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High Court Of Rajasthan
Judgename : V.K.BALI,AJAY RASTOGI
SURENDRA BHATIA - Appellant
Versus
POONAM Bhatia - Respondent
Spl, Appeal (Civ.) 2128 Of 2000
Decided On : 11/22/2005
INDIAN SUCCESSION ACT - SECTION 371 - JURISDICTION - SUCCESSION CERTIFICATE - WILL - EXECUTION - SUSPICIOUS CIRCUMSTANCES - ANCESTRAL PROPERTY - COPARCENARY PROPERTY - HINDU SUCCESSION ACT, 1956 - SECTION 8 - SECTION 6 - SECTION 29-A - ADMISSION - BINDING EFFECT - AMENDMENT OF PLEADINGS - COURT FEES - AD VALOREM COURT FEES.
Fact of the Case:
Surendra Bhatia, brother of Sudershan Bhatia, resisted grant of succession certificate to Poonam Bhatia and her daughter Smita on the basis of Will dated 17/4/1989 (Ex. A. 1) said to have been executed by Sudershan Bhatia, his sister resisted the same on the ground that movable properties owned by Sudershan Bhatia were made from Immovable properties owned by her father, and the said movable properties thus being ancestral, she had a share in the same.
Finding of the Court:
1. The Distt. Judge, Jaipur City had jurisdiction to entertain and try the petition u/s. 372 of the Act for grant of succession certificate. 2. Sudershan Bhatia was ordinarily residing in Jaipur. 3. Poonam Bhatia was the legally wedded wife of Sudershan Bhatia and the child said to have been born out of the union between the two, i. e. Sudershan and Poonam Bhatia was not an illegitimate child. 4. The Will dated 17/4/1989 (Ex. A. 1) is surrounded by suspicious circumstances. 5. Swarn Anand did not contest the grant of succession certificate and it appears from the facts and circumstances of the case and in particular that she sought to file written statement in the year 1997, at the fag end of the trial that it was only when she and Surendra Bhatia realised that they would not be able to resist the claim of Poonam Bhatia and her daughter on the basis of made up Will that she entered defence at such late stage.
Issues: 1. Whether the Distt. Judge, Jaipur City had jurisdiction to entertain and try the petition u/s. 372 of the Act for grant of succession certificate. 2. Whether Sudershan Bhatia was ordinarily residing in Jaipur. 3. Whether Poonam Bhatia was the legally wedded wife of Sudershan Bhatia and the child said to have been born out of the union between the two, i. e. Sudershan and Poonam Bhatia was not an illegitimate child. 4. Whether the Will dated 17/4/1989 (Ex. A. 1) is surrounded by suspicious circumstances. 5. Whether Swarn Anand contested the grant of succession certificate.
Ratio Decidendi: 1. Section 371 of the Act states that the District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place of residence, the district Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this part. 2. A person can have only one domicile for the purpose of succession of his movable property. 3. Admissions made in the pleadings, unless successfully withdrawn on some cogent grounds by way of amending the pleadings, cannot possibly be retracted and shown to be erroneous as otherwise, law of pleadings shall have to be given a complete go by and then it will be open to lead evidence even on the points which are admitted and for which no issues have been framed. 4. The Hindus, Buddhists, Jains and Sikhs have been defined in Explanations (a), (b) and (c) of Sec. 2 of the Hindu Marriage Act, 1955. 5. The propounder of the Will has himself to remove all suspicious circumstances that might be surrounding the Will and that being so, it is not at all necessary to plead such circumstances, be it in the petition itself or in the replication. 6. General rule of succession is governed by Sec. 8 of the Hindu Succession Act, 1956. Property of a male Hindu dying intestate devolves according to the provisions contained in Sec. 8, firstly upon the heirs, being the relatives specified in class I of the Schedule.
Final Decision: 1. Appeal No. 104/2001 filed by Surendra Bhatia and Appeal No. 105/2001 filed by Swarn Anand which pertain to grant of succession certificate, and appeal Nos. 02134/2000 and 02128/2000 filed by Swarn Anand and Surendra Bhatia respectively which pertain to payment of ad valorem Court fees are dismissed with costs. 2. Appeal No. 02128/2000 has been filed by Surendra Bhatia against the order passed by the learned single Judge of this Court dated 29/8/2000 (in SB Civil Misc. Appeal Nos. 245 and 219/2000) wherein it was held that ad valorem Court fee shall be payable on the appeals preferred by the appellants against the order of the Distt. Judge, dated 6/12/1999 is also dismissed.
V. K. BALI, J.
( 1 ) SUDERSHAN Bhatia, born and brought up in the State of Rajasthan, but stated to be a Canadian citizen, died on 21/4/1989 in Germany leaving behind considerable movable and immovable properties. Poonam Bhatia his wife and Smita bhatia, minor daughter, said to have been born out of the wedlock of Sudershan Bhatia and Poonam Bhatia, successfully sought succession certificate with regard to the movable properties of deceased Sudershan bhatia, details whereof have been given in the application u/s. 372 of the Indian succession Act itself as the same was allowed vide orders dated 6/12/1999 passed by tshe district Judge, Jaipur City, Jaipur. Whereas surendra Bhatia brother of Sudershan bhatia resisted grant of succession certificate to Poonam Bhatia and her daughter smita on the basis of Will dated 17/4/1989 (Ex. A. 1) said to have been executed by sudershan Bhatia, his sister resisted the same on the ground that movable properties owned by Sudershan Bhatia were made from Immovable properties owned by her father, and the said movable properties thus being ancestral, she had a share in the same. The two broad defences projected by surendra Bhatia and his sister, not only fizzled out before the learned single Judge but the same also cut no ice in the appeals preferred by them as the same came to be dismissed by the learned single Judge vide orders dated 26-4-2001. It is against these two orders dated 6-12-1999 and 26-4-2001 that the present appeal u/s. 18 of the rajasthan High Court Ordinance, 1949 has been filed.
( 2 ) WHEREAS Mr. A. K. Bhandari, representing Surendra Bhatia (appellant in Appeal No. 104/2001) has primarily challenged the impugned judgments by reiterating the contentions raised before the learned Dist. Judge and the single Judge with regard to the validity of the Will dated 17/4/1989 (Exa. 1), Mrs. Naina Saraf was at pains to explain that the property, subject-matter of succession certificate, was ancestral property and she being a coparcener, would succeed to 1/4th of even of the movable properties owned by Sudershan Bhatia and in the manner aforesaid even if no effect is to be given to the Will, she would be a natural successor to the estate of Sudershan Bhatia, be it movable or immovable properties.
( 3 ) MR. R. P. Garg, per contra, appearing on behalf of the respondents vehemently contends that not only the Will propounded by Surendra Bhatia is an outright act of concoction and forgery, Swarn Anand has absolutely no right whatsoever to succeed to the estate of her brother, and also contends that the due of appellant brother and sister has embroilled the respondents in unsavoury, unethical and frivolous litigation spread over a period of sixteen years on made up and trumped up pleadings and evidence. The questions as posed by learned, counsel appearing for the parties, as men" tloned above, necessarily need a mention of the relevant facts which reveal that Poonam bhatia widow of Sudershan Bhatia in her application that was filed u/s. 372 of the indian Succession Act inter alia pleaded that sudershan Bhatia, her husband, had properties at Jaipur and Delhi. He died on 21-4-1989 in Germany. She along with her daughter was the sole heir to claim estate of the deceased. This application was resisted by the appellant who as mentioned above, are brother and sister of deceased Sudershan bhatia. Surendra Bhatia propounded a Will dated 17/4/1989 (Ex. A. 1) said to have been executed by his brother Sudershan Bhatia. He further stated that relations between his deceased brother and Poonam Bhatia were strained and he never wanted to give any property to her. The Will propounded by surendra Bhatia, it was claimed, was executed by the deceased Sudershan Bhatia in a hospital at Frankfurt in Germany.
( 4 ) ON the respective pleadings of the parties, learned Distt. Judge framed following four issues : (i) Whether deceased executed any Will and because of Will applicants are not entitled for succession
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