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Subhir Kumar Das And Another vs . on 4 July, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?AFR

Court No. – 30

Case :- TESTAMENTARY CASES No. – 3 of 2017

Petitioner :- Subhir Kumar Das And Another

Counsel for Petitioner :- Santosh Kukmar Tiwari

Hon’ble Vivek Kumar Birla,J.

1. Supplementary affidavit filed today is taken on record.

2. Heard learned counsel for the petitioners.

3. Present testamentary case has been filed under Chapter XXX of the Rules of the Court seeking grant of letters of administration in respect of the estate of deceased late Deepak Kumar Das which he possessed at the time of his death.

4. On 23.1.2017, following order was passed:

“The applicant claims himself to be adopted son of late Ashok Kumar Das, in respect of whose estate, the instant petition has been filed praying for issuance of letter of administration.

Learned counsel for the applicant is granted time to bring on record the evidence on the basis of which the applicant claims that he is adopted son of late Ashok Kumar Das.

List on 13 February 2017.”

5. On 1.11.2017, following order was passed:

“Learned counsel for the petitioner has been unable to establish from the record as to the relationship of the deceased with the petitioner.

List this petition in due course.”

6. On perusal of record, it appears that Succession Suit No. 483 of 2012 was filed by the petitioners before the Additional Judge, Small Causes Court/Additional Civil Judge, Senior Division, Allahabad, which was dismissed on 22.8.2016 on the ground of jurisdiction.

7. Today, a supplementary affidavit dated 27.2.2017 has been filed. I have perused the supplementary affidavit. The supplementary affidavit has been filed annexing therewith photo copy of the alleged adoption deed dated 22.7.1996. No original document has been annexed with the supplementary affidavit. Even this alleged adoption deed, only photostat copy whereof has been filed, is also not a registered document as required under law. Only a photo copy of the alleged Will Deed dated 14.1.1998 has also been annexed with the supplementary affidavit. Thus, it is reflected from the record that the petitioner has failed to establish on record the relationship of the deceased with the petitioner. He has, thus, failed to establish from any piece of evidence that he is adopted son of late Deepak Kumar Das.

8. This affidavit, though ready, was not filed on 1.11.2017 for reason best known when this Court has recorded a finding that the learned counsel for the petitioner has not been able to establish from the record as to the relationship of the deceased with the petitioner.

9. On perusal of Annexure-4 to the petition I find that the family register does not contain the name of any other family member or next of kin except the name of the petitioner herein, namely, Subhir Kumar Das. This document is a photostat copy of the alleged certified copy of the family register. Further, alongwith supplementary affidavit, as noticed above, only photostat copy of the alleged adoption deed dated 27.7.1996 has been annexed. Even this photostat copy contains the recital that at the time of adoption no deed was executed. The affidavit filed in support of the testamentary case does not contain the age of the petitioner. Similarly, the supplementary affidavit filed today also does not contain the age of the petitioner. A photostat copy of the voter identity card annexed with the affidavit contains only the year of birth as 1980. In the photostat copy of the alleged adoption deed annexed with the supplementary affidavit the date of adoption has also not been mentioned

10. It may also be noted that in paragraph 6 of the affidavit filed in testamentary case it has been stated that to the best of the knowledge the deceased late Deepak Kumar Das died intestate and no Will has been found inspite of due search, whereas in paragraph 3 of the supplementary affidavit it has been stated that late Deepak Kumar Das written a Will deed in favour of the petitioner on 14.1.1998 and a photostat copy of the same has been annexed. It is nowhere stated as to how and when this Will was found by the petitioner. Paragraph 6 of the affidavit and paragraph 3 of the supplementary affidavit are quoted as under:-

(paragraph 6 of the affidavit)

“6. That to the best petitioner knowledge the deceased late. Deepak Kumar Das died intestate and no will has been found in spite of due search.”

(paragraph 3 of the supplementary affidavit)

“3. That the Late. Deepak Kumar Das has written a will deed in favour of the petitioner on 14.1.1998. A photo copy of the will deed dated 14.1.1998 is being filed herewith and marked as Annexure No. 1 to this affidavit.”

11. Thus, the contents of the supplementary affidavit including the documents annexed therewith do not inspire confidence.

12. Section 16 of the Hindu Adoptions and SectionMaintenance Act, 1956 was amended by Uttar Pradesh Civil Laws (Reforms and SectionAmendment) Act, 1976 Section(U.P. Act 57 of 1976) w.e.f. 1977. By this amendment sub-section (2) was inserted, which is quoted as under:-

“(2) In case of an adoption made on or after the 1st day of January, 1977 no court in Uttar Pradesh shall accept any evidence in proof of the giving and taking of the child in adoption, except a document recording an adoption, made and signed by the person giving and the person taking the child in adoption, and registered under any law for the time being in force:

Provided that secondary evidence of such document shall be admissible in the circumstances and the manner laid down in the SectionIndian Evidence Act, 1872.”

13. The said amendment provides that in case of an adoption made on or after first day of January, 1977 no court in Uttar Pradesh shall accept any evidence in proof of the giving and taking of the child in adoption, except a document recording an adoption, made and signed by the person giving and the person taking the child in adoption and registered under any law for the time being in force.

14. Necessary amendment was also made in Section 17 of the Registration Act, 1908 and relevant extract of Clause (c) was added, which is quoted as under:

“(c) In sub-section (3), after the words “by a will”, insert the words “and an instrument recording adoption of a child executed after the first day of January, 1977″.”

15. Needless to point out that Section 17 clearly provides document of which registration is compulsorily. Thus, this photostat copy of the adoption deed which is admittedly not registered cannot be considered as a piece of evidence for the purpose of holding that the petitioner is adopted son of late Deepak Kumar Das.

16. For ready reference Section 278 of the Indian Succession Act, 1945 is quoted as under:-

“278. Petition for letters of administration.–(1) Application for letters of administration shall be made by petition distinctly written as aforesaid and stating–

(a) the time and place of the deceased’s death;

(b) the family or other relatives of the deceased, and their respective residences;

(c) the right in which the petitioner claims;

(d) the amount of assets which are likely to come to the petitioner’s hands;

(e) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(f) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

(2) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’s hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.”

17. Rule 10 of Chapter XXX of the Allahabad High Court Rules is also quoted as under:-

“10. Proof of identity.– The Judge may, where he deems it necessary, require proof, in addition to the usual statement required to be made in the petition of the identity of the deceased or the party applying for the grant.”

18. Clearly in the present case the petitioner has failed to prove his relationship with the deceased and also also failed to prove his identity.

19. A reference may be made in this regard to a judgment of this Court on 26.4.2019 in Testamentary Case No. 14 of 2019 (Syed Merazul Raza, in the matter of SectionLate Jakira Bibi vs. Na). Paragraphs 11, 12 and 13 whereof are quoted as under:-

“11. Section 278 of the Act mandates that an application for letters of administration shall be made by petition and stating (a) the time and place of the deceased’s death; (b) the family or other relatives of the deceased, and their respective residences; (c) the right in which the petitioner claims; (d) the amount of assets which are likely to come to the petitioner’s hands; (e) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the District Judge; and (f) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate. As per Section 300 of the Act, The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge. Rule 10 of Chapter XXX of the Allahabad High Court Rules provides that the Judge may, where he deems it necessary, require to prove, in addition to the usual statement required to be made in the petition of the identity of the deceased or the party applying for the grant. Facts of the case as discussed above in paras-7, 8, 9 and 10, clearly reveal that the petitioner has suppressed the material facts which were required to be stated in the petition as per provisions of Section 278 (1) (b)/(c). He failed to establish his identity as well as the identity of the deceased Jakira Bibi as wife of the father of the petitioner. Therefore, the writ petition also lacks compliance of mandatory provisions of Section 278 of the Act and Rule 10 of Chapter XXX of the Allahabad High Court Rules.

12. In the case of S.P. ChengalVaraya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs and others, AIR 1994 SC 853 (Para-7), the Hon’ble Supreme Court held, as under :

“7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.”

13. From the discussion, it is evident that the present petition is a frivolous petition based on falsehood and, therefore, it deserves to be dismissed with cost in view of the law laid down by Hon’ble Supreme Court in S.P. Chengalvaraya Naidu (dead) by L.Rs. (supra), Punjab State Power Corporation Ltd. Vs. Atma Singh Grewal, (2014) 13 SCC 666 and Dnyandeo Sabaji Naik Vs. Pradnya Prakash Khadekar, (2017) 5 SCC 496 (Paras-9 to 14).”

20. Under such circumstances, I do not find any good ground to proceed with this testamentary case.

21. The same is, accordingly, dismissed.

Order Date :- 4.7.2019

p.s.

 

 

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