Rajasthan High Court
Surendra Bhatia vs Poonam Bhatia And Ors. on 22 November, 2005
Equivalent citations: AIR 2006 Raj 128, I (2006) DMC 667, RLW 2006 (1) Raj 612, 2006 (1) WLC 648
Bench: V Bali, A Rastogi
1. Sudarshan Bhatia, born and brought up in the State of Rajas-than, but stated to be a Canadian citizen, died on 21.4.1989 in Germany leaving behind considerable movable and immovable properties. Poonam Bhati his wife and Smita Bhatia, minor daughters, said to have been born out of the wedlock of Sudarshan Bhatia and Poonam Bhatia, successfully sought succession certificate with regard to the movable properties of deceased Sudarshan Bhatia, details whereof have been given in the application under Section 372 of the Indian succession Act itself as the same was allowed vide orders dated 6.12.1999 passed by the District Judge, Jaipur City, Jaipur. Whereas Surendra Bhatia brother of Sudarshan Bhatia resisted grant of succession certificate to Poonam Bhati and her daughter Smita on the basis of Will dated 17.4.1989 (Ex.A.l) said to have been executed by Sudarshan Bhati, his sister resisted the same on the ground that movable properties owned by Sudarshan Bhatia were made from immovable 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 Under Section 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 District Judge and the Single Judge with regard to the validity of the Will dated 17.4.1989 (Ex.A.l), 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 l/4th of even of the movable properties owned by Sudarshan 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 Sudarshan 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 duo 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 mentioned above, necessarily need a mention of the relevant facts which reveal that Poonam Bhati widow of Sudarshan Bhati in her application that was filed Under Section 372 of the Indian succession Act inter alia pleaded that Sudarshan 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 Sudarshan Bhatia. Surendra Bhatia propounded a Will dated 17.4,1989 (Ex.A. 1) said to have been executed by his brother Sudarshan 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 Sudarshan Bhatia In a hospital at Frankfurt in Germany.
4. On the respective pleadings of the parties, learned District Judge, framed following four issues:
(i) Whether deceased executed any Will and because of Will applicants are not entitled for succession certificate;
(ii) Whether Will is legally valid and effective; (Hi) Whether probate is necessary;
(iv) Whether Will was to be attested according to German Law or it is otherwise also illegal.
5. Whereas learned trial judge returned findings on issues No.l and 2 in favour of the respondent-plaintiffs, findings on remaining issues were returned against the defendant-appellants and the Will was held not to have been validly executed. The same was also held to be surrounded by suspicious circumstances. The application for grant of succession certificate in view of the findings as mentioned above, was allowed vide judgment dated 6.12.1999, in respect of properties referred to in Schedule-A and B annexed to the application. Aggrieved against order passed by the learned District Judge appeals came to be filed before the learned Single Judge with the result as already indicated above.
6. Mr. A.K., learned counsel representing the appellant Surendra Bhatia, at the very outset, contends that Sudarshan Bhatia was a Canadian citizen and as per the evidence that has come on records, he was for major part residing in Germany itself. The very application filed for grant of succession certificate in view of provisions contained in Section 5(2) of the Act was not maintainable before the learned District Judge, Jaipur City. Even though this contention was not raised either before the learned District Judge or the Single judge, Mr. Bhandari, contends that this being a jurisdictional question going to the root of the case could be taken up at any stage and the mere fact that this argument was not raised earlier, would not put any embargo on the right of the appellant to rake up such points which may touch the very jurisdiction of the Court to entertain petition under Section 372 of the Act.
7. Mr. R.P. Garg representing the respondents, on the other hand, vehemently contends that the question raised by Mr. Bhandari is a mixed question of law and fact and should not be permitted to be raised for the first time in second appeal. He further contends that the point with regard to competence of the District Judge to entertain and try petition under Section 372 of the Act should not be permitted to be raised for the added reason that this point has been raised after sixteen years of marathon litigation and at this stage and time, if the widow and minor daughter of Sudarshan Bhatia have to be shown an alternative forum to vindicate their stands, then they shall be put to such tremendous loss which cannot be compensated by any means whatsoever. He also joins issue with Mr. Bhandari with regard to competence of the District Judge to entertain and try petition under Section 372 of the Act.
8. Having examined the rival contentions of the learned counsel appearing for the parties as noted above, we are of the view that the appellants should not be permitted to raise the point with regard to competence of the District Judge to try petition under Section 372 of the Act at this stage. We are also of the view that the question posed by Mr. Bhandari is a mixed question of law and fact and further that even if this question is permitted to be raised, the same, in the context and facts and circumstances of the case, would have no merit whatsoever.
9. The appellants, when served with the notice of petition under Section 372 of the Act submitted to the jurisdiction of the learned District Judge, filed written statement, claimed issues and went for trial. For nine long years, when the matter remained pending before the learned District Judge no objection with regard to the jurisdiction of that court to entertain petition Under Section 372 of the Act, was ever raised. No issue was claimed either by the appellants. Learned District Judge allowed the petition, as mentioned above, on 6.12.1999. Thereafter, the matter remained pending either before the learned Single Judge or before the Division Bench for a period of six years and it is only at the time of arguments that this point has been raised. In the process, as mentioned above, a period of sixteen years has gone by. If Poonam Bhatia and her minor daughter are relegated to vindicate their stand in an alternative forum at this stage, we accept the contention of the learned counsel representing them that they cannot be compensated by any means, whatsoever. The widow and daughter of Sudarshan Bhatia for all these sixteen years have been deprived of even the movable properties left by Sudarshan Bhatia. It is obvious that they had not been able to utilise the finances to which they had a right and which would have certainly helped them in making their life better and comfortable. It would be too inequitous at this stage to force them with another bout of litigation which may spell over yet another period of sixteen years, if perhaps the point with regard to jurisdiction was taken in the first instance, Poonam Bhatia and her daughter would have knocked at right place for justice and all this valuable time would not have been lost. It may be true that the point relating to jurisdiction going to the root of the case can be agitated at any stage but that is only when the court might permit so. In the facts of the present case, the Court finds that returning petition Under Section 372 of the Act to Poonam Bhatia and her daughter and asking them to obtain the desired relief from another forum, at this stage, would cause untold misery and hardship to them and to avoid the same, is always the first anxiety of every Court.
10. Having held that the appellants should not be permitted to agitate competence of petition Under Section 372 of the Act before the learned District Judge, Jaipur City, Jaipur, no occasion arises to deal with the matter any further but since the parties have addressed lengthy arguments it would be worthwhile to determine as to whether the District Judge, Jaipur City had jurisdiction to entertain and try petition under Section 372 of the Act even though the discussion and the decision on the point mentioned above may be academic. Before, we may however, take the said exercise into hand, in context of the relevant provisions of the Act, it would be worthwhile to first examine as to even though Sudarshan Bhatia might have been a citizen of Canada as well, whether he was ordinarily residing in Jaipur. Primarily, the answer to the question posed before us would depend upon as to whether Sudarshan Bhatia was ordinarily residing in Jaipur as we shall discuss in the subsequent paras after making a mention of the relevant provisions of the Act of 1925.
11. In para 7 of the petition filed under Section 372 of the Act, it had been clearly averred by Poonam Bhatia and her daughter that the deceased Sudarshan Bhatia even though a non-resident Indian, was ordinarily residing and doing business in the area of Jaipur. In the corresponding para of the written statement filed on behalf of the appellants, it has been clearly admitted that the deceased was ordinarily residing and doing business at Jaipur. The relevant part of para 7 of the written statement translated into English reads as under:
Contents of para 7 of he petition are admitted to the extent that the deceased was ordinarily residing and doing business at Jaipur and that he had movable and immovable properties in Jaipur and Delhi.
12. Poonam Bhatia, in the depositions made by her stated that Sudarshan Bhati was running a company in the name of Jaipur Oriental Tapiche. her husband Sudarshan Bhatia had business in Germany, Canada and Jaipur. In Jaipur, the business was run in the name of Jaipur Oriental Tapiche Pvt. Ltd. He was doing business in Jaipur since May, 1986. In the beginning, her husband Sudarshan Bhatia and the sister of her husband Sunita Bhatia were shareholders of the Company and at the time of death of Sudarshan Bhatia, she was a shareholder of the company along with her husband.... Her husband Sudarshan Bhatia in the beginning of their marriage was residing at Jawahar Nagar, Jaipur and she was residing with him at D-129, Basant Marg, Banipark, Jaipur, her husband stayed at Jawahar nagar upto 5.2.1986 and thereafter, in Basant marg, Bani Park, Jaipur. She knew Sudarshan Bhatia before their marriage, he was residing in the beginning at Jaipur in Jawahar Nagar.... Before going to Germany in February, 1989, Sudarshan Bhatia was admitted in Escorts Hospital for check-up. For the said purpose, he remained admitted from 16.2.1989 to 28.2.1989.
13. Surendra Bhatia who appeared as DW-1 inter alia deposed that in December, 1988, Poonam Bhatia and Sudarshan Bhatia were having meals separately but in the same house. He also stated that Sudarshan Bhatia was an Indian Citizen and had not obtained citizenship of Germany. He further stated that before marrying Poonam Bhatia, Sudarshan Bhatia for most of the time was living in Germany but after marriage, for most of the time, he was living in India. He also admitted that in March, 1989 Sudarshan Bhatia and Poonam Bhatia were living in the same house.
14. Pradeep Bhatia brother of the deceased Sudarshan Bhatia and Surendra bhatia who was examined as DW-2/1 stated in examination- in-chief that after marriage Sudarshan Bhatia and Poonam Bhatia were residing in Basant marg, Bani Park. Surendra Bhatia was also living in the aforesaid house. He also stated that the factory of the company and the residence of Surendra Bhatia were separate. He also stated that the office work was looked after by Sudarshan Bhatia.
15. Sumendra Anand who was examined as DW-2/3 stated in examination-in-chief that Surendra Bhatia was residing with his elder brother Sudarshan Bhatia. Surendra Bhatia and Sudarshan Bhatia were living together. In his cross-examination, he stated that Sudarshan Bhatia was residing in Canada 20-25 years ago but since when he came and settled in India, he would not remember. He again said that Sudarshan Bhatia was residing in India for last 20-22 years. He also stated that after marriage, Sudarshan Bhatia and Poonam Bhatia resided in their house No.4-Ka-l, Jawahar Nagar, Jaipur for about a year and thereafter, they resided in Bani Park, Basant marg in House No.D-129.
16. Alok Anand nephew of Surendra and Sudarshan Bhatia who was examined as DW-2/2 stated in his examination in chief that Surendra Bhatia was residing with Sudarshan Bhatia.
17. From clear admission in the pleadings and over-whelming evidence, which includes admissions of the appellant Surendra Bhatia and the evidence adduced by him, it is crystal clear that even though Sudarshan Bhatia might have obtained citizenship of Canada as well, he was ordinarily residing in Jaipur (India).
18. Having held that Sudarshan Bhatia was ordinarily residing in Jaipur, time is now ripe to evaluate the contentions of Mr. Bhandari with regard to the non-maintain-ability of the petition before the learned District Judge in the context of the relevant provisions of the Act of 1925.
19. Section 5(2) of the Act states that succession to the movable property of a person is regulated by the law of the country in which such person had his domicile at the time of his death. Sub-section (2) of Section 5 which deals with regulation of succession to the movable property of a person deceased is reproduced below:
5. Law regulating succession to deceased persons' immovable and movable property, respectively.-
(1)...
(2) Succession to the movable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death.
20. As per the provisions contained in Section 6 a person can have only one domicile for the purpose of succession of his movable property. The domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled; or, if he is a posthumous child, in the country in which his father was domiciled at the time of the father's death as would be made out from provisions contained in Section 7 of the Act. Domicile of origin prevails until a new domicile has been acquired, as per the provisions contained in Section 9 of the Act. A man is stated to have acquired new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin, as would be made out from the provisions contained in Section 10 of the Act. Section 371 of the Act pertaining to the Court having jurisdiction to grant certificate, reads as follows:
371. Court having jurisdiction to grant certificate.-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.
21. A perusal of the provisions contained in Section 371 of the Act as reproduced above, would clearly manifest that the Distt. Judge within whose jurisdiction the deceased ordinarily resided would have Jurisdiction to entertain and try the petition Under Section 372 of the Act, It is 'ordinary residence' of the deceased which determines the jurisdiction and not Ms citizenship. Even though, therefore, Sudarshan Bhatla might be a citizen of Canada also, but his ordinary place of residence being Jaipur, the District Judge, Jaipur City, In our considered view, had jurisdiction to entertain and try petition Under Section 372 of the Act for grant of succession certificate. In so far as Section 5 of the Act Is concerned, the same only deals with the law which would regulate succession to deceased persons' movable and Immovable properties. The succession to movable property is regulated by law of the country in which such a person has his domicile. A person, as per the provisions contained in Section 6, can have only one domicile and that would be the country in which his father was domiciled at the time of father's death. This domicile of origin prevails until a new domicile has been acquired and a man is said to have acquired new domicile by taking up his fixed habitation in the country which is not that of his domicile of origin. A combined reading of the provisions relied upon by Mr. Bhandari would, at the most, make it a case that if a person might have a foreign domicile, it is law of the country of domicile which will govern the grant of succession certificate. We have repeatedly put to Mr. Bhandari as to what is the law with regard to succession in Germany and as to whether the same at all is at variance with the law of succession in India. No reply whatsoever is coming forth. In order to take the point raised by Mr, Bhandari to its logical ends, it was necessary to plead and prove the law of succession in Germany and further that the same would be at variance with the law in India. It had further to be proved that widow and daughter, as per the law of Germany, would not be entitled to succeed to the estate of their husband and father respectively. That apart, it is proved to the hilt that Sudarshan Bhatia was ordinarily residing in Jaipur where he was doing business as well. It was nowhere case of the appellants that Sudarshan Bhatia who was admittedly an Indian had abandoned his place of origin or had relinguished Indian citizenship or the same stood obliterated on account of his obtaining Canadian citizenship. None of the provisions relied upon by Mr. Bhandari, in our considered view, would have the effect of washing away the domicile of Sudershan Bhatia which, as mentioned above, was admittedly India simply on account of his obtaining Canadian citizenship also.
22. The contention of Mr. Bhandari with regard to the District Judge, Jaipur City having no jurisdiction to entertain and try the petition Under Sec tion 372 of the Act is repelled. We further hold that even though there is sufficient evidence for returning the finding that Sudarshan Bhatia ordinarily resided in Jaipur but the said evidence did not come in the context of issue as to whether Sudarshan Bhatia was ordinarily residing in Jaipur. We have no doubt in our mind that if perhaps jurisdiction point might have been raised, the respondents might have been able to collect far more evidence on this issue but that as mentioned above, shall not make any difference in the case as there is sufficient evidence which includes even admissions on behalf of the appellants that Sudarshan Bhatia was ordinarily residing in Jaipur.
23. Mr. Bhandari then contends that Poonam Bhatia was not the legally wedded wife of Sudarshan Bhatia and the child said to have been born out of the union between the two, i.e. Sudarshan and Poonam bhatia was at the most an illegitimate child. He states that even though in the first instance when the application was filed the factum of valid marriage between Sudarshan Bhatia and Poonam Bhatia was admitted and even though an attempt on the part of the appellants to wriggle out of that admission by moving an application for amendment of the written statement was dismissed, which order attained finality even on revision filed by the appellants, the appellants would be well within their rights to retract from the said admission or show the same to have been erroneously made. He thus contends that Poonam Bhatia was not the legally wedded wife of Sudarshan Bhatia and was thus not entitled to claim his assets, be it movable or immovable.
24. For his proposition that the appellants could retract from the admission made by them in pleadings, Mr. Bhandari relies upon judgment of a Single Bench of Punjab and Haryana High Court in Shishpal v. Vikram 1991 (1) CCC 605 and a judgment of Supreme Court in Balraj Taneja v. Sunil madan .
25. In Shisnpal v. Vikram (supra) it was held that the Court is not bound to pass a decree on the basis of mere admission of claim by the defendant and that the Court has a duty to see whether the plaintiff is entitled under law to get the relief sought for. Facts of the case aforesaid reveal that the plaintiff had filed a suit against paternal uncle for declaration of the title alleging that they were looking after him arid about six months prior to the filing of the suit, Gyani Rarn gave the property to them under a family settlement. In that suit, Gyani ram appeared and Filed a written statement acknowledging the transfer of the property in favour of the plaintiffs nd also got a statement recorded. Thereafter, he died before passing of the decree. The grand son of Gyani Ram was impleaded as his legal representative and when he wanted to file a separate written statement, it was objected to by the plaintiffs on the ground that the legal representatives could take different plea from that of the original defendant who died during the pendency of the suit. That objection was upheld by the trial Court. Nevertheless the trial Court dismissed the suit on the ground that the question of family settlement did not arise because the plaintiffs had no right, title or interest in the suit property during the life time of Gyani Ram, Aggrieved by the same, the plaintiffs preferred an appeal unsuccessfully. In the second appeal filed by them, it was held that it was a well known doctrine of law that the consent of the parties could not over ride the statute and further the Court ought not to pass a decree mechanically based on admission or consent of the parties, e are of the confirmed view that the judicial precedent relied upon by Mr, Bhandari has no parity whatsoever, with the facts of the case in hand. The present case is one of admission in pleadings. It is not only that in the written statement filed on behalf of the appellant that factum of marriage between Sudarshan Bhatia and Poonam Bhatia was admitted but the same was also admitted by Surendra Bhatia himself in the deposition made by him. The attempt of the appellant to withdraw admission in pleadings by moving an application for amendment of the written statement under Order 6 Rule 17 CPC proved abortive. This application was dismissed and the order passed by the Trial Judge attained finality as revision filed against the said order was dismissed by this Court. Mr. Bhandari was asked to show any precedent where a litigant might have been able to retract from the admission in pleadings in his attempt to show that the same was erroneous. He has not been able to do so. We are of the view that 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.
26. In Balraj Taneja v. Sunii Madan (supra) it was held that if the plaint itself indicates existence of disputed questions of fact involved in the case, the Court must not pass judgment without requiring the plaintift to prove the fact so as to settle the facts in controversy. It was further held that for non filing of the written statement the suit could not be automatically decreed and just as the court ought not to act blindly or mechanically upon admission of the fact made by defendant in his written statement, it ought not to pass judgment merely because written statement has not been filed and that the court has to be cautious and only on being satisfied that there is no fact which needs to be proved, despite deemed admission, it should proceed to pass judgment. All that can be made out from the judicial precedent relied upon by Mr. Bhandari is that simply because no written statement has been filed but the plaint indicates existence of disputed questions fact, whether the plaintiff has to be put to prove the facts stated in the plaint. The court also cannot pass a decree blindly or mechanically upon admission of a fact made by the defendant in his written statement. In the present case, the Court did not blindly or mechanically act upon the admissions made by the appellant in the pleadings and depositions made by him. It considered evidence in its entirety inclusive of admissions made by the appellant. It is not from admissions alone that the Court returned the finding with regard to the valid marriage between Sudarshan Bhatia and Poonam Bhatia.
27. In Banarsi Das v. Kanshi Ram it was held that admissions made on facts are binding even though the same may not be binding in so far as the same relate to the question of law.
28. In Modi Spinning and Weaving Mills Co. Ltd. and Anr. v. Ladha Ram and Ors. it was held that the parties cannot be allowed to change completely the case and substitute an entirely different and new case and if such amendments are allowed the opposing party would irretrievably be prejudiced by being denied opportunity of extracting admission from the parties.
29. In Heera Lal v. Kalyan Mal and Ors. where defendants had admitted some properties as joint family property in the written statement and had shown it only with regard to other properties as exclusively belonging to them and had subsequently sought amendment in the written statement thereby withdrawing the earlier admission with regard to the properties having been admitted to be joint, it was held that if such amendment would displaced the plaintiff's case and his right to get preliminary partition, the amendment would not be allowed.
30. Before we may part with this aspect of the case, we would like to mention that application for amendment came to be filed after consideration evidence had been recorded and the application dated 9.12,1998 which is available on the records makes a mention of facts such as Poonam Bhatia being wife of Priya Veer Kapoor etc. If while seeking amendment of written statement the plea with regard to withdrawing from admission did not succeed, the same cannot succeed after culmination of the proceedings resulting into decree in favour of Poonam Bhatia and her daughter.
31. Assuming however, that appellant could retract from the admission made by him in the pleadings and deposition made by him, we are of the view that the circumstances and documents relied upon by him for the said purpose would still not advance his case.
32. In his endeavour to show that sufficient evidence is available on the records of the case to show that Poonam Bhatia was not the legally married wife of Sudarshan Bhatia and therefore, admissions made by the appellant could be withdrawn, Mr. Bhandari refers to Ex. 1/1 the death certificate got issued from Germany. Sudarshan Bhatia is stated to be un-married as per the recitals made in the death certificate. Mr. Bhandari also relies upon the passport of Poonam Bhatia wherein she has been shown to be wife of one Priya Veer Kapoor as she had been travelling on the said passport and had been making declaration that she is the wife of Priya Veer Kapoor for obtaining documents of travelling. Mr. Bhandari also relies upon Ex.16 the order of the court in the case of Poonam Kapoor v. Priya Veer Kapoor on the application filed by Poonam Kapoor against her ex-husband for maintenance on the basis of being wife of Priya Veer Kapoor. He also relies upon air tickets which bear the name of Poonam Kapoor and not Poonam Bhatia. He also relies upon the passport of Sudarshan Bhatia stating him to be a Canadian citizen from which he wanted to point out that Sudarshan Bhatia had not visited India during the period when his marriage was stated to have taken place and therefore, on 25.5.1989 it could not be said that any marriage had taken place. He also contends that mother of Poonam was a muslim lady in the year 1940 and therefore, marriage of Poonam with a Hindi was void.
33. We have given our anxious thoughts to the contentions of the learned counsel, as noted above, but find the same to be of no substance whatsoever. Even though in Ex. 1/1, which is the death certificate issued from Germany, Sudarshan Bhatia has been shown to be unmarried but the reasons of his being shown un- married are not far to seek. It is admitted that Surendra Bhatia appellant alone had reached Germany on hearing news of death of Sudarshan Bhatia. Surendra Bhatia is the one who has propounded the Will and he is the one who had obtained the death certificate. The concerned authorities at Germany would not know of their own as to whether Sudarshan Bhatia was married or not. This information came to them and was thus incorporated in the death certificate Ex. 1/1 on being given by none other than Surendra Bhatia, the appellant. It is admitted position that Poonam Bhatia, before her marriage with Sudarshan Bhatia, was married with Priya Veer Kapoor. This marriage was dissolved by a decree of divorce is also the admitted position. The first husband of Poonam Bhatia was residing in London and if Poonam Bhatia had made a passport at that time when she was legally wedded wife of Priya Veer Kapoor and had not changed the same from Poonam Kapoor to Poonam Bhatia after her marriage with Sudarshan Bhatia, it cannot be said that she was not the legally wedded wife of Sudarshan Bhatia. The hassles and.procedural wrangles in changing the passport are known to all. It is possible that with a view to avoid harassment before the passport authorities she might have continued to show herself as Poonam Kapoor. It is also possible that before she could decide to get her name changed in the passport, Sudarshan Bhatia died. What we have said above also applies with regard to the air tickets of Poonam. So far as passport of Sudarshan bhatia is concerned, learned counsel for the appellant has not been able to show that on 25.12.1985 Sudarshan Bhatia was in Germany. That apart, as mentioned above, marriage between Sudarshan Bhatia and Poonam Bhatia which was solemnised on 25.12.1985 is admitted. In so far as Ex. 16 granting maintenance to Poonam Bhatia is concerned, it may be mentioned that the said order was passed on 25.5.1985. The marriage between Sudarshan Bhatia and Poonam Bhatia was solemnised on 25.12.1985. The petition for grant of maintenance was filed far before she was married with Sudarshan Bhatia. Even though the proceedings for maintenance might have culminated after her marriage with Sudarshan Bhatia but once it is proved that the said proceedings were initiated at the time when marriage between Priya Veer Kapoor and Poonam subsisted, it cannot be said that Poonam Bhatia was not married to Sudarshan Bhatia. Appellants have not brought any evidence on record which may show that Poonam Bhatia had received maintenance with regard to the period after she was married with Sudarshan Bhatia, from Priya Veer Kapoor.
34. The contention of Mr. Bhandari that marriage between Sudarshan Bhatia and Poonam Bhatia was void as mother of Poonam, in 1940, was a Muslim lady, has no substance whatsoever. Even though no pleadings were made nor any proof brought on the record to show that mother of Poonam was a Muslim lady at one point of time but assuming the same to be correct, it may be mentioned that the Hindus, Buddhists, Jains and Sikhs have been defined in Explanations (a), (b) and (c) of Section 2 of the Hindu Marriage act, 1955. The said definition reads as follows:
Explanation - The following persons are Hindus, Buddhists, Jains or Sikhs by religion, as the case may be:-
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and
(c) any person who is a convert or re-convert to the Hindu, Buddhist, jaina or Sikh religion.
35. As per Clause (b) reproduced above, even if one of the parents of a child is Hindu, Buddhist, Jaina or Sikh, he would be a Hindu for the purpose of Hindu Marriage act, 1955 and the marriage solemnised by such child would be considered to be that of a Hindu. Irrespective of the fact, therefore, that mother of Poonam Bhatia was a Muslim lady, her marriage with father of Poonam Bhatia was valid and so will be with regard to the marriage of poonam Bhatia with Sudarshan Bhatia.
36. In so far as due execution of the Will and the same being surrounded by suspicious circumstances is concerned, it is first urged by Mr. Bhandari that once suspicions circumstances were not mentioned in the petition nor in the replication that might have been filed by Poonam Bhatia nor any issue was claimed, the same could not be looked into at all. This contention of the learned counsel needs to be summarily rejected as suffice it to say that 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. In so far as petition under Section 372 of the Act is concerned, there could be no mention of suspicious circumstances as Poonam Bhatia would not know that some one would set up a Will in defence to her claim.
37. In all fairness to Mr. Bhandari we must state that in his endeavour to show that the Will is not surrounded by suspicious circumstances or that strained relations between Sudarshan bhatia and Poonam Bhatia have not been taken into consideration, which is itself would have shown reasons for Sudarshan Bhatia to dispel natural succession and divest his wife of the properties owned by him, he has placed reliance on Madhukar D. Shende v. Tarabai Aba Shedage , Sridevi and Ors. v. Jayaraja Shetty and Ors. , Smt. Indu Bala Bose and Ors. v. Mahindra Chandra Bose and Anr. , Crystal Developers v. Smt. Asha Lata Ghosh and Daulat Ram and Ors. v. Sodha and Ors. . We may only mention that all these judicial precedents are on their own peculiar facts and have no parity with the facts of the case in hand. We are further of the view that whether Will is surrounded by suspicious circumstances or not depends upon facts and circumstances of each case and in the present case, it is proved to the hilt that the Will is indeed surrounded by suspicious circumstances.
38. The next contention of Mr, Bhandari is that relations between Sudarshan Bhatia and Poonam Bhatia were far from being cordial and were actually strained and this fact has not been taken into consideration either by the learned district Judge or by the learned Single Judge of this Court. The contention of Mr. Bhandari appears to be factually incorrect. The learned Single Judge had averred to this part of controversy and while rejecting the contention observed that the appellant had himself admitted that Poonam Bhatia was married to Sudarshan Bhatia and even a child was also born out of the wedlock and further that he clearly admitted that Poonam Bhatia was participating in his business at Jaipur. He also admitted that Poonam Bhatia was the Managing Director of the firm run by Sudarshan Bhatia and he also admitted that Sudarshan Bhatia had purchased number of properties in the name of his wife Poonam Bhatia at various places. The admissions made by none other than Surendra Bhatia, as mentioned above, would clearly manifest that husband and wife had cordial relations as otherwise there was no question for Sudarshan Bhatia to permit participation of his wife in the business that he was carrying and purchasing number of properties in her name. Nothing else at all is required to prove that there were no strained relations between the husband and the wife. The mere fact that Poonam Bhatia did not go to Germany when Sudarshan Bhatia died, has been explained by her that Surendra Bhatia stealthy went to Germany on receiving information with regard to death of Sudarshan Bhatia and intentionally did not inform her. That explanation given by Poonam Bhatia for her not going to Germany when her husband died appears to be probable on facts and circumstances of the present case.
39. Learned trial court gave in details eighteen suspicious circumstances surrounding the Will. Learned single Judge, however, took into consideration some of such circumstances and made elaborate discussion thereon. There will be no need to reiterate the reasons given by the learned Single Judge surrounding the Will as nothing based on such observations of the learned Single Judge has been urged before us. Suffice it however to say that the learned Single Judge observed that husband and wife had cordial relations. Poonam Bhatia had accompanied her husband when they had gone to Germany in 1986-87 when he was admitted in the hospital. Poonam Bhatia had looked after him. It was a case of second marriage for both of them. Both Sudarshan Bhatia and Poonam Bhatia were divorcees. Right up to the end, Poonam Bhatia was the Managing Director of the firm run by Sudarshan Bhatia had purchased number of properties in the name of Poonam Bhatia. Such being relations between the husband and wife, there does not appear to be any reason why natural succession was dispelled and Poonam Bhatia was deprived of the properties and even of such properties which were purchased by Sudarshan Bhatia on her name. Learned Single Judge further observed that in fact, Surendra Bhatia beneficiary of the Will was not having any brotherly relations with Sudarshan Bhatia. The appellant was also living mostly out of India. He would not even know address of the deceased in Germany. He would even not know as to whether his brother had owned the house at Germany or it was a rented house. The said circumstances also proved that two brothers were not having cordial relations. Learned Single Judge also referred to two attesting witnesses of the Will one of whom stated that the testator was hale and hearty which fact was also belied even from the recitals made in the Will. The Will was signed in the hospital itself but no certificate was obtained from the doctor of the hospital. The Will was either computer typed or typed on electronic type-writer and the same was not possible if the Will was executed in the hospital itself. Learned Single Judge also referred to some of the properties which were in the name of Poonam Bhatia and which too formed part of the Will going to the share of Surendra Bhatia. This too was taken to be a suspicious circumstance as there was no occasion for executing the will with regard to the properties that stood in the name of Poonam Bhatia. Learned Single Judge also referred to the statements of the attesting witnesses and held that the depositions made by them did not inspire any confidence in executing the Will. Added to these variety of circumstances, another circumstance was brought to our notice by the learned counsel for the respondents, he states that a reading of the Will in itself would make it to be a totally made up document. Surendra Bhatia with a view to make it look like a natural document and true disposition of properties, as if the testament had been made by Sudarshan Bhatia, got mentioned in the Will that he would be owner of half of the properties left by Sudarshan Bhatia whereas the remaining half share would go to his daughter Smita. In the Will, however, he arrogate to himself the major immovable properties which were exclusively in the name of Sudershan Bhatia and it is only with regard to the remaining properties which were joint or disputed that it was mentioned in the Will that the same shall belong to Sudershan Bhatia and Smita in half share. The contention appears to be well made. The Will Ex.a.l reads as follows:
1 Surendra Bhatia saying in this hospital in Frankfurt in a critical stage of health. I do'nt think I will make it. I am dying. In the event of my death, I want everyone to know that I have been virtually tortured to this stage of health by my wife, Poonam. My only thought goes to my daughter, who is of a tender age. I would prefer her to be taken away from the influence of her mother the only other person who can be her guardian after my death is my brother Surinder.
The Note that I am dictating shall be treated as my Will, and I appoint Surinder as the Executor. He will collect and manage in such manner as he thinks best, all my assets and liabilities. 1 give over to him all my shares in Jaipur Oriental Teppich and my property at Mahar House in Jaipur He will be the absolute owner thereof after my death. Out of the rest of my properties and assets, one half shall go to my brother Surinder absolutely, and the remaining half shall vest in him as a trustee in trust for the benefit of my said daughter Smita which shall be handed over to her on her attaining twenty one years of age. if in case she dies before reaching that age, the entire properties and assets shall go towards charity to be decided by my aforesaid brother.
In the meantime, Surinder will spend a suitable sum for the proper unkeep of my daughter, who may be admitted to some good boarding school as and when she is more than five or six years of age.
6000 Frankfurt/M., 17th of April, 1989 Sd/-
Sudershan K. Bhatia Sd/-
Dr. Ury Fehr (witness) Sd/- Brigitte Georke (Witness)
40. The recitals in the Will as reproduced above would clearly manifest that Sudershan Bhatia is stated to have given all his shares in Jaipur Teppich and his property at Mahar House in Jaipur to Surendra Bhatia beneficiary of the Will exclusively. He was to be the absolute owner thereof after the death of Sudershan Bhatia. It is only rest of the properties and assets that half share thereof was to go to the beneficiary of the Will i.e. Surendra Bhatia and remaining was to vest in him as a trustee for the benefit of his daughter Smita which was to be handed over to her on her attaining majority. In case of her death, the entire properties and assets were to go to charity in the manner that might be decided by none other than, once again, Surendra Bhatia only. We accept the contention of the learned counsel for the respondents that division of properties which was made to appear to look as if it was half in favour of Surendra Bhatia and half in favour of Smita actually had made Surendra Bhatia the owner of major properties. It is only the remaining properties which were to be divided half and half. This too, appears to us to be a suspicious circumstance.
41. In so far as appeal preferred by Swarn Anand being D.B. Special Appeal (Civil) No. 105/2001 is concerned, it may be noticed at the very outset that Swarn Anand endeavoured to file written statement for the first, time in 1997. This written statement was refused by the trial court to be put on records. Constrained, Swarn Anand filed S.B. Civil Revision Petition No. 1225/1999 in this Court which was dismissed on 3.11.1999. The net result of not permitting Swarn Anand to place on record her written statement is that there is no contest between the parties with regard to the ancestral nature of the properties, there was no issue either as to whether the properties, even though exclusively in the name of Sudershan Bhatia or the properties that were purchased by him on the name of Poonam Bhatia, were all derived from the joint family properties that might have been owned at one point of time by father of Swarn Anand and her two brothers Surendra and Sudershan Bhatia. Ms. Naina Saraf, however, on the basis of an application for amendment made by Poonam herself pleading the properties to be ancestral and from some other material on the records, wants this court to hold that all properties subject matter of Will were derived or made from the ancestral properties of the parties. It is difficult to accept the contention of the learned counsel as to the nature of properties being coparcenary or a joint Hindu property has to be proved by evidence. It is too well settled that even admission that a particular property is ancestral or co-parcenary would not be enough. That apart, as to how a married daughter would be a co-parcener and would have a share in the co-parcenary property, has not been shown to this Court. Assuming therefore, that if not all, some of the properties subject matter of Will were made by Sudershan Bhatia from the funds that he received from the joint hindu family properties, Swarn Anand would not yet succeed as she does not appear to be a co-parcener at all. General rule of succession is governed by Section 8 of the Hindu Succession Act, 1956. Property of a male Hindu dying instate devolves according to the provisions contained in Section 8, firstly upon the heirs, being the relatives specified in class I of the Schedule. Admittedly, Swarn Anand is not a preferred heir over widow and daughter of the deceased. If the property was to be coparcenary, succession would be governed by Section 6 of the Act of 1956. Interest of a male Hindu devolves by survivorship upon the surviving members of the coparcenary. As to how Swarn Anand, a married daughter of late Chunni Lal Bhatia, would be a coparcener, no reply is at all forthcoming. Andhra Pradesh by adding Chapter-IIA and adding Section 29-A has provided equal rights to daughter in coparcenary property but the same is not true in so far as the State of Rajasthan is concerned. Addition of a separate Chapter in Hindu Succession Act by the State Amendment clearly points out that a daughter is not entitled to succeed to such a property as has been done by Andhra Pradesh by inserting Chapter-IIA and adding Section 29A and 29B in the Hindu Succession Act, 1956. That apart, once the plea of Ms. Naina Saraf does not go beyond properties styled to be ancestral having been acquired by C.L. Bhatia and not father of C.L. Bhatia, how the same could be ancestral in the hands of Sudershan Bhatia, is not understandable. Ms. Naina Saraf has been repeatedly asked to explain as to how the properties owned by C.L. Bhatia could be ancestral in the hands of Sudershan Bhatia but no satisfactory reply at all is coming forth.
42. Before we may part with the appeal preferred by Swarn Anand, we would like to mention that the learned Single Judge dismissed the appeal preferred by her by observing that nothing was brought to the notice of the Court that the properties in question for which succession certificate had been sought Under Section 372 of the Indian Succession act were ancestral in nature. We have, however, considered the contention of the learned counsel and given a finding that even though the properties in dispute were ancestral in nature, Swarn Anand would have no right to succeed. We further hold that Swam 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 had 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, it is for good reasons it appears to this Court that the trial Court did not permit Swarn Anand to file the written statement which order was confirmed by this Court in revision petition filed by her. The very filing of the written statement was with an ulterior purpose and the same had rightly been taken off the records. Nothing at all has been urged before us that the order not permitting Swarn Bhatia to file written statement was not justified nor could it possibly be argued after dismissal of the revision petition.
43. Ms. Naina Saraf, however, for the proposition advanced by her that Swarn Anand shall also be entitled to the properties subject matter of Will, relied upon a judgment of the Supreme Court in Parshotam Singh (dead) through LRs. v. Harbans Kaur and Anr. (1996) 8 Supreme 797. Facts of the said case reveal that one Mukhtiar Singh was the original owner of the property. He died in 1966 leaving behind him his son Harsukhjit Singh and his widow Pritam Kaur. Pritam Kaur died in 1971. Harsukhjit Singh had two sons, viz., Parshotam Singh and Lakhmir Singh and the appellants were the heirs of Parshotam Singh. The appellant- plaintiffs had filed a suit for joint possession and declaration that they are entitled to half the share in the property succeeded by Harsukhjit Singh. Trial Court decreed the suit which on appeal was reversed. High Court dismissed the appeal on the ground of delay. The appellate Court had recorded finding of fact that Harsukhjit Singh succeeded to not only the property of his grand father but also a part of the property held by his mother Pritam Kaur. Under these circumstances, the property which he inherited from his mother Pritam Kaur would be his self acquired property but the property succeeded through his grand father Bakhtawar Singh would assume the character of joint property. The appellate court had recorded a finding that since Harsukhjit Singh had blended his private property and the joint family property, it assumed the character of self-acquired property and therefore, it was not particle between the appellants and the respondents. The view taken by the High Court was held to be erroneous and it was held that though Harsukhjit Singh had blended the joint family property with his private property inherited from his mother, the joint family property still remains to be the joint family property until it is divided between the heirs of Harsukhjit Singh. The appellants being the heirs of the father of the respondents Parshotam Singh were held entitled to the half share in the property succeeded by harsukhjit Singh from his grand father and that rest of the half share would go to the respondents.
44. This judicial precedent does not appear to be of any help to the appellant Swarn Anand. In fact, the judgment runs counter to the claim projected by the appellant. The properties would be ancestral if the same were inherited by Chunni Lal Bhatia from his father and then and then alone it would be styled to be ancestral property in the hands of appellant Swarn Anand, Further it was not a case of married daughter laying claim to the ancestral property.
45. Ms. Naina Saraf has supported the contention raised by Mr. Bhandari with regard to the trial court having no jurisdiction to entertain and try the petition Under Section 372 of the Act and in support of the contention has relied upon some judicial precedents in Smt. Jeewanti Pandey v. Kishan Chandra Pandey , a Single Bench decision of this Court in Seva Ram v. Smt. Saudine Jawahar 1986 RLW 496, Single Bench decision of Madras High Court In Re. Mohanaprakasam .
46. The facts of Smt. Jeewanti Pandey (supra) reveal that the parties to the marriage were belonging to a village within the territorial jurisdiction of District Judge, Almora and had married in Delhi and were residing there. The petition for nullity of marriage under Section 12 was filed in the court of the District Judge, Almora and it was held that the District Judge would have no jurisdiction to try the petition.
47. In Seva Ram (supra) the question for decision was as to whether District Judge, Udaipur would have jurisdiction to entertain application for grant of succession certificate in respect of the estate of the deceased Jawahar Hingorani who at the time of death was posted as Principal, Government College at Jaisalmer and his wife had filed petition for grant of succession certificate before the learned District Judge, Udaipur. It was held that the petition should be filed at the place where the deceased was ordinarily residing and where his home was located and where part of the property was situated. In Mohanaprakasam (supra) it was held that if the deceased had a fixed place of residence elsewhere, the fact that his properties are situated within the jurisdiction of the court to which the application is made, would not confer jurisdiction on the court within whose jurisdiction the properties are situated.
48. These judicial precedents in view of our finding that Sudershan Bhatia was ordinarily residing at Jaipur can be of no solace and help to the appellant Swarn Anand.
49. Ms. Naina Saraf also relies upon a decision of Single Bench of Madras High Court in Saraswathi Ammal v. R. Subbiar and Ors. AIR 1914 Madras 669 (1) in which it was held that barring few exceptional cases in which on facts admitted by both parties the Court could determine the right to the certificate, some enquiry ought to be held even in cases in which many facts are admitted by both sides. We are at a loss to understand as to how this judgment is at all relevant to the facts of the present case.
50. From the discussion made above, we find that both these appeals are totally devoid of merit. We have made elaborate discussion on all the points as lengthy and elaborate arguments were addressed before this Court even though but for competence of the court at Jaipur to entertain and try the petition, all other points are only questions of fact and could not be gone into In second appeal. The findings on these questions of fact are concurrent. Second appeal on the questions of fact alone is not permissible. Learned District Judge and the learned Single Judge of this Court have threadbare discussed the entire evidence and on the basis thereof, returned findings on questions of fact by elaborate and lengthy Judgments, There is absolutely no scope for interfering In the said findings of fact.
51. We are inclined to accept the contention of the learned counsel for the respondents Poonam Bhatia and her daughter that they have been embroilled in wholly unethical litigation spread over a period of more than sixteen years. In the first instance, Swarn Anand did not even choose to contest the petition. As. mentioned above, it was at the fag end of the trial when she and her brother Surendra Bhatia realised that the Will propounded by the latter may not be accepted that another dimension was sought to be added to contest the rightful claim of Poonam Bhatia and her daughter. The matter was contested on all conceivable grounds under the sun, right or wrong legal or illegal and stands were shifted depending upon situation of the case. Marriage between Sudershan Bhatia and Poonam Bhatia, and Smita having been born out of the wedlock was not disputed initially. When however, it transpired that the Will might not stand the scrutiny of law, this relationship was sought to be disputed. A totally made up story of strained relations between Poonam Bhatia and Sudershan Bhatia was coined. The ease was also sought to be contested on a forged and concocted Will. When it still appeared that Poonam Bhatia and her daughter would succeed in the claim made by them, marriage between Sudershan and Poonam Bhatia was styled to be void and the child begotten from the union of the two, was styled to be illegitimate. When still nothing appeared to come to rescue of the appellant, it was stated that the mother of Poonam Bhatia was a muslim lady and when it further transpired that even that might not prove enough to defend the cause of Poonam Bhatia and her daughter, competence of the court to entertain and try the petition was added at the fag end of the second appeal. Every endeavour was made to have this case adjourned from time to time as is made out from the records of the case. When the arguments were to begin in the appeals, counsel appearing for the appellants sought postponement of the matter on the ground that yet another sister of the appellants has filed a separate suit for partition claiming the properties to Be ancestral and this Court should await decision of the said suit. It is, however, surprising that the learned counsel appearing for the appellants themselves stated that the findings recorded by the learned District Judge in th present case would not be binding upon the civil court as proceedings under the Indian Succession Act claiming succession certificate are summary in nature. To the question as to how as per their own showing the findings recorded by us would have any bearing upon the civil suit, the same being summary as per their own stand, and therefore, there will be no necessity at all to adjourn the case awaiting decision of the civil suit, no worthwhile reply whatsoever came forward. An application was made and it was urged that the daughter of Poonam Bhatia had attained majority and has not chosen to discharge her guardian, therefore, appeals against her should be allowed. This argument had been withdrawn when Smita d/o Poonam Bhatia who was produced in court stated that she had a continuous cause of action and would like to contest appeals filed on behalf of the appellants.
52. Every citizen has a right to knock at the doors of every court in the country. The courts right from Mussifal to the Supreme Court are duty bound to entertain and determine rights of the parties. Every litigant has right to protect his right in any suit or proceedings that might be instituted against him/her. But should this right be allowed to be abused by coming up with made up cause of action or defence on trumped up grounds. The only answer to this question can be that the litigants indulging into such unethical litigation should be discouraged. We are thus constrained in the facts and circumstances of the case mentioned above to dismiss these appeals with costs. Whereas Appeal No.02134/2000 has been filed by Swarn Anand, Appeal No.02128 has been filed by Surendra Bhatia against the order passed by the learned Single Judge of this Court dated 29.8.2000 (in S.B. Civil Misc. Appeal Nos. 245 and 219/2000) wherein it was held that ad valorum court fee shall be payable on the appeals preferred by the appellants against the order of the Distt, Judge, dated 6.12.1999. No arguments at all have been addressed in challenging the findings recorded in the order dated 29.8.2000. The said appeals No.2134/2000 and 02128/2000 are also dismissed.
53. By this common order, we have thus disposed of 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 No.02134/2000 and 2128/2000 filed by Swarn Anand and Surendra Bhatia respectively which pertain to payment of ad valorum court fees,
54. Before we may part with this order, we would like to mention that the judgment was reserved in this case on 6.9.2005. On 13.9.2005 we received a letter from Surendra Bhatia requiring us to release this case from this Court. We have dealt with that letter separately.
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