Skip to content


Sanjay Suri Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberProbate No. 49 of 2000
Judge
Reported inAIR2004Delhi9; 107(2003)DLT626; 2003(71)DRJ446; (2004)136PLR13
ActsIndian Succession Act, 1925 - Sections 218, 222, 232, 276, 278 and 291; Administration of Estates Act, 1971 - Sections 8; Colonial Probate Act, 1892; Supreme Court of Judicature (Consolidation) Act, 1925; Social Security Act, 1975
AppellantSanjay Suri
RespondentState and ors.
Appellant Advocate Ashwani Matta, Adv
Respondent AdvocateNemo
DispositionPetition allowed
Excerpt:
.....of an executor, appointed by the testator under the will, petitioner is not entitled to the grant of a probate. section 291--administration bond--exemption--requirement for the execution of an administration bond--section 291 has to be interpreted so as not being applicable to a case of a sole beneficiary and legal heir, under a duly proved will insofar as requirement of furnishing an administration bond is concerned--petitioner exempted from furnishing of an administration bond.;considering the nature of the testamentary and intestate succession, the object and purpose sought to be achieved by section 291 and thus applying the aforesaid principles of interpretation of statutes, it would be seen that section 291 of the. act is not intended to cover within its ambit the cases of a..........corporation, it is stated, mutated the property in favor of smt.kaushalya devi.4.petitioner seeks probate/letters of administration in respect of will dated 6.7.1993, by which the deceased smt.kaushalya devi bequeathed the immovable property, namely, wz-177, g-block, hari nagar, jail road, new delhi in favor of her grand son, petitioner, together with land and super structure thereon. the will had been duly registered as document no.29535 in book b volume 1996 at pages 170-177 on 6.7.1993 in the office of the sub-registrar, new delhi. notice to the aforesaid near relations, namely, smt.asha suri, smt.kiran sabharwal, smt.manisha chaudhary, smt.ritu chhatwal, respondent nos.2,3,4 and 5 respectively, were duly issued. citation was also published in 'the hindu' in the coimbatureand.....
Judgment:

Manmohan Sarin, J.

1.Petitioner, Sanjay Suri filed a petition for grant of probate/ Letters of Administration under Section 278 read with Section 218 of the Indian Succession Act (in short the Act) and seeking a probate in respect of the will of the deceased Smt.Kaushalya Devi dated 6.7.1993. The petition was instituted in May, 1998. However, the same was not registered on account of objections of non-filing of the affidavit regarding valuation of property. Petition was registered in September, 2000 on valuation being filed and issues were framed on 25.9.2000.

2.The deceased Kaushalya Devi, widow of late Sh.Khub Chand Suri expired on 22.3.1997. Her husband, Sh.Khub Chand Suri, who owned property bearing Municipal No.WZ-177, G Block, Hari Nagar, jail Road, New Delhi pre-deceased her on 4.11.1969. Late Sh.Khub Chand Suri and Smt.Kaushalya Devi had only one issue, namely, late Sh.Siri Ram Suri. Late Sh.Khub Chand Suri left behind the following legal heirs.

i)Smt.Kaushayla Devi- Widow of Shri Khubchand Suri

ii)Legal heirs of pre-deceased son Sh.Siri Ram Suri, who died intestate.

a) Smt.Kaushalya Devi being Mother

b)Smt.Asha Suri w/o Sh.Siri Ram Suri

c)Kiran Sabhawal d/o Sh.Siri Ram Suri

d)Manisha Chaudhary d/o Sh.Siri Ram Suri

e)Ritu Chhatwal d/o Sh.Siri Ram Suri

f)Sanjay Suri s/o Sh.Siri Ram Suri.

3.Petitioner's case is that on the death of Sh.Khub Chand Suri, who died intestate, half of the property devolved upon Smt. Kaushayla Devi and the other half of the property devolved upon the legal heirs of Siri Ram Suri in equal share. It is claimed that the petitioner, his mother, respondent No.2 and daughters of Siri Ram Suri, namely, respondent Nos.3, 4 and 5 relinquished their respective shares in the property bearing municipal No.WZ-177, G-Block, Hari Nagar, Jail Road, New Delhi in favor of Smt.Kaushalya Devi. Based on such relinquishment, the Municipal Corporation, it is stated, mutated the property in favor of Smt.Kaushalya Devi.

4.Petitioner seeks probate/Letters of Administration in respect of Will dated 6.7.1993, by which the deceased Smt.Kaushalya Devi bequeathed the immovable property, namely, WZ-177, G-Block, Hari Nagar, Jail Road, New Delhi in favor of her grand son, petitioner, together with land and super structure thereon. The Will had been duly registered as document No.29535 in book B Volume 1996 at pages 170-177 on 6.7.1993 in the office of the Sub-registrar, New Delhi. Notice to the aforesaid near relations, namely, Smt.Asha Suri, Smt.Kiran Sabharwal, Smt.Manisha Chaudhary, Smt.Ritu Chhatwal, respondent Nos.2,3,4 and 5 respectively, were duly issued. Citation was also published in 'The Hindu' in the Coimbatureand 'Statesman', New Delhi. Notices were duly issued to the Chief Revenue Controlling Authority. Respondents were duly served.

5.Written statement and objections were filed by the above respondent Nos.2 to 4. It was claimed that the Will was forged and fabricated one. It was also claimed that no relinquishment had been executed on 23.8.1989 by the respondents and petitioner in favor of Smt.Kaushalya Devi and she could not have executed the Will for the entire property. She could have bequeathed only her share. It was alleged that the petitioner had played a fraud.

6.As noted earlier, issues were framed and the case had been listed for evidence of the petitioner. It is at this stage that the parties had moved IA.No.7688/2003 under Order XXIII Rule 3 CPC on 23.7.2003 for recording of the compromise and passing a preliminary decree and allowing the probate petition. The said application was accompanied by the affidavits of the parties and a Memorandum of Understanding. During the course of hearing, it was made clear to the parties that a petition for grant of probate/Letters of Administration would not be granted on the basis of a compromise application. As of necessity, due execution of the Will has to be proved. Petitioner and the respondents, thereforee, did not press the said application and the case was fixed for recording of evidence of the parties.

7.The Statement of Smt.Asha Suri, Smt.Kiran Sabharwal, Smt.Manisha Chaudhary and Smt.Ritu Chhatwal, respondent Nos.2 to 5 respectively, were recorded on oath on 28.7.2003. Each one of them withdrew their objections filed to the grant of probate in respect of Will dated 6.7.1993. These near relations stated that they were withdrawing the objections and making the statement of their free will and accord.

8.Petitioner examined Sh.Prem Kumar Bhatia, attesting witness to the Will, who deposed that he knew the deceased as he was living in the same locality. He stated that the Will had been executed in his presence by the deceased as well as in the presence of Sh.Mandeep Singh Kapoor, advocate, the second attesting witness and they had signed in presence of each other. Sh.Prem Kumar Bhatia identified the signatures on the Will at points A-1 and A-2 and his own signatures at point C-1 and C-2 and of Sh.Mandeep Singh at points B-1 and B-2. The second witness was also examined, who similarly proved the Will executed Ex.P1/1 and deposed that he had signed the Will as an attesting witness in the presence of the deceased and Sh.Pradeep Kumar Bhatia. He identified the signatures of the testator, Sh.Prem Kumar Bhatia and his own on the Will and also stated that they had appeared before the Sub-Registrar. Petitioner also examined himself affirming institution of the petition. The death certificate in original PW-3 was also filed on record by the petitioner and he prayed for grant of Letters of Administration. Petitioner had also moved IA.No.8285/2003 under Order VI, Rule 17 CPC, by which he sought to have the typographical error in the petition, mentioning the date of the Will as 10.10.1976 instead of 6.7.1993 to be corrected. It was stated that there was no Will dated 10.10.1976 propounded by any of the parties. The original Will was duly proved. The amendment application was allowed on 13.8.2003.

9.From the foregoing narration, it would be seen that the petitioner has duly proved the Will dated 6.7.1993, of the deceased late Smt.Kaushalya Devi, by producing the attesting witnesses.The near relations have also given no-objections and their statements have been recorded on oath. In view of the statements of the attesting witnesses and that of the petitioner and no objection by the near relations and L.Rs. of the deceased, Will dated 6.7.1993, Ex.P1/1 is held to be proved. Petitioner had filed the valuation report, assessing the value at Rs.10,06,800/-. The Chief Revenue Controlling Authority has filed its report bearing No.499/SDM/RS/98 dated 7.10.1999, assessing the valuation of the estate at Rs.10,55,000/-. Petitioner has no-objection to the acceptance of the said valuation, as fixed by the Chief Revenue Controlling Authority.

10. A perusal of the Will Ex.P.1/1 shows that the deceased did not appoint any executor of the Will. In the absence of an executor, appointed by the testator under the Will, petitioner is not entitled to the grant of a probate. Reference is invited to Section 222 of the Indian Succession Act.

'222. Probate only to appointed executor

i)Probate shall be granted only to executor appointed by the Will.

ii)The appointment may be expressed or by necessary implication.'

By virtue of Section 232 read with Section 276 of the Indian Succession Act, petitioner is held to be entitled to the grant of Letters of Administration with a copy of the Will annexed Ex.P.1/1 upon payment of the requisite court fee, as per the valuation.

11.An interesting question has arisen at this stage, as to whether the petitioner is required to execute an administration bond or not. In this context, it may be noticed that initially learned counsel for the petitioner had sought to urge that since the petitioner was the sole beneficiary under the Will and was being left to deal with the property as an owner impliedly he was to act as an executor also. In other words, this was an appointment of an executor by implication. Learned counsel, however, after some arguments, did not press the same since no arguable case for considering the appointment of executor by implication could be made out.

12.The requirement for the execution of an administration bond is as under:-

Section 291 : '(1) Every person to whom any grant of letters of administration, other than a grant under section 241, is committed, shall give a bond to the District Judge with one or more surety or sureties, engaging for the due collection, getting in, and administering the estate of the deceased, which bond shall be in such form as the Judge may, by general or special order, direct.

(2)When the deceased was Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person-

(a) the exception made by sub-section (1) in respect of a grant under section 241 shall not operate;

(b) the District Judge may demand a like bond from any person to whom probate is granted.

13.Barring the exception being provided for an eventuality for the grant of Letters of Administration to an attorney of absent executor, Section 291, as noted above, mandates furnishing of a bond to the District Judge in every case of issuance of Letters of Administration. Learned counsel for the petitioner-Mr.Ashwani Matta, argued that the requirement of execution of a bond should not operate in the case of a sole beneficiary under the Will to whom the Letters of Administration are granted. Probate is not being granted only on account of bar under Section 222 of the Act. Had the petitioner been named as an executor or it was a case of appointment of an executor by implication, then petitioner would have been entitled to probate without the requirement of issuance of Letters of Administration.

14. Let us examine the nature of Testamentary and Intestate jurisdiction as also the object of Section 291 of the Act to enable appreciation of the plea that the requirement of furnishing an administration bond under Section 291 should not apply in the case of a legal heir and a sole beneficiary under the Will.

15. The object of Testamentary and Intestate jurisdiction is to enable Courts to accord legitimacy and authenticity by giving its seal of approval to succession of estates. The judgment given in the exercise of Testamentary and Intestate succession is a conclusive determination, which is binding 'in rem'. The Testamentary and Intestate jurisdiction is available without discrimination and to the same extent to either modes of succession that is, whether by testament or by the law of succession. The statutory provisions and rules framed are with a view to aid the Courts. More particularly as the deceased is no longer available for clarification or Explanationn. These provisions are merely an aid to succession extended upon being invoked. The Courts while exercising Testamentary and Intestate jurisdiction are to act in consonance with the ultimate objective of succession. The statutory provisions and the rules are to be interpreted in a manner which would give effect to and further the intention of the deceased rather than to act in a manner which would have a converse effect on what was contemplated by the deceased. It is in this background that we have to consider the requirement of furnishing an administration bond by a sole beneficiary under the Will. The Legislature when enacting Section 291 in the Act would have had no reason to believe that in ordinary circumstances, the deceased while making his or her last testament would fail to make a provision for the implementation of the testament through an executor. It is only in cases of Intestate succession that a greater degree of care is called for when an administrator is to be appointed with sureties and securities taken for the due administration of the estate. The Indian Succession Act, 1925, that is the Act, was enacted in an era quite different from the modern times. Access to Courts at different places was significantly more difficult than today. It was for this reason that sufficient safeguards were provided in cases of Intestate succession and where Administrator of the estate was being appointed to safeguard the interest of all the heirs and others having an interest in the estate.

16. Section 291 of the Act, requires furnishing of an administration bond. The object of an administration bond is to secure due and proper administration of the estate of the deceased in which the executors and administrators have to discharge multifarious duties in respect of the estate. The administrator is to pay full expenses, duties, legacy, retain the residue of the estate, recover the due to the estate. Once the residue has been determined, the executor or administrator are to pay the residuary legacy in case there is a kin. The administrators or the executors are required to maintain true account and complete inventory of assets of the deceased and to administer the estate of the deceased and to file true and complete account of the administrator.

17.It may be noted that w.e.f. 1st January, 1972 the U.K. Legislature by enacting Section 8 of the Administration of Estates Act, 1971 has also done away with the requirement of furnishing the bonds, a requirement that existed under : (a) Colonial Probate Act, 1892, or (b) Supreme Court of Judicature (Consolidation) Act, 1925.

18. Let us examine the legal position, as it emerges in India on the aspect of furnishing of administration bond in cases of grant of probate and Letters of Administration with a copy of the Will annexed. Following judicial pronouncements may be noted:-

19. In Subhash Chopra & Another Vs.State reported at : 39(1989)DLT297 a Single Judge of this Court granted probate in respect of the Will. Petitioners were directed to file the requisite accounts and administer the estate. The Court held that since the deceased was a hindu and probate was granted to natural heirs, the furnishing of administration bond was exempted. It was held that Section 291 of the Act does not apply for grant of probate of a Will where Letters of Administration is not required. Again in Sambhu P. Jaisinghani Vs.Kanayalal P.Jaisinghani & Ors reported at : 60(1995)DLT1 a Single Judge of this Court held that petitioner is entitled to claim and get probate in respect of the Will executed by his mother on 1.9.1960. As per the Will, the deceased mother had bequeathed the property to her natural heirs. It was held that it was not necessary to odderthe petitioners to furnish the administration bond, relying on Subhash Chopra & another Vs.State (Supra). It would be seen from the foregoing two judgments that where probate was sought and the bequest was in favor of the natural heirs, the petitioners were exempted from furnishing administration bonds. However, there is another decision titled Dalip Bhatia Vs . State & Ors reported at : 99(2002)DLT581 by which the learned Single Judge in a petition filed under Section 276 of the Act, had granted Letters of Administration with a Will annexed, subject to payment of requisite court fee and completion of formalities. Petitioner sought exemption from requirement of an administration bond on the plea that the petitioner was not only the executor but also the beneficiary and legal heir of the deceased, as such the petitioner was not to do any act in compliance and direction under the Will. The learned Single Judge found that petitioner had not been appointed as an Executor under the Will. The Court held that being a beneficiary under the Will or a legal heir of the testator was not enough to dispense with the surety bond. The learned Single Judge distinguished the cases of Subhash Chopra & another Vs.State (Supra) and Sambhu P.jaisinghani and Kanayalal P.Jaisinghani & Ors (Supra), holding that the said cases were those relating to probate, where an executor is appointed and not those relating to issuance of a Letters of Administration with Will annexed. The Court held that Section 291 of the Act was explicit. In particular the words 'every person to whom any grant of Letters of Administration issued shall give a bond' were significant. The application was dismissed, holding that the plea of dispensing with the Administration/Surety bond was misconceived in the case of grant of Letters of Administration with a copy of Will annexed.

20. With respect, before the Single Judge in Dalip Bhatia Vs.State and Ors (supra), the pleas regarding the necessity and validity of the requirement of furnishing administration bonds by a sole beneficiary and legal heir under the Will and the object and intent of Section 291 of the Act were neither raised nor examined in its entirety. Based on Section 291 of the Act, the request for exemption from furnishing administration bond was rejected.

21. The crux of the matter arising for consideration is whether a sole beneficiary under a Will, which has been duly proved, should be required to execute an administration bond for the administration of an estate, which is bequeathed to him and to which there are no other claimants. It is only on account of statutory bar under Section 222 of the Act, the said sole beneficiary and natural heir not being an executor, is not being granted the probate. It is not in dispute that had he been appointed the executor, there would have been no requirement or insistence on furnishing a surety or administration bond.

22. It would be seen that none of the duties of the Administrator as noticed in the preceding para-16 are required to be performed by a person, who is the sole beneficiary under the Will. It appears to me that the requirement of furnishing of administration bond or surety bond for administration of an estate belonging to oneself is wholly redundant and could not have been intended to be covered by the statutory provision, namely, Section 291 of the Act.

23. On a question of proper interpretation of Section 291 of the Act, reference is invited to the following paras from Halsbury's Laws of England:-

Paragraph 898 at page 551 of Volume 44 : 'The construction of ancient statutes may be elucidated by what in the language of the Courts is called contemporanea expositio, that is, by saying how they were understood at the time when they were passed.'

Paragraph 860 at page 524 of Volume 44 : 'Where the main object and intention of a statute are clear, it should not be reduced to a nullity by a literal following of language, which may be due to want of skill or knowledge on the part of a draftsman, unless such language is intractable.'

24. Following are the well recognised principles of interpretation:-

Statutes must be so construed as to make them operative. If it is possible, the words of a statute must be construed so as to give them a sensible meaning. A statute must, if possible, be construed in the sense which makes it operative and does not defeat the manifest intentions of the legislature and nothing short of impossibility so to construe it should allow a court to declare a statute unworkable.

If the Court is to avoid a statutory result that flouts common sense and justice, it must do so not by disregarding the statute or overriding it, but by interpreting it in accordance with the judicially presumed parliamentary concern for common sense and justice. But the possibility of injustice which leads the Court to adopt a particular construction must be a real one.

25. There are instances, where the entitlement though fully covered under the statute has been denied on ground of public policy. In R Vs National Insurance Commissioner, ex parte Connor' reportedin (1981) 1 All ER 770 was a case under the Social Security Act, 1975. A widow though entitled to the insurance as per condition of the statute for grant of social security was denied the allowance on public policy as she had created a status of widowhood by killing her husband. This is a case, where on ground of public policy the applicant fulfillingthe entitlement under the statute was denied relief on grounds of public policy.

26. Reference at this stage may also be made to the Maxwell on interpretation of statutes with regard to the 'golden rule'. The learned author noticed as under:

'The So called 'golden rule' is really a modification of the literal rule'.

27. It was stated in this way by Parke B:

'It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further'.

28. Considering the nature of the Testamentary and Intestate succession, the object and purpose sought to be achieved by Section 291 and thus applying the aforesaid principles of interpretation of statutes, it would be seen that Section 291 of the Act is not intended to cover within its ambit the cases of a sole beneficiary and legal heir under a Will being required to furnish administration/surety bond. One cannot administer the estate or his own estate against himself, for which he be required to give an indemnity or administration bond. Besides, none of the purposes and objectives of Section 291 of the Act are covered or fulfilledby the execution of an administration/surety bond by the sole inheritor or beneficiary under the Will duly proved. Such an exercise would be an exercise in futility. In the instant case if the petitioner's grand son was to mismanage or maladminister, he would be doing so only against his own and personal interests. A right that clearly vests in him by virtue of the bequest. Hence insistence of furnishing the administration bond in the present case would not only be meaningless and without any purpose, but inconsistent with succession. Section 291 in the light of the foregoing principles of interpretation, as noticed, has to be interpreted so as not being applicable to a case of a sole beneficiary and legal heir, under a duly proved Will insofar as requirement of furnishing an administration bond is concerned.

29. In the light of the foregoing discussion, petitioner is exempted from furnishing of an administration bond. Although the conclusion and result is different from Dalip Bhatia Vs.State & Ors.(Supra). I do not deem it necessary to make a reference to a larger Bench, since these aspects were neither raised nor pleaded before the learned Single Judge in Dalip Bhatia Vs.State & Ors.(Supra) and he did not have the occasion to consider the same.

30. Petition stands allowed in the above terms.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //