Kamla Devi vs State
2018 Latest Caselaw 781 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         TEST. CAS. 48/2000

%                                                   2nd February, 2018

KAMLA DEVI                                              ..... Petitioner
                                         Through:   None.

                          versus

STATE                                                  ..... Respondent

Through: None.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?        YES

VALMIKI J. MEHTA, J (ORAL)

TEST. CAS. 48/2000 and I.A. No. 15216/2010 (under Section 151 CPC)

1. This matter is on the Final Board of this Court since

12.11.2017, no one appears for the petitioner or the objector although

it is 12 noon. I have therefore gone through the entire record and am

proceeding to decide the case.

2. This testamentary case is filed by the petitioner Smt.

Kamla Devi seeking probate of the Will dated 26.5.1995 said to be

executed by one Sardar Gurcharan Singh Dhingra who expired at

Delhi on 18.6.1995. At the time of his death the deceased Sardar

Gurcharan Singh Dhingra was residing at SFS Flat no. 143, Hauz

Khas, New Delhi. It is this Hauz Khas property which the petitioner

claims has been bequeathed to her in terms of the Will dated

26.5.1995 of late Sardar Gurcharan Singh Dhingra. In terms of the

facts which have emerged on record during the trial of this

testamentary case admittedly the petitioner was a maid of the deceased

Sardar Gurcharan Singh Dhingra and who also claimed to be a wife of

Sardar Gurcharan Singh Dhingra but not only no evidence has been

led of any marriage of the petitioner with Sardar Gurcharan Singh

Dhingra but the fact of the matter is that the petitioner admits that she

is the wife of Sh. Ram Chander and there was no divorce of the

petitioner with Sh. Ram Chander.

3. The petition has been contested by the objector Smt. Inni

Dhingra who is the wife of the son of deceased testator Sardar

Gurcharan Singh Dhingra. As per the objections filed by Smt. Inni

Dhingra the present petition is prayed to be dismissed on two counts.

Firstly, it is argued that Sardar Gurcharan Singh Dhingra had executed

his Will dated 5.4.1994 in favour of the objector with respect to the

Hauz Khas flat and the objector has obtained letters of administration

of the Will dated 5.4.1994 from the court of the District Judge of

Delhi on 15.9.2000. The second ground for dismissal of the

testamentary case is that it is pleaded that the Will dated 26.5.1995

propounded by the petitioner has been forged and fabricated by the

petitioner.

4. At the outset, I would like to note that in the Will which

is relied upon by the petitioner dated 26.5.1995 no executor has been

appointed and therefore in view of Section 222 of the Indian

Succession Act, 1925 probate cannot be granted of the Will. What will

however be granted, in case this testamentary case has to be allowed,

is a letter of administration with the Will annexed.

5. The following issues were framed in this testamentary

case on 8.8.2005:-

"1. Whether the present petition is barred by time? (OPD)

2. Whether the Will executed by the testator suffers from importunity? (OPD)

3. Relief?"

6. Petitioner in support of her case has filed her own

affidavit by way of evidence which has been exhibited as Ex. PX.

Petitioner has been cross-examined on 6.12.2006. Petitioner in her

affidavit of evidence has proved the certified copy of the Will dated

26.5.1995 as Ex.PW1/1 and this Will is also proved through one

attesting witness PW-4, namely, Sh. D.P. Singh, Advocate. Sh. D.P.

Singh, Advocate is one of the attesting witness of the Will dated

26.5.1995. Both, the petitioner and the attesting witness PW-4 Sh.

D.P. Singh have been cross-examined. Objector has filed affidavit by

way of evidence through her attorney Sh. Bawa Harwinder Singh and

has inter alia proved the certified copy of the letter of administration

granted by the court of the District Judge, Delhi, as Ex.RW1/17. This

letter of administration has been granted with respect to the last Will

Ex.P-1 dated 5.4.1994 of late Sardar Gurcharan Singh Dhingra.

7. In my opinion, this testamentary case is liable to be

dismissed though petitioner and the attesting witness PW-4 Sh. D.P.

Singh have given their testimonies and proved the certified copy of the

Will dated 26.5.1995 as Ex.PW3/1. The testamentary case has to be

dismissed for the reason that the original of the Will which is relied

upon by the petitioner has not seen the light of the day and there is no

explanation which is given by the petitioner or PW-4 Sh. D.P. Singh

as to why the original of the Will is not forthcoming. Certified copy

of the Will existing in the Sub-Registrars record is only secondary

evidence of the Will and not primary evidence because primary

evidence of the Will is the original Will itself. The fact that it is only

the original Will which can be proved for granting a probate of letter

of administration becomes clear from Section 70 of the Indian

Succession Act and which provides that a Will can be revoked by

destroying the same such as by tearing the same or by burning the

same. This Section 70 of the Indian Succession Act reads as under:-

"70. Revocation of unprivileged will or codicil. -No unprivileged will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same."

(underlining added)

8. The only way in which the Court will accept secondary

evidence being a certified copy of the Will as a substitute of the

original Will where evidence is led that the original Will has been

destroyed accidently and it has not been destroyed by the testator with

the intention of revoking the same. This is clear from the language not

only of Section 70 of the Indian Succession Act as reproduced above

but also from Section 237 of the Indian Succession Act which reads as

under:-

"237. Probate of copy or draft of lost will.-When a Will has been lost or mislaid since the testator's death, or has been destroyed by wrong or accident and not by any act of the testator, and a copy or the draft of the will has been preserved, probate may be granted of such copy or draft, limited until the original or a properly authenticated copy of it is produced." (underlining added)

9. There is no evidence led by the petitioner that the original

Will dated 26.5.1995 has been lost or misplaced or has been destroyed

only by a wrong or accident and not with the intention to revoke the

same as stated in Section 70 of the Indian Succession Act. Therefore

in view of the fact that it is not proved that original of the alleged Will

dated 26.5.1995 has been lost or mislaid or has not been destroyed by

wrong or accident, in view of the provisions of Sections 70 and 237 of

the Indian Succession Act, it has to be held that the original Will

would have been destroyed by the act of the testator for revoking the

said instrument.

10. For arriving at a conclusion for dismissal of this

testamentary case because of provisions of Sections 70 and 237 of the

Indian Succession Act in view of the undisputed position emerging on

record that only the certified copy of the Will has been proved as

Ex.PW3/1 and original of the Will has not seen the light of the day

with the fact that it has not been deposed as to the original Will being

destroyed by a wrong act or accident, this Court is proceeding on the

basis that the original Will dated 26.5.1995 was duly executed in view

of the deposition of PW-4 Sh. D.P. Singh and who had deposed in his

examination-in-chief with respect to the due execution and attestation

of the Will and he has stood his ground during his cross-examination

or nothing adverse has been elicited. Accordingly in my opinion this

probate petition is liable to be dismissed firstly because there is no

original of the Will dated 26.5.1995 which has been proved on record

and only certified copy has been proved as Ex.PW3/1 and no

testimonies being given on behalf of the petitioner and her witness Sh.

D.P. Singh that the original of the Will has been destroyed only by an

unintentional act or a wrong act and not deliberately by the testator.

11. The second reason for dismissing of the probate petition

is that undisputedly a letter of administration was granted in favour of

the objector by the District Judge's order dated 15.9.2000 which has

been proved as Ex.RW1/17. This order Ex.RW1/17 makes it clear

that the Will dated 5.4.1994 of late Sardar Gurcharan Singh Dhingra is

the last Will of late Sardar Gurcharan Singh Dhingra and which was

proved as Ex.P-1 in the aforesaid letter of administration case filed by

the objector Smt. Inni Dhingra.

12. In law, the decision of a letter of administration case

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

of the Indian Evidence Act, 1872 and which provision reads as under:-

"41. Relevancy of certain judgments in probate, etc. jurisdiction- A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to an specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

Such judgment, order pr decree is conclusive proof-- that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;

that any legal character, to which it declares any such person to be entitled, accrued, to that person to be entitled, accrued, to that person at the time when such judgment, order or decree declares it to have accrued to that person;

that any legal character which it takes away from any person ceased at the time from which judgment, order or decree declared that it had ceased or should cease;

and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property."

13. Finality with respect to a letter of administration being

granted of a Will is also clear from the provision of Section 211 of the

Indian Succession Act and which provides that a letter of

administration once granted has the effect that the person to whom the

letter of administration is granted will be treated as a legal

representative for all purposes of the deceased testator and that the

property of the deceased testator/person vests in the person to whom

the letter of administration is granted. Section 211 of the Indian

Succession Act reads as under:-

"211. Character and property of executor or administrator as such.- (1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.

(2) When the deceased was a Hindu, Muhammadan, Buddhist, Sikh, Jaina or Parsi or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person."

14. The only way in which letter of administration granted

would not have been binding was if the same was recalled in

proceedings instituted under Section 263 of the Indian Succession Act

providing for filing of an application/petition for revoking the letter of

grant of administration. Admittedly no application has been filed by

the petitioner for revocation of the letter of administration granted to

the objector Smt. Inni Dhingra in terms of Ex.RW1/17. Even the

limitation period for filing of the application under Section 263 of the

Indian Succession stands expired and for which period of limitation is

three years under Article 137 of the Limitation Act because petitioner

was put to notice of the grant of letter of administration Ex.RW1/17 in

terms of the objections filed by the objector way back on 29.10.2004.

Therefore once there is finality to the letter of administration

Ex.RW1/17 then no fresh letter of administration can be granted in

favour of the petitioner in view of Section 211 of the Indian

Succession Act read with Section 41 of the Indian Evidence Act.

15. For the aforesaid reasons there is no merit in the petition

and the same is hereby dismissed, leaving the parties to bear their own

costs.

FEBRUARY 02, 2018                          VALMIKI J. MEHTA, J
AK