V. Sukumar Iyer vs The State & Ors.
2016 Latest Caselaw 252 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     TEST.CASE NO. 77/2011

%                                                   13th January, 2016

V. SUKUMAR IYER                                      ..... Petitioner
                          Through:       Ms. Sagari Dhanda, Advocate.


                          versus

THE STATE & ORS.                                    ..... Respondents

                          Through:       None

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This testamentary case is filed by the petitioner seeking probate

of the Will of late Dr. V. Mallika, who died at Delhi on 3.5.2011. Petitioner

is the real brother of the deceased. Probate is sought of the last Will and

testament dated 22.6.2010 of Dr. V. Mallika. Movable properties have been

detailed in Annexure 'A' to the petition whereas the immovable properties

have been detailed in Amended Schedule 'B' (as amended). Petitioner has

been appointed as an executor of the Will dated 22.6.2010 of Dr. V. Mallika

and hence the present probate petition.

2. Annexure 'A' and Amended Schedule 'B' (as amended)

containing details of movable and immovable properties read as under:

"ANNEXURE A

SCHEDULE OF DEBTS AND SECURITIES

S. DESCRIPTION NO. OF DISTINCTIVE FACE MARKET AMOUNT NO. UNITS/ NO. VALUE VALUE SHARE

1. SHARE 200 545541 TO Rs. 10/-

      CERTIFICATE             545740
      ISSUED     BY
      STATE   BANK
      OF MYSORE
2.    SHARE          252         1078335 TO Rs. 5/-
      CERTIFICATE                1078586
      ISSUED BY J.K.
      LAXMI
      CEMENT
      LIMITED
3.    SHARE          18          0019918665   Rs. 10/-
      CERTIFICATE                TO
      ISSUED     BY              0019918682
      INDIAN
      METALS      &
      FERRO ALLOYS
      LIMITED
4.    SHARE          1           0021801103 Rs. 10/-
      CERTIFICATE                12      TO
      ISSUED     BY              0021801103

      INDUSTRIES
      LTD.
5.    FIXED DEPOSIT              RECEIPT                            1,40,510/-
      RECEIPT                    NO. 161247
      ISSUED     BY
      TATA MOROTS
      LIMITED





 6.   SAVING BANK              BAL. AS ON
     ACCOUNT NO.              2ND    JULY
     90682010040731           2011      Rs.
     WITH                     4,01,740.84
     SYNDICATE
     BANK,
     MAULANA
     AZAD MEDICAL
     COLLEGE, NEW
     DELHI
7.   SAVING BANK              BAL. AS ON
     ACCOUNT NO.              2ND    JULY
     90682170000108           2011     RS.
     WITH                     1,06,395.73
     SYNDICATE
     BANK,
     MAULANA
     AZAD MEDICAL
     COLLEGE, NEW
     DELHI
8.   STATEMENT OF             Rs.
     ACCOUNT                  14,380,785/-
     FROM 1ST APRIL           AS ON 13TH
     2000 TO 16TH             MAY 2011
     MAY 2011 OF
     ICICI     BANK
     DEMAT
     ACCOUNT
     BEARING
     CLIENT'S     I.D.
     NO. 30699087
9.   STATEMENT OF
     DEMAT
     ACCOUNT NO.
     005112308001 OF
     INDUSIND
     BANK,
     BARAKHAMBA
     BRANCH,
     CLINENT      I.D.
     NO. 10580257





 10.   ANNUAL
      ACCOUNT
      STATEMENT OF
      FEDELITY
      FORM 1.04.2007
      TO 31.03.2008
11.   ACCOUNT                            1,29,813/-
      STATEMENT OF                          +
      RELIANCE                           45,485/-
      MUTUAL
      FUNDS
      ACCOUNT NO.
      40935667391,
      41610467872 &
      403227583385
12.   STATEMENT OF       40,000/-
      ACCOUNT OF
      SBI FUND SB
      90672110000108
      FROM 22.8.2005
      TO 20.4.2007
13.   STATEMENT OF       40,000/-
      ACCOUNT OF
      STANDARD
      CHARTERED
      MUTUAL FUND
      FOLIO        NO.
      355942/47 FROM
      26.9.2005
      31.3.2008
14.   STATEMENT OF       70,000/-
      ACCOUNT DSP
      MERRILL
      LYNCH
      MUTUAL FUND
      ACCOUNT
      NO./FOLIO NO.
      1036364/49     &
      721957/42 FROM
      1.4.07 TO SEPT.
      2007 AND FROM
      1.4.2006      TO
      18.1.2007.




 15.        HSBC MUTUAL                             20,000/-
           FUND
           STATEMENT OF
           ACCOUNT
           FOLIO        NO.
           477363/19.
16.        UTI    MUTUAL                                               Rs.
           FUND                                                        17,076.13 as
           INVESTOR I.D.                                               on 6.6.2011
           NO. 279284747
17.        ICICI                                                       Rs. 38,352/-
           PRUDENTIAL
           MUTUAL FUND
18.        SUNDARAM
           BNP PARIBAS
           LEADERSHIP
           FUND
19.        LOCKER       NO.           721957/42                        Rs.
           129,                                                        10,00,000/-
           SYNDICATE
           BANK MAMC,
           NEW        DELHI
           WITH       SOME
           JEWELLERY
           BELONGING TO
           DR.           V.
           MALLIKA


TOTAL APPROX.       Rs. 1,63,84,671/-

(ONE CRORE SIXTY THREE LACS EIGHTY FOUR THOUSAND SIX HUDRED SEVENTY ONE ONLY)"

"AMENDED SCHEDULE 'B'

IMMOVABLE PROPERTIES

S.NO. PARTICULARS MARKET VALUE

1. Flat No. Amazona - 11, First Floor of Rs. 30,00,000/-

"ELDECO GREEN MEDOWS" POCKET c, Sector PI, Greater Noida City, Dist, Gautam Budh Nagar, U.P.

2. Flat No. B-101, (AIIMS Group Housing Rs. 15,00,000/-

Society, Charak Sadan, Vikas Puri, New Delhi.

3. Plot No. H-75, Sujay Block, Sanjay Nagar Rs. 50,000/-

Scheme, Jangarna Sehkari Avas Samiti Limited, Ali Nagar, Khurd, Tehsil, Dist. Lucknow, U.P.

4. Property bearing No. 71, Block D-6, Kendriya Rs. 5,00,000/-

Vihar, Bangalore - 560064.

5. Apartment in the KOSMOS Jaypee Greens, Rs. 13,69,200/-

Noida - 201304, U.P.

TOTAL: Rs. 64,19,200/-

Rupees Sixty Four lacs ninetee thousand and two hundred only)"

3. No objections have been filed to the probate petition and

ordinarily the probate ought to be granted inasmuch as the petitioner has led

his own evidence as also the evidence of the two attesting witnesses Dr.

Ranjana Gondal as PW2 and Dr. Vinod Kumar Gupta as PW3, and all these

witnesses have duly proved the execution and attestation of the Will besides

the soundness of the mind of the deceased at the time of making of the Will,

however, the probate which has to be granted will have to be with certain

restrictions as given hereinafter.

4. A reference to the Will dated 22.6.2010, proved as Ex. PW1/3,

shows that by this Will the deceased Dr. V. Mallika has bequeathed her

entire estate for the purposes of charity. Since this Court proposes to grant a

limited period probate of a year, and which is to be extended year by year, it

would be necessary to reproduce the entire Will dated 22.6.2010, and

therefore, the said Will is reproduced as under:

"WILL

KNOW ALL MEN BY THESE PRESENTS that I Dr. V.

MALLIKA, d/o, Late N.E.Venkatesan, presently residing at my official residence at House No. 10, Type 6, Maulana Azad Medical College Campus, New Delhi-110002, being in full senses and sound mind and good health without being under any coercion or undue influence from any quarter out of my free will and volition do hereby make this my last WILL AND TESTAMENT in New Delhi on this the 22nd day of June Two Thousand Ten A.D. WHEREAS I am a Doctor by profession and have been in Government service since 1975, presently in the Super Administrative Grade holding the post of Director-Professor under the Central Health Services.

AND WHEREAS out of my own income I have acquired immovable properties at different places in India and also have savings and investments in my own name.

AND WHEREAS I am a confirmed unmarried woman and have 4 more years of service left before superannuation and approaching the end of my professional career I have consciously willfully and without any external influence or coercion decided to make and execute the present WILL.

AND WHEREAS I have two sisters and one brother all of whom are well established in life and require no financial assistance or help from me.

AND WHEREAS always being aware and conscious of my responsibilities towards the society and having always cherished the desire to contribute towards welfare of the society to the extent of my abilities, I have now decided to donate my properties and assets to charities in the manner as set out hereinafter:

(a) 20% of my total properties both movable and immovable shall be contributed to the Cancer Institute-Drug Endowment Policy;

(b) further 10% of my total properties both movable and immovable shall be donated to Ramana Ashram at Thiruvannamalai;

(c) further 20% of my total properties both movable and immovable shall be donated towards development of Nolanbai Village in

Tamil Nadu.

(d) the balance shall be donated to charities by the Executor of this Will as found fit and proper by him.

For this purpose of giving effect to the donations and charities mentioned above the Executor of this WILL shall always be free to sell and dispose of my immovable properties if he considers it necessary and realize the consideration money for utilisation towards donations and charities. He shall be entitled to defray the costs and expenses incurred for carrying out such sale out of the consideration amount.

For sake of adequate clarity and avoidance of any ambiguity, I expressly state as under:

That the Executor of this WILL, shall have absolute discretion to decide the best time and manner to dispose off the said assets and shall in doing so exercise the same care and skill as a man of ordinary prudence and integrity would in his own case do.

Further, if the Executor of this WILL has reasonable grounds to believe that certain events have occurred that the beneficiaries do not merit the receipt of the intended donations, may exercise his discretion to change the beneficiary/(ies) to meet the intent of the testator.

I hereby appoint my brother Sh. V. Sukumar Iyer, son of Late N.E.Venkatesan, and resident of 26, Newton Road, 05-03, Newton View, Singapore-307957, with his consent as the sole Executor of this may last Will and Testament and he will take out Probate of this WILL and shall administer my properties in the manner set out in THESE PRESENTS. Executor of this WILL shall be entitled to defray the amount of costs and expenses borne by him in taking out Probate and in administering my properties out of the amount realised from my movable properties.

On the day month and year abovementioned I put my hand signature and seal on this my last Will in presence of the witness named below and they sign in my presence."

5. A reference to the terms of the Will shows that the deceased

Dr. V. Mallika/executant did not marry in her life time. She had two sisters

and one brother, the brother being the petitioner to this probate petition. All

the siblings as per the Will are well-settled in life. Out of the estate of Dr.

V. Mallika, 20% of the properties are to be donated to the Cancer Institute-

Drug Endowment Policy, 20% of the properties have to be used towards

development of Nolanbai Village in Tamil Nadu and 10% of the properties

are to be donated to Ramana Ashram at Thiruvannamalai. The balance 50%

of the assets are to be given to the executor for being donated to charities by

the executor as thought fit and proper by him. Effectively, therefore, the

entire estate has been donated by the deceased towards public charities and

public purposes. The duty of the executor to whom probate has to be

granted would therefore be onerous in a case such as the present considering

not only the nature of bequest but also because of the existence of

considerable amount of movable and immovable properties of the deceased

executant. Annexure 'A' to the petition shows that the value of the

immovable properties is Rs. 1,63,84,671/- and Amended Schedule 'B'

shows that the deceased executant had five valuable immovable properties,

being one flat at Gautam Budh Nagar, U.P., one flat at Vikas Puri, New

Delhi, one apartment in the KOSMOS Jaypee Greens, at NOIDA, U.P., one

plot at Ali Nagar in District Lucknow, U.P. and one other property at

Kendriya Vihar, Bangalore. Thus, there has to be sincere, thoughtful and

honest administration of the estate of the deceased Dr. V. Mallika by the

executor/petitioner.

6. I have given above the details of the properties of the deceased,

and as to how the executor has to deal with the same so as to use corpus and

the usufruct for benevolent purpose, as stated in the Will but it is noted with

some amount of concern that surprisingly the petitioner in para 6 of the

petition has claimed that by the Will dated 22.6.2010 only half of the

properties are given to the charity and other half has been bequeathed in

favour of the petitioner/executor. This statement in para 6 of the petition has

put some amount of concern in the mind of this Court because definitely the

Will dated 22.6.2010 of Dr. V. Mallika does not make her brother as an

owner of half of her estate. Accordingly, I put it to the counsel for the

petitioner that why this incorrect statement exists in the petition and counsel

for the petitioner initially sought to argue that the statement is correct and

which further added to the anxiety of this Court for granting of the probate,

however, it is ultimately conceded by the counsel for the petitioner that

actually the petitioner has to become the owner of half of the estate only for

the purpose of giving the same to charities ie 50% of the estate in terms of

the Will dated 22.6.2010 of Dr. V. Mallika has also to be given in donations.

7. In view of the above facts the Will dated 22.6.2010 of Dr. V.

Mallika has been proved to be duly executed and attested, and which has

been proved as Ex. PW1/3, probate is therefore granted to the petitioner of

the Will dated 22.6.2010 of Dr. V. Mallika, Ex. PW1/3, however, the

probate is granted subject to the following terms and which terms will

specifically be included in the probate which is granted on stamp papers:

(i) Probate is granted to the executor year by year ie one year at a

time, and subject to the petitioner at the end of the each year filing necessary

accounts in the court showing due performance of the duties of the executor

and also due administration and disposal of the estate for the purposes as

stated in the Will dated 22.6.2010, Ex. PW1/3.

(ii) A specific application will be made after expiry of each year

after grant of probate year by year and at which stage the court will examine

as to whether petitioner should or not continue as the executor.

(iii) Petitioner in a period of any one year of the grant/extension of

the probate will not be entitled to sell more than one immovable property of

the deceased as stated in Amended Schedule 'B' to the petition and the

petitioner will also not be entitled to sell more than 20% of the immovable

assets of the deceased in any one year.

(iv) Any immovable property if sold will necessarily be sold only at

the best possible market value and definitely not less than the circle rates

which are prevalent in the concerned area.

(v) Petitioner before actual grant of probate is entitled to liquidate

such of the movable assets through proper channels and at the best possible

market value so that necessary monies are available for payment of the

stamp duty of the probate.

(vi) All monies which are received on account of sale or otherwise

dealing with the properties of the deceased Dr. V. Mallika shall be put in a

bank account and shall be put in short term fixed deposits so as to earn

interest till the amounts are utilized in terms of the directions contained in

the Will dated 22.6.2010, Ex. PW1/3.

(vii) Petitioner will execute the necessary Administration Bond and

will undertake therein to the court for the due performance of his duties as

an executor of the Will dated 22.6.2010 of Dr. V. Mallika.

8. The testamentary case is therefore allowed and disposed of by

granting probate to the petitioner, however, subject to the categorical terms

as detailed in para 7 above.

JANUARY 13, 2016 VALMIKI J. MEHTA, J godara