IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
F.A.O. No. 779 of 1983
Date of Decision : November 26, 2008
Jaswant Ram and another
.....Appellants
Versus
Tek Chand
.....Respondent
CORAM : HON'BLE MR JUSTICE T.P.S. MANN
Present : Mr. J.L. Malhotra, Advocate
for the appellants.
None for the respondent.
T.P.S. MANN, J.
Application preferred by the appellants under Section 263 of
the Indian Succession Act (hereinafter referred to as the ‘the Act’), with a
prayer for the annulment and revocation of grant of letters of
administration allowed to the respondent regarding the property of Bhola
Ram was dismissed by learned District Judge, Karnal vide order dated
September 02, 1983, which has now been challenged by them by filing the
present appeal under Section 299 of the Act.
The case relates to the estate of Bhola Ram son of Tula Ram,
who died on 17.4.1967 at Panipat. While filing a petition for grant of
probate under Section 276 of the Act, Tek Chand-respondent claimed that
before his death, Bhola Ram executed a Will on 17.3.1967 bequeathing
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his property to him. Vide order dated 17.10.1977, the learned District
Judge, Karnal held that the respondent could not apply for probate but
could be granted letters of administration. Accordingly, the respondent
filed a petition for the grant of letters of administration, which was
accepted by the learned District Judge, Karnal on 15.4.1980. This led to
filing of the application under Section 263 of the Act by the appellants for
annulment and revocation of the said letters, inter alia, on the following
grounds :-
“(i) that the letters of administration was obtained
by mis-statement and deliberate concealment
of relevant facts, in as much as Bhola Ram
had died leaving behind Smt. Kishni Bai, his
widow;
(ii) that Bhola Ram had filed a suit against
Jaswant Ram, petitioner No. 1 in the court of
Sub Judge Ist Class, for the recovery of
certain amount;
(iii) that after his death Smt. Kishni Bai, widow
of Bhola Ram, applied for being impleaded
as legal representative of the deceased.
(iv) that in those proceedings Tek Chand had also
claimed to be the legal representative of
Bhola Ram deceased but a compromise was
arrived at in those proceedings;
(v) that Smt. Kishni Bai, before her death, had
executed Will dated 14.8.1968, thereby
bequeathing all the property inherited by her
from Bhola Ram in favour of the present
applicant;
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(vi) that Tek Chand got his application for the
grant of succession certificate in respect of
the estate of Bhola Ram deceased pending in
the court of Senior Sub Judge, Karnal,
dismissed in default on 29.8.1972, as that
petition was contested by the present
petitioners on the basis of the Will made by
Smt. Kishni Bai in their favour.
(vii) that Tek Chand had played fraud on the
petitioners as well as the court and obtained
the letters of administration by fraudulent
and illegal means; and
(viii) that Bhola Ram did not execute any Will and
that the Will put up by Tek Chand was
forged, fabricated and a made up document.”
The respondent opposed the application by taking preliminary
objections that the application as framed did not lie; the appellants had
chosen a wrong forum; the appellants had no locus standi to file the
application; the matter for grant of probate and letters of administration had
continued for about four years and the appellants knew fully well about the
same but never raised any objection; that for three years the respondent
fought the case with the Estate Duty Department and the appellants had full
knowledge of the same. It was also pleaded by the respondent that Bhola
Ram in his Will, executed in his favour, had declared that he was a
bachelor and had neither a wife nor child. The respondent denied that any
compromise was arrived at with the appellants or Kishni Bai. In fact, Smt.
Kishni Bai was an impostor. The Will said to have been executed by Smt.
Kishni Bai in favour of the appellants was also denied. While filing the
F.A.O. No. 779 of 1983 -4-
written statement, the respondent also deposited the original letters of
administration.
On the basis of the pleadings of the parties, five issues were
initially framed. Later on, an application was filed by the respondent under
Section 151 C.P.C. that if the letters of administration was revoked, the
case reverted to the stage of original application and, therefore, the parties
could lead evidence in support of their contentions. The said application
was disposed of by the learned lower Court on 6.1.1983 with the
observation that the evidence led by the parties was relevant only to decide
as to whether the letters of administration earlier granted to the respondent
was to be annulled by revocation. An application under Order XLI Rule 27
C.P.C. was then filed on behalf of the appellants on the basis of which
additional issue No.4-A allowed to be framed. Finally on 10.6.1983, the
issues were re-cast. Those issues read as under :-
1. Was Smt. Kishni Bai the lawfully wedded
wife of Bhola Ram ?
2. Did she inherit his estate as full owner ?
3. Did she execute any valid will in favour of
Jhangi Ram and Jaswant Rai as alleged ?
4. Whether Bhola Ram executed a valid Will
in favour of Tek Chand as alleged ?
5. Relief.
It may not be out of place to mention here that before the issues
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were re-cast, the appellant had already examined OW1 Som Parkash, Deed
Writer of Will, Ex. O.1 dated 14.8.1968, OW2 Tej Bhan, Purohit, OW3
Chattar Singh, Clerk, Food and Supplies Department, Panipat, OW4 Uttam
Chand, an attesting witness of Will, OW5 Jhangi Ram, one of the
appellants and OW6 Ved Parkash, Stenographer, who proved statements
Ex.O.6 of Ram Gopal and Ex. O.7 of Kishni Bai. In reply, the respondent
examined himself as RW1, Teja Singh as RW2, Kakian Wali as RW3,
Devi Dass as RW4 and Ram Narain as RW5. In view of the joint statement
made by learned counsel for the parties at the bar, evidence already
recorded was to be read on the issues as re-cast.
After going through the pleadings and the evidence led by the
parties, learned trial Court held that the appellants themselves failed to
establish that Smt. Kishni Bai was the legally wedded wife of Bhola Ram
and, therefore, she did not inherit his estate. Even the Will Ex. O.1 said to
have been executed on 14.8.1968 by her in favour of the appellants was
found to be riddled with suspicious circumstances. On the other hand, it
was held that Bhola Ram executed Will in favour of the respondent and,
accordingly, it was directed that the letters of administration already
granted to him be delivered back to him. Resultantly, the application filed
by the appellants under Section 263 of the Act was dismissed with no order
as to costs.
I have heard learned counsel for the appellants, as no one has
appeared on behalf of the respondent and with his able assistance perused
the impugned order and the evidence available on the file.
F.A.O. No. 779 of 1983 -6-
The dispute in the appeal mainly centres around two issues,
first one being the relationship of Smt. Kishni Bai as the wife of Bhola
Ram while the other about Bhola Ram executing a valid Will in favour of
Tek Chand. If the first issue is found to be correct, then in that situation it
is required to be found out as to whether Smt. Kishni Bai inherited the
estate of Bhola Ram as a full owner and whether she executed a Will in
favour of Jhangi Ram and Jaswant Rai.
The objectors have relied upon the testimony of Tej Bhan
OW2. According to him, Chadarandaz was performed by him between
Kishni Bai and Bhola Ram in the year 1943-44. However, in his cross-
examination Tej Bhan stated that there were no formal rites performed on
the occasion. Though four or five persons were present but he could not
name them. Jhangi Ram OW5 did not mention about the marriage between
Kishani Bai and Bhola Ram as Chandarandaz but referred to the same as
Karewa. When cross-examined, he stated that neither he nor any of his
brothers was present at that time. Uttam Chand OW4 was another witness
examined by the objectors so as to show that Kishni Bai was the legally
wedded wife of Bhola Ram. However, in his testimony he stated that the
Karewa of Kishni Bai did not take place in his presence. Apart from the
aforementioned witnesses, the objectors relied upon two Ration Cards Exs.
O.3 and O.4, but none of them was properly proved. Chattar Singh OW3
could not say as to whether Ration Card Ex.O.3 had been issued by the
Food and Supplies Department, Muzaffargarh and Ex. O.4 by the Food and
Supplies Department, Panipat. Similarly, Post Card Ex. O.5 would not
establish relationship of Kishni Bai with Bhola Ram, as Tek Chand, who
F.A.O. No. 779 of 1983 -7-
was said to have written and sent the same, had claimed that he was an
illiterate person. Entry Ex. O.9 did not indicate the identity of Bhola Ram
and also of Kishni Bai and, therefore, was no conclusive proof of the
relationship between them as that of husband and wife. Under these
circumstances, it is held that the objectors failed to establish that Kishni
Bai was the lawfully wedded wife of Bhola Ram. Resultantly, she was not
competent to inherit the estate of Bhola Ram.
In Para 24 of the impugned judgment, learned District Judge,
Karnal has detailed the various circumstances which show that the Will
Ex. O.1 said to have been executed by Kishini Bai in favour of Jhangi Ram
and Jaswant Rai was shrouded by suspicious circumstances. On the other
hand, it has been found, for reasons mentioned in para 25 of the impugned
judgment, that Bhola Ram executed Will Ex. R3 which had been scribed by
Ram Narain RW5 and witnessed by Devi Dass RW4. At the time of
execution of the Will, Bhola Ram was in a sound disposing mind. The
testimonies of Ram Narain RW5 and Devi Dass RW4 were found to be
corroborated by that of Tek Chand RW1. Mere fact that Ex. R3 was only a
photocopy of the Will was no ground to hold that no such Will had been
executed for the reason that the original Will was initially produced by Tek
Chand in the Court but was lost and on l4.1.1982 said Tek Chand filed an
application for permission to lead secondary evidence, which was allowed
on 9.2.1982. It is also a fact that Tek Chand had initially filed an
application for obtaining a probate of the Will which was not allowed for
the reason that only letters of administration could be granted. While those
proceedings were pending, publication was effected but no one came
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forward to challenge the Will dated 17.3.1967. Therefore, on the basis of
the evidence it stands proved that Will had been executed by Bhola Ram in
favour of Tek Chand and he was entitled to the grant of letters of
administration.
For the foregoing reasons, there is no merit in the appeal,
which is, accordingly, dismissed. No costs.
( T.P.S. MANN )
November 26, 2008 JUDGE
satish
Whether to be referred to the Reporters : YES / NO