated 15.1.2009 was given to the

Investigating Officer in terms of the Order of the learned Single Judge

of this Court dated 25.09.2013. I.A. is accordingly disposed of.

TEST.CAS. No.43/2012

1. This testamentary case is filed by one Ms. Nishi Gupta

who is the daughter-in-law (she is the wife of Mr. Alok

Gupta/respondent no.3, son of late Smt. Damyanti Devi) of the

deceased late Smt. Damyanti Devi who expired on 05.04.2010. By this

testamentary case, the petitioner seeks grant of the letters of

administration of the last Will dated 15.01.2009 of late Smt. Damyanti

Devi.

2. Besides respondent no. 1/State, there are five other

respondents. Respondent nos. 2 and 3; Mr. Ashok Gupta and Mr. Alok

Gupta; are the sons of late Smt. Damyanti Devi. Respondent no. 3 Mr.

Alok Gupta is the husband of the petitioner as already stated above.

Respondent nos. 4 to 6; Ms. Nisha Pratap, Ms. Usha Kuchhal and Ms.

Archana Gangal; are the daughters of late Smt. Damyanti Devi.

3. Respondent nos. 2 to 6 have already given their no

objection in favour of the petitioner for grant of letters of administration

of the Will dated 15.01.2009 of late Smt. Damyanti Devi. Since,

however, the present case is a testamentary case and filing of no

objections would not have been sufficient, therefore, petitioner has led

evidence to prove the Will.

4. In view of the above facts it is seen that the respondent

nos. 2 to 6 are the class I legal heirs under the Hindu Succession Act,

1956 of late Smt. Damyanti Devi and thus they are the only persons

who would have direct interest to the estate of late Smt. Damyanti Devi

in case there was no Will of late Smt. Damyanti Devi and she had died

intestate. The only other person who could have claimed locus or

interest in the present testamentary case would be a person who would

be relying upon any other Will of late Smt. Damyanti Devi other than

the Will dated 15.01.2009 of late Smt. Damyanti Devi which is

propounded in the present case.

5. At the stage, when the petitioner had led evidence of

herself and the two attesting witnesses to the Will, and the testamentary

case was to be disposed of, objections have been filed to the case by a

company M/s Vipul Infrastructure Developers Ltd. These objections

are essentially in the nature of a written statement to the main case.

Though the written statement/objections ought to have been filed much

earlier, inasmuch as, publication was effected in this petition on

12.01.2013 in the newspaper 'The Statesman', however, since the

objector company M/s Vipul Infrastructure Developers Ltd. claims that

it did not have knowledge of the present testamentary case, I have heard

the counsel for the objector M/s Vipul Infrastructure Developers Ltd.

6. In sum and substance, the objections filed by M/s Vipul

Infrastructure Developers Ltd. are on the basis that late Smt. Damyanti

Devi had claimed right, title and interest in a property No. D-7, Tower

No. B, Vipul Orchids Tower, 6 Aurbindo Marg, New Delhi, having

approximately area of 4,220 square feet, but, late Smt. Damyanti Devi

did not have the rights claimed in the property because as per the

objector there was no concluded agreement to sell in favour of late Smt.

Damyanti Devi.

7. It is an undisputed fact that late Smt. Damyanti Devi

during her life time had filed a suit being CS(OS) No.2287/2007 for

specific performance against the objector, and in this suit, the petitioner

in the present testamentary case, has already been impleaded as the

plaintiff on the death of late Smt. Damyanti Devi.

8. By the objection petition, the objector M/s Vipul

Infrastructure Developers Ltd. claims that the Will dated 15.01.2009 of

late Smt. Damyanti Devi is a forged and fabricated document and the

objector accordingly has already filed a complaint before the concerned

Court of Additional Chief Metropolitan Magistrate, District Courts,

Saket, New Delhi for offences under Section 420/120B etc under the

Indian Penal Code, 1860 wherein the existence and validity of the Will

of late Smt. Damyanti Devi dated 15.01.2009 is in question. It is stated

by the objector that since the Will dated 15.01.2009 of late Smt.

Damyanti Devi is forged and fabricated by the petitioner in collusion

with respondent nos. 2 to 6 in the present case, any decision in the

present testamentary case; and which will be a judgment in rem, will

affect the decision in the criminal case as also the decision in the

CS(OS) No.2287/2007, and therefore, this testamentary case be

dismissed. On behalf of the objector its counsel has alternatively

argued that as long as this Court makes observation that decision in the

testamentary case will not affect the decision as regards the existence

and validity of the Will in the criminal case filed by the objector and in

the suit CS(OS) No. 2287/2007, the objector has no objection to the

decision in this testamentary case.

9.(i) In my opinion, no doubt a judgment in a testamentary case

operates as a judgment in rem in view of Section 41 of the Indian

Evidence Act, 1872, however, merely because a judgment operates in

rem, it does not mean that any and every person can file objections in a

testamentary case. Only such persons can file objections in a

testamentary case who would either be the legal heirs of the deceased

testator under the Hindu Succession Act, 1956 if the deceased testator

had died intestate or such persons who would be setting up a

testamentary instrument other than the testamentary instrument which

is propounded in the present case being the Will dated 15.01.2009 of

late Smt. Damyanti Devi.

(ii) There is no law that any person whosoever can file

objections for grant of a probate/letters of administration with respect to

Will although such a person has no locus/right, title or interest to the

estate of the deceased as a legal heir of the deceased testator, whether

under the Hindu Succession Act or because of relying upon a

testamentary instrument of the deceased.

10. Reliance placed by the counsel for the objector on the

judgment in the case of Krishan Lal Dilawari vs. State & Ors. (2014)

210 DLT 439 is misplaced because in the said case it is nowhere held

by this Court that any and every person who has no claim to the estate

of the deceased, whether by natural succession or because of a

testamentary instrument can file objections in a probate/testamentary

case where a Will of the deceased testator is propounded.

11. Accordingly, I hold that the objector M/s Vipul

Infrastructure Developers Ltd. has no locus whatsoever to file any

objections in the present testamentary case which seeks letters of

administration of the Will dated 15.01.2009 of late Smt. Damyanti

Devi, inasmuch as, the objector M/s Vipul Infrastructure Developers

Ltd. has no claim to the estate of the deceased late Smt. Damyanti Devi.

Merely because the objector is a defendant and is disputing the rights

claimed by late Smt. Damyanti Devi in the suit for specific

performance which was filed by late Smt. Damyanti Devi in her life

time, will not mean that the objector can file objections in this

testamentary petition. Decision in the testamentary petition will in no

manner affect the defence on merits of the objector in the suit for

specific performance filed by late Smt. Damyanti Devi (and in which

the present petitioner has been substituted after the death of late Smt.

Damyanti Devi) inasmuch as the defence of the objector on merits will

be with respect to entitlement or dis-entitlement of late Smt. Damyanti

Devi (and now her legal heirs) as per the merits of the contract existing

or not existing between late Smt. Damyanti Devi and the objector with

respect to the property bearing No. D-7, Tower No. B, Vipul Orchids

Tower, 6 Aurbindo Marg, New Delhi, having approximately area of

4,220 square feet. Objections of M/s Vipul Infrastructure Developers

Ltd are, therefore, dismissed as not maintainable on account of lack of

locus of the objector.

12. The petitioner has already led evidence by way of

affidavits in this case. The first affidavit of evidence is filed by the

petitioner herself. The affidavits by way of evidence have also been

filed of the two attesting witnesses Mr. Prashant Kumar and Ms.Usha

Kuchhal.

13. The petitioner in her affidavit by way of evidence has

deposed with respect to late Smt. Damyanti Devi of her free will and

sound mind while executing her last Will dated 15.01.2009 which is

propounded in the present testamentary case. The attesting witness Mr.

Prashant Kumar in his evidence by way of affidavit has deposed with

respect to the Will dated 15.01.2009 typed in his presence and in the

presence of other witness and that late Smt. Damyanti Devi executed

the Will by putting her signatures in Hindi at two places in the presence

of the attesting witness Mr. Prashant Kumar and the other attesting

witness Ms. Usha Kuchhal. There is specific deposition in the affidavit

by way of evidence on behalf of Mr. Prashant Kumar of the points

where the deceased late Smt. Damyanti Devi signed and also the points

where he and other witness Ms. Usha Kuchhal signed. Attesting

witness has identified the signatures of both late Smt. Damyanti Devi as

well as of Ms. Usha Kuchhal. This attesting witness Mr. Prashant

Kumar has also deposed with respect to the soundness of mind of the

deceased late Smt. Damyanti Devi at the time of making of the Will

dated 15.01.2009 which is exhibited as Ex. P4 and that the Will dated

15.01.2009 was executed by late Smt. Damyanti Devi without any

pressure, coercion, force or duress. The other attesting witness Ms.

Usha Kuchhal has like wise identically deposed with respect to the due

execution and attestation of the Will.

14. In view of the evidences led by the petitioner herself and

of the two attesting witnesses Mr. Prashant Kumar and Ms. Usha

Kuchhal, and the fact that the sons and daughters of the deceased late

Smt. Damyanti Devi as respondent nos. 2 to 6 in this testamentary

petition have given their no objection for grant of the letters of

administration by filing their no objection by way of affidavit, I

therefore, hold that the petitioner is entitled to letters of administration

with the Will dated 15.01.2009 annexed, exhibited as Ex. P4, as being

the last Will and testament of late Smt. Damyanti Devi.

15. In view of the above, the testamentary case is allowed, and

letters of administration with the Will dated 15.01.2009 of late Smt.

Damyanti Devi annexed are granted to the petitioner on the petitioner

depositing the necessary stamp duty as required for letters of

administration. Since respondent nos. 2 to 6, who are the natural legal

heirs of late Smt. Damyanti Devi have given their no objection to the

grant of letters of administration in favour of the petitioner, petitioner

need not file any administration bond or surety bond.

16. The testamentary case is accordingly allowed and disposed

of leaving the parties to bear their own costs.

FEBRUARY 04, 2016/hkaur                           VALMIKI J. MEHTA, J