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Delhi District Court Smt. Hamida Begum vs State on 9 April, 2015 Author: Sh. Manish Yaduvanshil Hamida Begum v State & Ors.
IN THE COURT OF SHRI MANISH YADUVANSHI ADDITIONAL DISTRICT JUDGE −06: CENTRAL : DELHI. PC
Smt. Hamida Begum, W/o Sh Mohd. Saleem, R/o 1697, Rodgran, Lal Kuan, Delhi−110006. ......
Versus
- State N.C.T of Delhi.
- Mohd. Ahmed, S/o Late Mohd. Hasan, R/o 1672, Gali Shaban, Rodgran, Lal Kuan, Delhi−110006.
- Mohd. Yahya, S/o Late Mohd. Hasan, R/o H.No. B−5, Building No. 1500−B, Gali Kotana, Suiwalan, Delhi−110006.
- Mohd. Saleem, S/o Late Mohd. Hasan, R/o 1697, Rodgran, Lal Kuan, Delhi−110006.
- Samar Begum, D/o Late Mohd. Hasan, R/o H.No. 130, Masjid Tehwar Khan,
Result: Petition allowed. Hamida Begum v State & Ors.
Naya Bans, Delhi−110006.
- Qaiser Bharti, S/o Late Mohd. Hasan, R/o 1446−47−48, Masjid Sayyad Rafai, Chitli Qabar, Delhi−110006.
- Mohd. Sabreen
- Mohd. Iqbal
- Mohd. Khalid
- Mohd. Sajid
- Mohd. Nadeem
- Mohd. Rizwan
- Mohd. Haroon
All Sons of Late Mohd. Rafiq Qureshi, R/o H.No. 494, Hassan Manzil, Mattia Mahal, Mama Masjid, Delhi−110006. ......Respondents
Unique case I.D No.
: 02401C
Date of Institution : 09.01.2009. Date of Reserving Judgment : 01.04.2015. Date of Judgment : 09.04.2015.
Result: Petition allowed. Hamida Begum v State & Ors.
PETITION UNDED SECTION 276 OF INDIAN SUCCESSION ACT FOR GRANT OF PROBATE
JUDGMENT
- The petitioner above named has filed the petition under Section 276 of Indian Succession Act 1925 (herein after called as 'the Act') for grant of probate in respect of the properties bequeathed to her by virtue of a Will of her late mother in law Smt. Fatima Khatoon which is dated 25.11.1978 and duly registered with the Sub Registrar I, Delhi on 31.1.1979. As many as seven properties are described in Annexure P 2 which is Schedule annexed to the Will ExPW1/1. The petition is only in respect of the property described at serial no. 5 of the Schedule which is 1/3rd out of 25% of the share belonging to Smt. Fatima Khatoon, the deceased testatrix in property no. 494, Hassan Manzil, Matia Mahal, Jama Masjid, Delhi. Some of the properties are situated beyond the jurisdiction of this Court while others are situated within its jurisdiction having been made the subject matter of the present petition. It was informed that evidence has been lead only with respect to the Delhi properties. To settle the controversy regarding the aspect of jurisdiction, Hamida Begum v State & Ors. PC 03/ the petitioner's counsel also gave a statement dated 1.4.2014 to the aforesaid effect. Thus, essentially
deceased grand mother. The parties to the suit are following Sunni section of Muslim Law and in this context, Chapter VI of Section 53 of Mulla's Principles of Mahomedan Law, 19th Edition is relied upon. So far as the aspect that the executor has not filed the petition for probate is concerned, it is submitted that the petition has been filed by the beneficiary due to refusal of executor namely Sh Mohd. Saleem who has been therefore, arrayed as one of the respondents. In respect thereto, the petitioner relies on judgment in Raj Rani Bhasin v State 158 (2009) Delhi Law Times 713. It is thus submitted that Section 222 of the Act does not come in her way. It is denied that the deceased Hamida Begum v State & Ors. PC 03/09 testatrix has disposed off all her properties during her life time as alleged. They have further relied on the principles of Islamic Shariat Law of Inheritance. It is submitted that on the death of the deceased testatrix any of her LR who claim through any pre deceased LR of deceased testatrix shall be excluded from her estate so far as Mohd Shafiq, the other son of the testatrix is concerned, it is stated in the rejoinder that even he died on 1.7.1980 i.e prior to the death of deceased testatrix.
- On completion of pleadings, following issues were settled on 05.11.2009 viz;
- Whether present petition is liable to be dismissed for want of verification by an attesting witness? OPR.
- Whether petitioner is entitled for probate/letter of administration in respect of Will in question? OPP.
- Whether present petition is bad on the ground of preliminary objections taken by the respondents?
- Relief.
- In evidence, the petitioner examined PW 1 Mohd. Naeem, who is son of late Mohd. Yamin. The said late Mohd. Yamin is said to be one of the attesting witness to the Will. PW 1 stated on oath that his father died on 14.4.1994. The said date is prior to filing of the petition in hand. He identified the signature of his father on Will ExPW1/1 at point X. He was duly cross examined.
Hamida Begum v State & Ors. PC 03/09 5.1. The propounder of the Will i.e the petitioner herein as PW 2 filed her affidavit ExPW2/A. She produced the death certificate of her mother in law/testatrix which is ExPW2/1 and the pedigree table Annexure P1. The details of the properties left by the deceased is Annexure P2. This witness was also duly cross examined. 5.2. In order to have the registration of the Will proved, PW 3 Sh Satyapal, Record Attendant, Department of Delhi Archives produced the record pertaining to the registration of the Will ExPW1/1. According to the said witness, the record contains only one sheet and no annexures were filed with it. The witness was cross examined. 5.3. The petitioner also examined one Mohd Akram, son of Mohd. Saleem as PW 4. Mohd. Saleem is said to be the second attesting witness to the Will. According to him, his father had died 7−8 years prior to the date of his examination in the Court which is 19.5.2011. This petition was filed on 12.1.2009 and thus it can be said that Mohd. Saleem had died prior to the filing of the petition keeping in mind the further fact that he was not cross examined on the aspect of death of
his father. He identified his father's signature at point Y on the aforesaid Will.
5.4. One Sh Sanjay Saxena, Book Binder from the office of Delhi Archives was examined as PW 5 who was summoned to prove the certified copy of the Sale Deed dated 12.10.1964 registered on Hamida Begum v State & Ors. PC 03/09 24.10.1964 which is ExPW5/1 and in respect of a built up house no. 1203/1714, Gali Naginawali, Mohalla Rodgaran, Lal Kuan, Delhi. Chief examination of this witness was deferred for want of complete documents and on the next date of hearing, another witness Sh Shivajit Yadav from the office of Delhi Archives was examined as RW5A. However, his chief examination was required to be deferred as he had not brought the complete record of property in question. Thus, on 10.7.2014, said Sh Shivajit Yadav produced the record pertaining to the Sale Deed of the property in question i.e registered on 10.12.1964 of which the certified copy is ExPW5A/1. Its translated copy is also available on record. No further evidence was lead by the petitioner.
- Respondents no. 7 to 13 examined only one witness namely Mohd.
Sajid who is respondent no. 10 on their behalf. His affidavit in evidence is ExRW1/A. The witness was duly cross examined by the petitioner's counsel.
- This Court has heard Sh A.R Siddiqui, ld. Counsel for the petitioner and Sh Bakshi Siri Rang Singh, ld. Counsel on behalf of respondents. My issue wise findings are as under;
Issue no. 1. Whether present petition is liable to be dismissed for want of verification by an attesting witness? OPR.
- The onus of proving this issue was on the respondents. They have Hamida Begum v State & Ors. PC 03/09 raised pleadings in this respect in their written objections. However, the affidavit of RW 1 is absolutely silent in this respect. Otherwise also, the same is a legal issue. The petitioner does not provide in the petition that both the attesting witnesses to the Will ExPW1/1 had died at the time of filing of the petition. Infact, this fact is not even found from rejoinder filed by the petitioner on record. However, list of witnesses filed by the petitioner reveal that they never made the attesting witness as witness to prove the execution and registration of the Will. They however, named PW 1 and PW 4 who were permitted to be summoned. Interestingly, neither PW 1 nor PW 4 have been put any question in respect of factum of death of their respective fathers. They have made a categorical statement on oath regarding the death of their respective fathers. No cross examination has been offered to dispute that their fathers had not died in the manner averred.
- Reverting back to the provision under the Act, Section 281 thereof provides that where the application is for probate, the petition for probate shall also be verified by atleast one of the witness to the Will in the manner provided thereunder. However, the Section also provides that such verification shall be made when such a witness is procurable. It is settled law that Section 281 of the Act is not mandatory provision but only directory. The Hon'ble Allahabad High Court in case titled Nand Kishore v Bhagi Koer AIR 1958 All. 329 Hamida Begum v State & Ors. PC 03/09 while following the ratio in case titled Ram Singh v Murtibai AIR 1923 Nagpur 41 held that provision of
context, the defence has taken an objection that the Will produced by PW 3 contains only one sheet and there was no annexure to it. This objection can be set at rest as nobody has sought to explain to the Court as to why if Annexure P−2 was not part of the Will ExPW1/1 then how it bears the endorsement of Sub Registrar, Delhi on its reverse page. The registration number, additional book number and volume number, pages and date of registration are provided on the reverse page of Annexure P−2. Moreover, the Will itself states that the testatrix is bequeathing 1/3rd share of the properties as detailed in the Annexed schedule to the Will. Accordingly, the Annexure P−2 is the part of the Will itself. Thus, the argument about invalidity and Hamida Begum v State & Ors. PC 03/09 illegality of the Will can not be sustained. The fact that it is a registered document carries presumption of its genuineness which is of course rebuttable. It is also correct that mere fact that the Will is registered is not itself sufficient to dispel all the suspicion regarding it where suspicion exists without submitting the evidence of registration to a close examination. It is held in Rani Purnima Debi & Anr v Kumar Khagendra Narayan Deb & Anr. AIR 1962 SC 567 (V 49 C88) that if such examination reveals that registration was made in such manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration of will dispel the doubt as to the genuineness of the Will but if the evidence as to registration shows that it was done in a perfunctory manner that the officer registering it did not read it over to the testator or did not bring home to it that he was admitting the execution of Will or did not satisfy himself in some other manner that the testator knew that it was a Will, the execution of which he was admitting, the fact that the Will was registered would not be of much value.
- The entire facts before this Court would reveal that the respondents have taken a bald averment that the Will is forged and fabricated. As to in what circumstances, it could have been forged or fabricated has Hamida Begum v State & Ors. PC 03/09 not been explained. No coherent cross examination has been offered to either PW 1 or PW 4 that the testatrix could not have been of sound disposing state of mind despite the fact that she had remained sick prior to execution of the Will. Both these witnesses have not been suggested that the signature appearing under the name of their fathers were not appended by their fathers on the Will in question.
- Conversely, PW 2 has been cross examined on the aspect of illness of the deceased testatrix. The Will was not executed by the testatrix in her presence. Although, she was present in the house at that time. The witness states that her mother in law got the Will executed in the Court where she did not accompany her. She admits that her mother in law had suffered paralytic attack before her death and that she served her for about 8−10 years on bed. Without offering any suggestion to the witness that the said paralytic attack on her left her incapable of execution of the Will, defence went on to suggest her that she in connivance with her husband has filed a forged and fabricated Will. This in itself can not help the case of the respondents. They had to create suspicious circumstance in not only the execution of the Will but also at the time of its registration. This is despite the fact that PW 2 has made a categorical assertion on oath that her mother in law was taken to the Court by her husband carrying her over his body. No counter suggestion has been given to Hamida Begum v State & Ors. PC 03/09 the witness that she stated falsely. Thus, mere suggestion that she was unable to speak or was mentally unwell or unsound will not suffice. Proving that the testatrix suffered from paralytic attack has no indicia of her being in−capable mentally and not having sound disposing
power of mind. The Will is dated 25.11.1978 and executed on 31.1.1979. The testatrix died on 2 6. 7. 1 9 8 3 a s p e r E x P W 2 / 1. T h u s , t h e r e i s n o i m m e d i a t e p r o x i m i t y b e t w e e n t h e execution/registration of the Will and the date of death of testatrix. I find no suspicious circumstances in the manner averred by the defence. Having said so, the preliminary objection at point (b) above is decided against the respondents.
- So far as the preliminary objection at point (c) above is concerned, it has been a stand of the petitioner that as per the Sunni Law of Shariat, the LRs of the deceased could not have a right of Succession to the properties left by the deceased testatrix as Mohd. Rafiq Qureshi, father of respondents no. 7 to 13 had already died during the life time of the testatrix. They have relied on Mulla's Principles of Mahomedan Law, 19th Edition, Chapter 22−SYN. 101 page 821 that, "It is a well known principle of Mohammedan Law that if any of the children of a man dies before the opening of the succession of his estate, leaving children behind, these grand children are entirely excluded from the inheritance by their uncles Hamida Begum v State & Ors. PC 03/09 and aunts." The same is an extract from the judgment in Abid Ali Khan & Ors. v Secy of State & Anr. AIR 1951 Nagpur 327. As the factum of death of Mohd. Rafiq Qureshi dying prior in point of time to the testatrix is not in dispute, the present petition can not be said to be bad in law for non joinder of parties. This objection is also therefore decided against the respondents and in favour of the petitioner.
The issue is therefore, decided against the respondents and in favour of the petitioner.
Issue No. 2. Whether petitioner is entitled for probate/letter of administration in respect of Will in question? OPP.
- It is correct that as per Section 222 of the Act, the probate can only be granted to an executor. However, it is also correct that if an executor renounces or fails to accept the executorship within the time limit for the acceptance or refusal thereof, the Will may be proved and letters of administration, with a copy of the Will annexed, may be granted to a person who would be entitled to administration in case of intestacy. Same is the law as provided in Section 231 of the Act. It is a stand of the petitioner herein that the named executor of the Will who is Mohd. Saleem, respondent no. 4 had refused to be executor and thus the petitioner being the beneficiary has filed the petition due to such refusal of the executor and has therefore, made Hamida Begum v State & Ors. PC 03/ himself as a respondent. They have also relied on judgment in case titled Raj Rani Bhasin v State 158 (2009) DLT 713 which categorically states that probate proceedings may be instituted by beneficiary under the Will either in absence of executor or on refusal of executor to act. Such a petitioner may either be the sole beneficiary under the Will or may be only one of the beneficiaries. No contrary law on the above has been produced by the respondents. Respondent no. 4 has chosen not to controvert this claim of the petitioner. It being so, the petitioner can file the present probate petition and if she succeeds therein, she can be granted letters of administration with Will annexed.
Section 63 (C) of The Indian Succession Act,1925 requires that Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from
