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Kanta Malhotra v/s State & Others

    Test.Cas. No. 28 of 1995

    Decided On, 20 July 2018

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE YOGESH KHANNA

    For the Petitioner: Richa Kapoor, Advocate. For the Respondents: None.



Judgment Text

1. The petitioner is the mother of deceased, the deceased being born from the wedlock of the petitioner with Shri Om Prakash Malhotra. The deceased died intestate in suspicious circumstances on the intervening night of 19-20th December 1994 at South Delhi Guest House, New Delhi from where he was taken and got admitted in a hospital by respondent No.2.

2. The deceased had a fixed place of abode at A-111, Defence Colony, New Delhi and was survived by Shri Om Prakash Malhotra-his father; Smt.Kanta Malhotra-his mother; and Smt.Neena Anand-his sister. The wife of the deceased had pre-deceased him and he had n

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o children. The petitioner being the mother is the only legal heir under Section 8 of the Hindu Succession Act.

3. The petitioner got notice from the High Court of Allahabad and came to know the respondent No.2 has set up a Will of deceased in her favour and respondent no.3 is an executor of such alleged Will dated 27.07.1994 and that respondent no.3 had applied for the probate of the said Will, registered as Test. Case No.7/1995.

4. The petitioner denied the execution, validity of Will dated 27.07.1994 and deceased even had no property at Allahabad and his fixed place of abode was also at Delhi. It is pertinent to say after the postmortem of the deceased a case for murder was registered against Smt.Shalini Chopra, Mr.M.S.Chopra, Mr.Vikram Chopra and Mr.Nikhil Chopra. Various suits were filed interse the parties and the petitioner also applied for the letter of succession in her favour qua the moveable estate of the deceased.

5. On 16.07.1999, this case was adjourned sine die to see the outcome of the Probate Case No.34/1995 and Probate Case No.13/1996.

6. On 03.12.2015 the Probate Case No.34/1995 was disposed of as withdrawn and whereas the Probate Case No.13/1996 filed by the respondent No.2 was dismissed vide order dated 11.09.2009, though an appeal thereof is pending before the Division Bench, but there is no stay till date.

7. The respondents stopped appearing in this petition ever since 20.12.2016. The respondent No.2 was proceeded ex parte vide order dated 05.02.2018 and following two issues were framed:-

1) Whether the petitioner is entitled to letter of administration regarding the estate of late Sh.Praveen Malhotra? OPP

2) Relief.

The petitioner was directed to file the evidence by way of affidavit.

8. The petitioner has examined herself in Court as PW1 and tendered her affidavit Ex.PW1/A and relied upon documents as Ex.PW1/A viz., certified copy of death certificate of the deceased; copies of the passports of the deceased, Mr.Om Prakash Malhotra and petitioner herself as Mark A, Mark B and Mark C respectively; and as Ex.PW1/B she proved the death certificate of her husband. The petitioner being the legal heir under Section 8 of the Succession Act had filed this petition for grant of letter of administration. She deposed Ms.Neena Anand @ Reet Anand – sister of the deceased has no objection for grant of letter of administration in favour of the petitioner. The petitioner further deposed that though the respondent No.2 created a Will dated 27.07.1994 and filed the Test. Case No.13/1996, but it was dismissed vide order dated 11.09.2009 wherein the Court raised serious doubt about the genuineness of the Will dated 27.07.1994 and give as many as 16 suspicious circumstances creating such doubt in its order dated 11.09.2009. The certified copy of such judgment is Ex.PW1/C. The appeal being FAO (OS) No.30/2010 was filed against the judgment but no stay is granted till date. The Test Case No.10/2010 was for grant of succession certificate under Section 372 of the Indian Succession Act in respect of the debts and securities of the deceased, titled as Kanta Malhotra vs State and Other. On 09.07.2010 the succession certificate in respect of the debt and securities of the deceased was granted in favour of the petitioner herein and order is Ex.PW1/E.

9. The respondent No.3 also filed a revocation petition against the grant of succession certificate, but it was also dismissed vide order dated 10.06.2016, the copy of which is Ex.PW1/F; which order has not been challenged till date. The Probate Case No.34/1995 preferred by Shri Subhash Chander Vij – brother of the petitioner was also disposed of as withdrawn vide order dated 17.07.2000 – the copy of the said order is Ex.PW1/G. Thus it is alleged there is no impediment for grant of letter of administration in respect of the properties of the deceased in favour of the petitioner.

10. PW2 Ms.Reet Anand is the sister of the deceased and she has given no objection for grant of letter of administration in favour of the petitioner. Her affidavit/no objection is Ex.PW2/1.

11. In the circumstances, where the petitioner is the class I heir of deceased and where there is no challenge to her testimony; the respondents being ex parte; as also where her own daughter Ms.Reet Anand had given no objection for the grant of letter of administration in favour of the petitioner and also considering the Will dated 27.07.1995 allegedly propounded by the respondent was declared invalid vide the judgment dated 11.09.2009 and there being no stay against the said judgment and also the petitioner having obtained succession certificate qua movable properties of the deceased vide order dated 09.07.2010 Ex.PW1/E, there exist no impediment in grant of the letter of administration in her favour, as sought in respect of the properties of deceased as mentioned in schedule A.

12. In view of above, the issue No.1 is decided in favour of the petitioner and against the respondents.

13. Consequently, the grant of letter of administration of estate of deceased per Annexure-A, is granted in favour of the petitioner.

14. Registry to issue the letter of administration, subject to valuation to be obtained by this Court from the SDM and/or other agencies, if necessary and on paying the requisite stamp duty etc and also upon their furnishing administration bond and a surety bond.

15. In view of above, the petition stands disposed of. No order as to cost.
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