Arti Ghosh @ Aroti Ghosh v. Govt of NCT of Delhi and Anr

1. The petitioner invokes the writ jurisdiction of this Court under Article 226 of the Constitution of India, 1950, seeking directions to the respondent No.2/DDA[1] to carry out mutation and convert the property bearing No. 224, Tagore Park, Delhi-110009 (hereinafter referred as the ‘subject property’) in the name/favour of the petitioner on the basis of registered Will dated 05.05.2004 executed by the erstwhile lessee/allottee, namely late Shri Bishwanath Das (hereinafter referred as the ‘allottee/testator’).

2. Shorn of unnecessary details, evidently the subject property was allotted to the allottee/testator, who executed a registered Will dated 05.05.2004 in favour of the petitioner, thereby bequeathing to the petitioner all of his movable and immovable assets including the subject property upon his death. During the lifetime of the allottee/testator, he also applied for conversion of the subject property from leasehold to freehold, upon which the respondent No.2/DDA sought deficient documents i.e. Form „C‟ and „D‟ with regard to the sanction plan of the subject property. The same was replied by the allottee/testator to the effect that documents sought were lost and NCR[2] No. 1979/2013 dated 16.09.2013 registered with Police Station Mukherjee Nagar, Delhi, was attached with the reply.

3. However, before any action could be taken, the allottee/testator passed away on 12.12.2013, and the petitioner, on the basis of the aforesaid registered Will dated 05.05.2004, applied for mutation as well as conversion of the subject property in her name by submitting all the relevant documents. Although mutation of the subject property was carried out in favor of the petitioner in the house tax records maintained with the MCD[3], there was an inordinate delay on the part of the respondent No.2/DDA in carrying out the mutation upon the death of the allottee/testator; and eventually the petitioner received a letter dated 07.01.2015 to the effect that she should submit a “Letter of Administration and/or a decree of declaration” from the competent Court of law with regard to her identity as a legatee and her entitlement over the subject property left behind by the deceased sublessee/allottee. Delhi Development Authority Non-Cognizable Report

4. Aggrieved thereof, the petitioner preferred the present writ petition on 11.05.2016. Suffice to state that the respondent No.2/DDA in its counter-affidavit acknowledged that the sub-lease deed was executed in favour of the allottee/testator on 19.04.1978; and that he had applied for conversion of the subject property into freehold vide application No. 0152139 dated 16.05.2013 but certain discrepancies were found inter alia acknowledging that the wife of the allottee/testator died on 26.02.2010 prior to his death. It is also acknowledged that a copy of the Will was submitted whereby it was sought to be explained that the petitioner had been living and taking care of the deceased and his wife for more than 30 years; and that as per the declaration filed on an affidavit with the respondent No.2/DDA, no consideration, or General Power of Attorney, or Sale Agreement had been executed by the allottee/testator with respect to the subject property; and that the subject property had not passed hands during the lifetime of the allottee/testator.

ANALYSIS & DECISION:

5. Having heard the learned counsels for the parties and on perusal of the record, unhesitatingly, the respondent No.2/DDA cannot insist upon the petitioner to submit Letters of Administration or a decree of declaration as sought from the competent Court of law, for the simple reason that a registered Will is neither mandated to be probated nor any Letter of Administration is required, much less a decree of declaration from a Court of law. Municipal Corporation of Delhi

6. In this regard, reference can be invited to the decision by this Court in the case of Winifred Nora Theophilus v. Lila Deane[4], wherein, while interpreting Section 2135 and Section 576 of the Indian Succession Act, 1925, it was held as under:

213. Right as executor or legatee when established.—(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in 3 [India] has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed. [(2) This section shall not apply in the case of wills made by Muhammadans [or Indian Christians], and shall only apply—

(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of section 57; and

(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such wills are made within the local limits of the [ordinary-original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.] [57. Application of certain provisions of Part to a class of wills made by Hindus, etc.—The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply— (a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the LieutenantGovernor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and (b) to all such wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits, [and

(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):] Provided that marriage shall not revoke any such will or codicil.] classes specified in Classes (a) & (b) of Section 57. Clauses (a) and (b) of Section 57 read as under: "[57] Application of certain provisions of Part to a class of wills made by Hindus, etc-The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply- (a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and (b) to all such wills and codicils made outside those territories and limits so far as relates to Immovable property situate within those territories or limits".

11. On interpretation of Section 213 read with Section 57 (a) and (b), the Courts have opined that where the will is made by Hindu, Buddhist, Sikh and Jaina and were subject to that Lt. Governor of Bengal or within the local limits of ordinary original civil jurisdiction of High Courts of Judicature at Madras and Bombay or even made outside but relating to Immovable property within the aforesaid territories that embargo contained in Section 213 shall apply. From this it stands concluded that if will is made by Hindu, Buddhist, Sikh or Jaina outside Bengal, Madras or Bombay then embargo contained in Section 213 shall not apply. This is what the various judgments cited by the leaned counsel for the defendants decide. Therefore there is no problem in arriving at the conclusion that if the will is made in Delhi relating to Immovable property in Delhi by Hindu, Buddhist, Sikh or Jaina, no probate is required.”

7. Further, reference can also be made to a decision by this Court in the case of Ramesh Grover v. DDA[7] wherein the facts were delineated in paragraph (12) of the Judgment, which are as under: