Narender Sen Ahuja & Ors vs State & Anr
2017 Latest Caselaw 1359 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               DATE OF DECISION: 14 MARCH, 2017

+                              TEST.CAS. 57/2016

    NARENDER SEN AHUJA & ORS                     ..... Petitioners
                  Through: Ms. Leena Tuteja and Ms. Diksha
                            Bhatia, Advs.
                       Versus
    STATE & ANR                                ..... Respondents

Through: Mr. Zoheb Hossain and Mr. Deepak Anand, Advs. for Income Tax Department.

Mr. Amit Mahajan, Adv. for Enforcement Directorate.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The three petitioners namely (i) Mr. Narender Sen Ahuja; (ii) Mr. Sandeep Ahuja; and, (iii) Mrs. Kamla Devi Ahuja seek probate of a document dated 11th May, 2004 stated to be the validly executed last Will of the deceased Sh. Amar Nath Ahuja son of Late Sh. Nanak Chand Ahuja resident of 10, Jaipur Estate, Nizamuddin East, New Delhi who died on 31st October, 2007 pleading, (a) that the deceased at the time of his death had a fixed place of abode at 10, Jaipur Estate, Nizamuddin East, New Delhi; (b) that the three petitioners have been named as the joint executors of the document claimed to be the Will; (c) that all the assets movable and/or immovable of the deceased have been amicably and harmoniously distributed / settled between the beneficiaries / legal heirs; (d) that the petitioners have recently come to know of two overseas bank accounts,

which were not part of the document claimed to be the Will; (e) that when the petitioners came to know of the said accounts, the petitioner No.1 vide letter dated 19th August, 2015 wrote to UBS Switzerland AG, informing the demise of Mr. Amar Nath Ahuja and asking for the statement of account of the said accounts since the date of opening of the accounts; (f) that UBS Switzerland AG replied stating that in order to release the funds, they would require Death Certificate and Court sealed copy of grant of probate; (g) that the petitioner No.1 vide letter dated 15th March, 2016 enquired the closing balance, as on date, of the said, accounts; (h) that UBS Switzerland AG vide letter dated 18th March, 2016 informed the balance as on date of death; (i) that the petitioner No.1 vide another letter dated 8 th April, 2016 enquired about the balance in the accounts as on date; (j) that UBS Switzerland AG vide letter dated 11th April, 2016 informed that the valuation of the assets in the name of the deceased as on 31st March, 2016 in UBS Custody Account No.274-732006 was 62595.18 CHF equivalent to INR 43, 51,092/- and in UBS Savings Account No.279-C4717971 was 270901.55 CHF equivalent to INR 1,88,30,805; (k) that in terms of the document claimed to be the Will, any other assets not stated in the Will have been bequeathed to the petitioner No.3 Mrs. Kamla Devi Ahuja being the wife of the deceased Sh. Amar Nath Ahuja; (l) that the petitioners will administer according to the law all the estate, which by law devolves and vests on the legatees; (m) that no other petition / application has been made to any other Court for probate of the Will of the deceased or for letters of administration relating to the estate of the deceased. Probate is thus sought with regard to the said two overseas bank accounts.

2. The petition was entertained and notice thereof issued to the respondent No.2 Ms. Jyotsna Sood being the only natural heir of the deceased, besides the three petitioners; notice was also issued to the Collector having jurisdiction over the place of residence of the three petitioners; and to the Commissioner of Income Tax and to the Enforcement Directorate, Department of Revenue Intelligence; citation was also ordered to be issued in the newspaper 'The Times of India' and 'Navbharat Times' and by publication on the Notice Board in the Office of the Collector having jurisdiction over the place of residence of the three petitioners, as disclosed in the petition.

3. The respondent No.2 Ms. Jyotsna Sood being the daughter of the deceased has filed an affidavit dated 30th September, 2016 supporting the document claimed to be the Will and the petition and has given her no objection to grant of probate in favour of the petitioner No.3 Mrs. Kamla Devi Ahuja.

4. Citation ordered to be issued was also issued. None has filed any objections to the petition.

5. The Assistant Collector, Grade-I, Sub Division (Defence Colony), New Delhi has filed a response dated 19th September, 2016 to the effect that the petitioners stated that valuation of Property No. 10, Jaipur Estate, Nizamuddin East, New Delhi is not required to be done.

6. The Income Tax Department through the senior standing counsel has also filed a response to the effect that the fair market value of the amounts in

the two bank accounts was declared and accepted as Rs.2,48,89,725/- on which a tax and penalty of Rs.1,49,33,836/- was paid by the declarant.

7. I have put it to the counsel for the petitioners that if the petitioners seek probate of the document dated 11th May, 2004 as the Will of the deceased Sh. Amar Nath Ahuja, besides proving the same by examining the attesting witnesses thereof, will also have to pay stamp duty on the value of the entire estate bequeathed thereunder.

8. The counsel for the petitioners states that the rest of the estate, save the monies lying in the overseas bank accounts, has already been amicably distributed between the beneficiaries thereof; so far as the city of Delhi is concerned, it is not mandatory to have the Will probated for seeking rights in property inherited thereunder. The counsel thus states that probate of the Will limited to the amounts in the overseas bank accounts be granted.

9. In my opinion, probate cannot be granted only with respect to some of the assets bequeathed under the Will. A Division Bench of the High Court of Bombay in Sumitrabai Nagesh Nadkarni Vs. Vishweshwar Ganappayya Nadkarni ILR (1946) Bombay 106 held that since under the Indian Succession Act, 1925, the effect of the grant of probate is that the executor completely represents the estate of the deceased, it is not open to the Court to confer a limited grant. The contention that Section 214 of the Act enables a party to apply for a probate limited to the collection of debts or to the Court to issue such grant was held to be untenable. A subsequent Division Bench of the Madras High Court in In Re: T.K. Parthasarathi Naidu AIR 1955 Mad 411 also on an examination of the provisions of the Indian

Succession Act and a plethora of case law held that it is the general principle that normally the executor represents the whole estate of the deceased and if applies for probate then it should be for the whole of the estate and not for a fraction of it or in respect of a specific property in which alone the particular legatee might be interested. It was further held that only in exceptional cases falling under Sections 254 to 257 of the Act, a probate or letters of administration limited to specific item of property or a fraction of the estate will be granted. In the facts of that case, Sections 254 to 257 of the Act were held to be not attracted.

10. Section 254 of the Act provides that when a person has died intestate, or leaving a will of which there is no executor willing and competent to act or where the executor is, at the time of the death of such person, resident out of the State, and it appears to the Court to be necessary or convenient to appoint some person to administer the estate or any part thereof, other than the person who, in ordinary circumstances, would be entitled to a grant of administration, the Court may, in its discretion, having regard to consanguinity, amount of interest, the safety of the estate and probability that it will be properly administered, appoint such person as it thinks fit to be administrator. Section 255 provides that whenever the nature of the case requires that an exception be made, probate of a Will or Letters of Administration with the Will annexed, shall be granted subject to such exception. Section 256 provides that whenever the nature of the case requires that an exception be made, letters of administration shall be granted subject to such exception. Section 257 provides that whenever a grant with exception of probate, or of letters of administration with or without the Will

annexed, has been made, the person entitled to probate or administration of the remainder of the deceased's estate may take a grant of probate or letters of administration of the rest of the deceased's estate.

11. A Division Bench of the High Court of Kerala in K.M. Varghese Vs. K.M. Oommen AIR 1994 Ker 85 however in the context of grant of letters of administration as distinct from a probate though with a copy of the Will annexed held that the Court is not totally devoid of jurisdiction in the matter of granting letters of administration even if the entire property scheduled in the Will is not included in the petition.

12. I have suggested to the counsel for the petitioners that without proving the Will, on the basis of relationship, a letters of administration limited to entitling the petitioners or any of them to receive the amounts in the overseas bank accounts and to give a discharge to UBS Switzerland AG can be granted and in which case the petitioners will have to pay stamp duty only on the amount lying in the said overseas bank accounts.

13. The counsel for the petitioners is agreeable thereto.

14. The petitioners on the basis of the documents filed and the averments in the petition and in the affidavits accompanying the same have proved that the three petitioners and the respondent No.2 Ms. Jyotsna Sood are the only natural heirs of the deceased Sh. Amar Nath Ahuja. As per the petitioners and the respondent No.2 Ms. Jyotsna Sood, the petitioner No.3 Mrs. Kamla Devi Ahuja is entitled to receive the amounts in the overseas bank accounts of the deceased Sh. Amar Nath Ahuja. Need to relegate the petitioners to

give evidence by filing affidavit by way of examination-in-chief in this respect is not felt.

15. The petition is thus allowed in terms of above. Subject to the petitioners complying with the requisite formalities, a letters of administration is ordered to be granted to the petitioner No.3 Mrs. Kamla Devi Ahuja with respect to the assets, comprising of the amounts lying in the overseas bank accounts aforesaid, of the deceased Sh. Amar Nath Ahuja. However, since all the natural heirs have stated that the petitioner No.3 Mrs. Kamla Devi Ahuja only is entitled to the said amounts lying in the aforesaid overseas bank accounts, she is exempted from furnishing a surety for administration bond.

16. The petition is disposed of.

RAJIV SAHAI ENDLAW, J.

MARCH 14, 2017 'bs/gsr'..

(corrected & released on 27th March, 2017)