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Sh. Kichak vs 4 (I) Smt. Sheela Devi on 31 May, 2019

IN THE COURT OF SH. GAJENDER SINGH NAGAR : LD.
ADMINISTRATIVE CIVIL JUDGE­ CUM­ ADDITIONAL
RENT CONTROLLER (CENTRAL) : DELHI
Petition No. : SC/32928/16
In the matter of:­

Sh. Kichak,
S/o. Late Sh. Mavasi,
R/o. H.No. 383, Village Bera Ferozpur,
Mohalla Peerwala, Tehsil Siyana,
Distt. Bullandshahar,
Uttar Pradesh.
….Petitioner.
Versus
1 The State NCT of Delhi.

2 Sh. Ram Lal,
S/o. Late Sh. Mavasi,
R/o. H.No. 632, Village Bera Ferozpur,
Mohalla Peerwala, Tehsil Siyana,
Distt. Bullandshahar,
Uttar Pradesh.

3 Sh. Karanpal,
S/o. Late Sh. Mavasi,
R/o. H. No. 599, Village Bera Ferozpur,
Mohalla Peerwala, Tehsil Siyana,
Distt. Bullandshahar,
Uttar Pradesh.

4 (i) Smt. Sheela Devi,
W/o. Late Sh. Hargu Lal,

(ii) Sh. Babloo S/o. Late Hargu Lal,

Petition no. SC/32928/16
(iii) Sh. Gajender S/o. Late Hargu Lal,

(iv) Ms. Babita D/o. Late Hargu Lal,

(v) Ms. Rajendree D/o. Late Hargu Lal,

(vi) Ms. Rekha D/o. Late Hargu Lal,

All R/o. Village Bera Ferozpur,
Mohalla Peerwala, Tehsil Siyana,
Distt. Bullandshahar,
Uttar Pradesh.
5 The Branch Manager,
Bank of India,
Arya Samaj Road, Karol Bagh,
New Delhi­110005.
…..Respondents.
Date of Institution : 01.04.2016
Date of order when reserved : 31.05.2019
Date of order when announced : 31.05.2019
JUDGMENT:

1 The present succession petition has been filed by the

petitioner namely Sh. Kichak in respect of saving bank account and

FDRs left by Smt. Bhagwati Devi, who expired on 05.09.2015 at

Bullandshahar, Uttar Pradesh, claiming that the deceased Smt.

Bhagwati Devi was the real sister of petitioner Sh. Kichak.

2 After filing of this petition, notice was given to the general

public by way of publication in the newspaper ‘ Bandematram” dated

Petition no. SC/32928/16
04.05.2016, but none has appeared from general public to oppose or

contest the present petition.

3 Respondent No. 4 (iii) namely Sh. Gajender S/o. Late Sh.

Hargu Lal has filed objections wherein it is averred that he is the

adopted son of the deceased. It is further averred that he is the only

entitled person to get the succession certificate as per the law of

succession. It is averred that the present petitioner and respondents

no. 2 and 3 have stolen the original documents and some other

important papers, photos, adoption deed etc. of the deceased Late Smt.

Bhagwati Devi and due to which, respondent no. 4(iii) got registered

an FIR in PS Prasad Nagar, Karol Bagh, New Delhi. It is further

averred that respondents no. 2 and 3 wants to grab the property of the

deceased Late Smt. Bhagwati Devi to deprive the rights of the

respondent no. 4 (iii) for which respondent No. 4 (iii) has full right,

title and interest to get the succession certificate only in his favour. It

is averred that petitioner and defendant No. 2,3,4­i, iv, v, vi are not

entitled to grant of any share as claimed by petitioner as per law from

any corner, as the respondent no. 4 (iii) is the adopted son of the

Petition no. SC/32928/16
deceased namely Smt. Bhagwati Devi.

4 Written statement filed on behalf of respondents no. 2 3

namely Sh. Ram Pal and Sh. Karan Pal wherein it is averred that they

are the real brothers of the deceased Smt. Bhagwati Devi and as such

they are class­I legal heirs of the deceased Smt. Bhagwati Devi, hence,

respondents no. 2 3 have ¼th share each in the assets of the deceased

Smt. Bhagwati Devi. It is further averred that the nomination of Sh.

Gajender is illegal and wrong. It is averred that Sh. Gajender S/o.

Late Sh. Hargulal does not have exclusive right over the assets of Late

Smt. Bhagwati Devi.

5 Written statements filed on behalf of respondents no. 4(i),

(ii), (iv), (v) and (vi) wherein they supported claim of respondent No.

4 (iii) and contended on same lines.

6 Replication filed on behalf of petitioner to the written

statement of respondent no. 4(iii) and respondent No. 4 (i), (ii), (iv),

(v) (vi) denying all the allegations leveled against him.

7 In order to substantiate his case, the petitioner has

examined two witnesses. PW­1 Sh. Bharat Bhushan Rohilla, Sr.

Petition no. SC/32928/16
Manager, Bank of India, Karol Bagh branch, Delhi deposed that one

FD account bearing no. 600656110001682 and one saving bank

account bearing no. 600610100018164, lying in the name of Bhagwati

having amount of Rs.94,083.90p and Rs.30,173.74p respectively. The

certified copies of the said accounts are exhibited as Ex. PW­1/1 and

Ex. PW­1/2 respectively. In his cross examination, it is admitted by

the witness that as per record, Sh. Gajender is the nominee in the said

FDR. It is further stated that there is no nomination in the savings

bank account of Bhagwati.

8 PW­2 Sh. Kichak, the petitioner deposed that deceased

Smt. Bhagwati Devi had four brothers i.e. the present petitioner and

respondents no. 2 and 3 and Late Hargu Lal. It is stated by him that

the respondents no. 4 (i) to 4 (iv) are the legal representatives of Late

Sh. Hargu Lal. It is stated by him that the deceased Bhagwati Devi

had no issue and her husband had died 20 years prior to her. Hence,

the present petitioner and respondents no. 2 to 4 are the only legal

heirs of Late Smt. Bhagwati Devi. It is stated by him that Smt.

Bhagwati Devi was residing at H.No. 5890/4, Block No. 4, Gali No. 3,

Petition no. SC/32928/16
Dev Nagar, Karol Bagh, New Delhi, however, in the last days, she was

staying at Village Bera Ferozpur, Mohallah Peerwala, Tehsil Siyana,

District Bulandshahar, U.P. at her parental home in the house of her

brothers. It is stated by him that the brothers of Smt. Bhagwati Devi

looked after her in her last days. It is stated by him that Smt.

Bhagwati Devi died on 05.09.2015 and her last rites were performed

by her brothers. It is stated by him that Smt. Bhagwati Devi has left

behind one saving bank account bearing no. 600610100018164 and

two Fixed Deposit accounts bearing no. 600656110001682 and

600656110001752 maintained with Bank of India, Arya Samaj Road,

Karol Bagh, New Delhi. He has relied upon the documents i.e. the

death certificate of deceased Smt. Bhagwati Devi which is exhibited as

Ex. PW­2/1. The photocopy of voter I card of deceased, Smt.

Bhagwati Devi which is now marked as Mark­PC. The photocopy of

passbook of saving bank account bearing no. 600610100018164 of

deceased Smt. Bhagwati Devi which is now marked as Mark­PD. The

voter I card of the present petitioner is exhibited as Ex. PW­2/4. The

voter I card of the respondent no. 2 is exhibited as Ex. PW­2/5. The

Petition no. SC/32928/16
voter I card of respondent no. 3, Sh. Karanpal is marked as Mark PE.

The copy of fixed deposits vide account no. 600656110001682 and

600656110001752 lying with Bank of India, Arya Samaj Road, Karol

Bagh, New Delhi are marked as Mark PA Mark PB. No cross

examination of this witness was conducted on behalf of respondents

no. 2 and 3 respondents no. 4 (i) to 4 (vi).

9 No other petitioner’s witnesses examined and PE is closed.

10 On the other hand, respondent no. 4 (iii) has been examined

as RW­4/W­1. It is stated by him that he is the adopted son of Smt.

Bhagwati Devi wife of Late Sh. Bhim Sen, who was the owner of the

property in question. He has marked the copy of adoption deed as

Mark RW­4/W­1/A. It is stated by him that the present petitioner and

respondents no. 2 and 3 have stolen the original

documents/paper/photos and adoption deed etc. due to which

respondent no. 4 got registered an FIR in police station Prasad Nagar,

Karol Bagh, New Delhi, the copy of the same is marked as Mark RW­

4/W­1/B. It is stated by him that the respondents no. 2 and 3 alongwith

petitioner wanted to grab the property of deceased Bhagwati Devi. It is

Petition no. SC/32928/16
stated by him that he is the only legal heir of the deceased Smt.

Bhagwati Devi being adopted son. In his cross examination, it is

stated by him that his year of birth is mentioned as 1980 in his voter I

card. It is accepted that presently he is not residing at 5890, Gali No.

4, Block No. 7, Dev Nagar, Karol Bagh, Delhi. It is accepted that he

was resided in the abovesaid house for about 8 years. It is stated that

he left the abovesaid house when he was about 15 years of age. It is

accepted that when he left the abovesaid house at the age of 15 years,

the deceased Bhagwati Devi was residing in the abovesaid house. It is

stated that he has moved an application for correction of his date of

birth in his voter I card, but somehow correction could not be carried

out. It is accepted that his voter I card was issued to him in the year

2011. It is accepted that he cast his vote on the basis of his voter I

card, Ex. RW­4/W­1/X­1. He has denied the suggestion that he is 38

years old. It is accepted that at present he is not residing at his native

place Bera Ferozpur, Mohalla Peer Wala, Tehsil Siyana, Distt.

Bulandshahr, Uttar Pradesh. It is accepted that he is residing in

Village Amarpura, Intori, Near Hapur since last 10 years. It is

Petition no. SC/32928/16
accepted that he does not have the original of the Adoption Deed mark

RW­4/W­1/A. It is that he has lodged a missing complaint in Prasad

Nagar Police Station, Delhi in respect of missing of the original

Adoption Deed. It is accepted that he did not get prepare the said

Adoption Deed, however, the said adoption deed was got prepared by

the deceased Bhagwati Devi. It is accepted that the deceased had

handed over the said adoption deed to him. It is stated by him that the

said Adoption Deed was in his possession for the last 5 years. It is

accepted that he has not filed the said adoption deed in the bank. It is

accepted that he did not file the adoption deed in the bank to claim the

amount lying deposited in the name of the deceased, because he was

nominated by the deceased Smt. Bhagwati Devi. He denied the

suggestion that the said adoption deed was not in his possession at the

time of death of the deceased. He denied the suggestion that the he

got prepared the said adoption deed after the death of Bhagwati Devi.

It is accepted that the deceased Bhagwati Devi expired while she was

staying in Village Bera Ferozpur, Distt. Bulandshahr, Uttar Pradesh.

It is stated that he was present in the Village when the deceased had

Petition no. SC/32928/16
died. It is stated that his father was not alive at the time of death of the

deceased Bhagwati Devi. It is stated by him that the expenses of last

rites and Tehrawi of the deceased were borne by him, however, he

does not have any document to prove the said expenses. He denied

the suggestion that the entire expenses were borne by the respondents

No. 2 and 3 for the performance of last rites and Tehravi of the

deceased. It is accepted that the original Adoption Deed was in his

possession when he lodged the missing complaint dated 07.04.2016

which is marked as Mark RW­4/W­1/B. He denied the suggestion that

he is not the sole legal heir of the deceased Smt. Bhagwati Devi. He

denied the suggestion that the respondents no. 2 and 3 have 1/4th share

each in the assets of the deceased Bhagwati Devi.

11 No other respondent’s witnesses examined and RE is

closed.

12 The court heard the arguments advanced by the Ld.

Counsel for the parties and perused the record carefully.

13 The contention of the Ld. Counsel for the petitioner is that

respondent no. 4 (iii) namely Sh. Gajender neither filed the original

Petition no. SC/32928/16
adoption deed nor proved the same by calling the attesting witnesses

of the deed. It is further contended that at the time of adoption, Sh.

Gajender was 22 years old as his year of birth as mentioned in his

voter I card is 1980 no other documents qua his date of birth has

been filed.

14 On the other hand, Ld. Counsel for the respondent no. 4(iii)

Sh. Gajender contended that he is the only one entitled to grant of

Succession Certificate being the son of the deceased Smt. Bhagwati

Devi. The deceased had adopted Sh. Gajender during her life time. It

is further contended that the adoption deed was prepared and signed in

the presence of the witnesses. It is contended that the deceased Smt.

Bhagwati Devi was not well­aware about the registration of the

adoption deed. However, the same was duly attested by the notary

and this fact has not been denied by the petitioner. It is contended

that the petitioner and the other respondents are not class­I legal heir

of the deceased hence they are not entitled to grant of Succession

Certificate. It is contended that a Fixed Deposit bearing no.

60065110001752 dated 04.03.2018 was encashed vide DD No. 76007

Petition no. SC/32928/16
dated 09.03.2016 to Sh. Gajender on the basis of nomination as the

said FDR was in the joint name of the deceased and the respondent no.

4 (iii). It is contended that the petitioner and respondents have not

filed any document whereby they established their relationship with

the deceased as legal heir. It is contended that the property in question

came from the husband (in­Laws) of the deceased and not from the

parents of the deceased.

15 In the present petition, the petitioner Sh. Kichak has filed

the present succession petition qua the debts and securities of the

deceased Smt. Bhagwati Devi being the brother of the deceased. The

respondents namely Sh. Ram Pal and Sh. Karanpal are also the

brothers of the deceased. However, a brother of the deceased namely

Hargu Lal had expired leaving behind his LRs, who are also

respondents in the present petition as respondents no. 4(i) to 4 (vi), out

of them, respondent no. 4 (iii) Sh. Gajender is claiming to be the

adopted son of the deceased. It is admitted fact that the deceased Smt.

Bhagwati Devi was married and died issueless. It is also admitted that

her husband had expired 22 years prior to her. Hence, an important

Petition no. SC/32928/16
question to be determined in the present petition is whether respondent

No. 4(iii) Sh. Gajender is the adopted son of the deceased or not.

16 It is to be noted that in the present matter alleged adoption

Deed of Respondent No. 4 (iii) has not been proved. Respondent No.

4 (iii) has even failed to prove, if the original adoption deed is missing.

The alleged FIR is infact a “Lost Article Report”. Even, in the report,

it is not mentioned that any Adoption Deed is lost, though, it is written

that some affidavit has been missing. The registration of this “Lost

Article Report” after filing of the present petition appears to be

creating a self serving document by respondent no. 4 (iii). It is to be

noted that present petition was filed on 01.04.2016 and the alleged

“Lost Article Report” was registered on 07.04.2016.

17 It is stated by the respondent no. 4 (iii) in his written

statement that petitioner had stolen the adoption deed while in the

“Lost Article Report”, it is stated that some affidavit has been missing.

Thus, there is apparent contradiction in the stand of the Respondent

No. 4 (iii), which makes his story unbelievable.

18 Further, it is to be noted that an adoption has to be as per

Petition no. SC/32928/16
the provisions of Hindu Adoption and SectionMaintenance Act which

provides provisions for giving and taking a child in adoption. Further,

a adoption can be done only as per the Hindu Adoptions and

SectionMaintenance Act. As per Sectionsection 10 (iv) of The Hindu Adoptions and

SectionMaintenance Act, 1956 a person can adopt any child, only if he or she

(child) has not completed the age of fifteen years, unless there is a

custom or usage applicable to the parties which permits persons who

have completed the age of fifteen years being taken in adoption.

Respondent no. 4 (iii) Sh. Gajender has proved his voter I card, as per

which, his year of birth is 1980. No other documents with regard to his

date of birth has been filed by the respondent. Thus, it is established

that year of his birth is 1980 and as such at the time of adoption i.e.

09.04.2002, respondent no. 4 (iii) Sh. Gajender was 22 years old,

hence the said adoption, if any, was in contravention of Sectionsection 10 (iv)

of The Hindu Adoptions and SectionMaintenance Act, 1956. It is to be noted

that as per Section 5 of the Hindu Adoptions and SectionMaintenance Act,

any adoption made after commencement of this Act which is not in

accordance with the provisions of this Act shall be void. Thus, any

Petition no. SC/32928/16
such adoption of Sh. Gajender by the deceased is void, hence, Sh.

Gajender can not be held adopted son of the deceased. So far as the

custom or usage prevailing in his society with regard to adoption of a

child more than 15 years of age is concerned, respondent no. 4 (iii) has

not even mentioned any such custom or usage in his testimony.

19 It is admitted fact that deceased was married and died

issueless. The husband of the deceased had also expired. Section, 15

of SectionHindu Succession Act, which provides general rules of succession

in the case of female Hindus is reproduced here :­

15. General rules of succession in the case of female

Hindus ­ (I) The property of a female Hindu dying intestate shall

devolve according to the rules set out in Sectionsection 16 :­

(a) firstly, upon the sons and daughters (including `

the children of any pre­deceased son or

daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

Petition no. SC/32928/16
(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub­section (1), ­

(a) any property inherited by a female Hindu from

her father or mother shall devolve, in the

absence of any son or daughter of the deceased

(including the children of any pre­deceased son

or daughter) not upon the other heirs referred to

in sub­section (1) in the order specified therein,

but upon the heirs of the father; and

(b) any property inherited by a female Hindu from

her husband or from her father­in­law shall

devolve, in the absence of any son or daughter

of the deceased (including the children of any

pre­deceased son or daughter) not upon the

other heirs referred to in sub­section (1) in the

order specified therein, but upon the heirs of the

husband.

20 Thus, in the present case, the deceased died issueless and

Petition no. SC/32928/16
husband of the deceased had also expired prior to her. Further, there is

no proof or even contention that debts and securities in her hand were

inherited by her from her father or mother, hence her debts and

securities which are subject matter of the present petition would

devolve upon the person in second entry i.e. the heirs of the husband,

which include mother, brother, sister etc. of the husband of the

deceased, however, in this case, petitioner (who are heir of father of

deceased) has not disclosed the name of heirs of husband of the

deceased. In the absence of making heirs of husband of the deceased

as party in the matter, who falls in an entry earlier to the present

petitioner and would disentitled the petitioner from claiming the debts

and securities of the deceased, the present petition is liable to be

dismissed.

21 Since, petition is dismissed, hence succession certificate

can not be given to any respondent even if eligible, however in the

present case, respondent No. 4 (iii) Sh. Gajender has miserably failed

to prove his alleged adoption by the deceased. ( Reliance being placed

on a case decided by Hon’ble Delhi High Court cited as 2014 SCC

Petition no. SC/32928/16
OnLine Del 620). Accordingly, neither the petitioner nor the

respondents are entitled to grant of succession certificate qua the debts

and securities of deceased Smt. Bhagwati Devi, without disclosing

about her legal heirs falling in the entry prior to the entry wherein

petitioner and respondents would fall. The present petition accordingly

dismissed.

22 File be consigned to Record Room.

Announced in the open court (GAJENDER SINGH NAGAR )
on 31.05.2019 Administrative Civil Judge­cum­
Additional Rent Controller (Central)
Delhi.

THIS JUDGMENT CONTAINS 18 PAGES

Petition no. SC/32928/16
SC/32928/16

31.05.2019

Present : None.

Vide separate judgment of even date, the present petition is

dismissed.

File be consigned to Record Room.

(Gajender Singh Nagar)
ACJ/ARC (Central)
Delhi/31.05.2019

Petition no. SC/32928/16
Petition no. SC/32928/16

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