In the Matter of Estates of Daisy Myrtle Khan

Sunil Ambwani, J.—The Testamentary Suit No. 3 of 2006 filed by Shri Ritesh Sirkar son of Shri A.S.K. Sirkar, resident of 7 7, N.K. Mukherjee Road, Allahabad seeksgrant of probate of the property of late Daisy Myrtel Khan (the deceased) widow of late Munawwar Khan, resident of C13 3, Paper Mili Golony, Lucknow. She died on 27.7.2004. The plaintiff has set up a will dated 27.11.1995 executed by her with her free will, consent and in sound and disposing mind. The suit is ontested by her daughter Ms. Shamim Khan on the ground that a few days later the deceased executed the will dated 15.12.1995, which is the last will of the deceased.

The Testamentary Case No. 14 of 2006 is filed by M/s Shamim Khan claiming ''Letters of Administration'', on the basis of the later will dated 15.12.1995 executed by the deceased.

After exchange of pleadings, following issues were framed on 27.11.2006:

"(1) Does the plaintiff Ritesh Sirkar in Testamentary Suit No. 3 of 2006 prove dueexecution of the will dated 27.11.1995 executed by Daisy Myrtle Khan with her free will, consent and sound and disposing mind.

(2) Does Shamim Khan plaintiff in Testamentary Case No. 14 of 2006 prove that the will dated 27.11.1995 filed by Sri Ritesh Sircar was obtained by misre presentation and fraud.

(3) Does Ms. Shamim Khan prove due execution of the will dated 15.12.1995 executed by Daisy Myrtle Khan (deceased) with her free will, consent and sound and disposing mind.

(4) Does Sri Ritesh Sirkar the plaintiff in Testamentary Case No. 3 of 2006 prove with the will dated 15.12.1995 filed by Ms. Shamim Khan as forged and fictitious will.

(5) The relief to which either of the plaintiffs are entitled.

Issue No. 3 was refrained on 7.9.2007.

Parties have filed documentary evidence. On the basis of the documentary evidence the following preliminary issue was framed by order dated 7.9.2007:

"(6) Whether in view of the fact that the only property left by the deceased namely 15th share in House Nos. 77 and 8 9, N.K. Mukherjee Road, Allahabad including the land on which the said houses are constructed being Nazul Plot No. 2, Rajapur Bandhwa, Allahabad has been converted into free hold land by the State Government vide ''deed of free hold'' dated 28.9.2005, registered on 29.9.2005, the Testamentary Suits for probate filed by the respective parties for execution in pursuance of the respective wills dated 27.11.1995 and 15.12.1995areliabletobedismissed."

It is admitted that the deceased had executed a registered power of attorney dated 7.12.1995 infavourof herson Mr. Cyril lqbal Khan, both toacquirefree hold rights on the land as also to sell, enter into agreement, execute and discharge the property, vice paragraph 4 and 5 of the document.

Mr. Cyril lqbal Khan exercised the rights given to him by her mother while she was alive and executed a deed of nomination in favour of Shri A.S.K. Sirkar, the father of the plaintiff and an agreement to sell after receiving Rs. 3,95,000 from him as her attorney. It is alleged that the deceased also executed the disputed will in favour of Shri Ritesh Sirkar, son of Shri A.S.K. Sirkar, the plaintiff in Suit No. 3 of 2006 on 27.11.1995.

It is notdenied that the portion of Plot No. 2, Rajapur Bandhwa, Allahabad the house No. 7 7 and the house No. 8 9, N.K. Mukherjee Road, Allahabad constructed on the said plot is the only property left by the deceased, described in the will, and the schedule appended to both the cases. There is no other property left to be administered.

After the death of the deceased Shri A.S.K. Sirkar filed a Civil Suit No. 44 of 1999 for specific performance of contract. The suit was decreed ex parte on 7.8.2004. On that date shewas not alive. She had died on 27.7.2004, a fewdays before the suit was decided. The paintiff did bring her heirs on record and thus dccree was a nullity. Shri A S.K. Girkar had also put the deed of nominatipn of obtaining free hoid rights underthe policy of the State Government into motion and applied for free hold rights on the leased land on 3.12.1999 by depositing selfassessed amount of Rs. 37,355 . He deposited the remaining amount of Rs. 1,71,613 on its assessment by the Collector, Allahabad by treasury challan dated 8.9.2005 after the Icssee had died. By this registered deed executed by the Addl. District Magistrale (Nazul), Allahabad for and on behalf of the Governor of U.P. dated 28.9.2005 registered on 29.9.2005 the 1890 sq. mtr. land towards south of Nazul Plot No. 2A, ''Rajapur, Allahabad fallen to the share of Shri E.E. Outt in partition in the year 1957 and inherited bytier daughter Dr. (Mrs.) Daisy Myrtle Khan sister is share was conerte a into free hold land (area 355.61 sq. mir.) on the basis of nomination made by M/r. Cyril lqbal Khan attorney of Mrs. Daisy Myrtle Khan and that Mrs. Daisy Myrtle Khan lost all her rights in the property.

It is contended that the Court will not grantletters of administration, when there is no property to be administered at all. It would be.futile and academic exercise to take evidence and decide about the yalidity of both the wills, and therefore the preliminary issue was framed.

Shri Dhananjay Prasad, learned Counsel for Shamim Khan, plaintiff in Testamentary Case No. 14 of 2006 submits that decree of pecific performance dated 7.8.2004 and the deed of free hold dated 28.9.2C05 is.also nuliity as on these dates Mrs. Daisy Myrtle Khan was not alive and that her power of attorney had come to an end, on her death on 27.7.2004. He has relied upon the judgment in Manager, Bettiah Estate v. Sri Shagwati Saran Smgh and others, AlR 1993 All 2 in submitting that the cnly issue, which reldte to the jurisdiction of the Court ortoar to the suit created by any law for the time being enforced may be decided as preliminary issue and that in Sarya Aaran Kapoor v. State of U.P. and others, 2007 (4) ADJ 63 (DB); 2007 (2) ESC 1019 (All) (DB) it was held that the law has to be applied on the date, when the decision is made. He submits that the pendency of the application for free hold right do not create any legal right in favour of the applicant. ''

Shri Navin Sinha appearing for Shri Refesh Sirkar o''n the other hand submits that this Court need not decide these academic questions in the testamentary suit, when no specific relief can be granted foradministering the property as there was no property left to be administered. The Court may not take evidence and decide on the validity of the wills. He submits that in such circumstances the files have to be consigned to records with liberty to the parties to apply for proving the wills, if the necessity so arises.

Shri Navin Sinha further submits that deed of nomination by the power of attorney holder did not require any further act to be performed. The.nomination was a complete act by the lessee as soon as it was executed. Shri A.S.K. Sirkar, the father of Ritesh Sirkar paid Rs. 1,95,000 to the deceased for execution of sale deed and also for nomination, which was part of transaction of sale. The rights were crystallized on,the date, when the nomination was made and no further act was required to be done by the holder of the power of attorney. The death of the executor Mrs. Daisy Myrtle Khan on 27.7.2004 will not make any difference to the rights created under these documents.

The plot has been corwerted into free hold land by the State Government by a deed of transfer registered on 29.9.2005 in favour of Shri A.S.K. Sirkar giving him absolute ownership .without any conditions. Ms. Shamim Khan, plaintiff in Testamentary Case No. 14 of 2006 had filed objections to the grant of free hold rights, which were rejected. The deed of free hold was executed after the nomination was made by son of the deceased holding her power of attorney before her death. The nomination is a transaction in itself. It was the self assessed complete and that money was deposited before the death of Smt. Daisy Myrtle Khan. The deposit of balance amount after her death and the execution of deed of free hold in favour of Shri A.S.K. Sirkar would not be affected by the death of Mrs. Daisy Myrtle Khan.

The State Government has granted free hold rights of the estate left by the deceased to Shri A.S.K. Sirkar, the father of the applicant. There is no other property left by the deceased to be administered. It will, therefore, be futile to take evidence and to adjudicate upon the validity of the respective wills. With the grant of free hold rights to Shri A.S.K. Sirkar upon nomination made by the deceased in his favour through her son holding her power of attorney in her life time, the deceased was not left with any other property to be administered. The will appears to have been executed by her by way of caution, to operate, if any property is left to be administered.

In the Goods of Nursing Chunder Bysack (the deceased), Sale. decidedon July 28th, 1899 reported in Calcutta Weekly Notes (Vol .III) 635 itwas held that the leave would be necessary only if any thing is left by the deceased to be administered. When there are no debts or legacies to be paid and the administration is at an end, the administration may not be allowed. Itwas further held that, "The Court only looks into that question when the application is by an administrator, and the mortgage orsale is required in the course of administration, not when the estate has been ly administered."

In Lalit Chandra Chowdhuty and others v. Baikuntha Nath Chowdhury and another, Caspersz, J. and Doss, J. dated February 2,1910 reported in Calcutta Weekly Notes (Vol. XIV) 463 has held :

"It is evidence that the real object of this litigation is not to administer the estate of Harish (for that, as we have mentioned, must have been administered already) but to obtain a declaration of heirship so as to fortiry the successful party in any regular suit that may hereafter be instituted. We cannot permit such a course to be adopted, or to enlarge the scope of the Probate and Administration Act."

A will is an ambulatory (capable of being altered) document to operate only in respect of the estate, which exists at the time of the testator''s death. It speaks and comes into operation after the death of the testator. Every will ought to contain a subject, i.e. property which is sought to be disposed of and an object, i.e. person to whom that property is to be given between date of execution of the will and death of the testator. There may be changes in respect of both to subject and the object unless there is intention to the contrary. With regard to the object the will speaks from the date of execution of the will. Section 90 of the Indian Succession Act, 1925 provides that the description contained in a will, of property (the subject of gift) shall, unless a contrary intention appears by the will be deemed to refer to and comprise the property answering that description on the death of the testator. The will as such has to be construed with reference to the real state and personal estate comprised in it, to speak and to take effect as if it had been executed immediately before the death of the testator, and as if the condition of things to which it refers in this respect is that existing immediately before the death of the testator, unless a contrary intention appears by the will (vide Halsbury''sLaw of England Vol.28, page 691692). Section 152 of the Indian Succession Act provides for ademption of legacy. If anything which has been specifically be queathed does not belong to the testator at the time of his death or has been converted into property of a different kind, the legacy is adeemed i.e. it cannot take effect by reason of the subject matter having been withdrawn fromthe operation of the will.

In this case on the date of her death the sonof the deceased holding her registered power of attorney had executed a deed of nomination in favour of Shri A.S.K. Sirkar, the father of the plaintiff. ShriA.S.K. Sirkar had applied forgrant of free hold rights to the State Government under a policy of the State Government of the transfer of lands to the lessee as absolute owner. Shri A.S.K. Sirkar had applied for grant and had deposited the self assessed amount for converting lease'' hold land into free hold and thereafter by depositing the amount assessed by the Collector, Allahabad, the Governor of U.P, by a deed dated 28.9.2005, registered on 29.9.2005, transferred free hold rights to ShriA.S.K. Sirkar. The deed of nomination was executed after receiving consideration. Ms. Shamim Khan had challenged the grant of free hold rights to Shri A.S.K. Sirkar. Her objections were rejected. The deceased as such did not have the property sought to be trans ferred after her death under the will to Shri Ritesh Sirkar or Ms. Shamim Khan. The ''Letters of Administration'' to be granted to either of them. Will, as such, befc useless and inoperative document.

Both the testamentary suit and the testamentary case are as such disposed of and are consigned to records. It will be open to the parties, if need be, and the occasion so arise at any point of time, to apply to the Court for deciding the validity of the respective ''Wills''. The preliminary issue in Testamentary Suit No. 3 of 2005 is decided in favourotthe plaintiff Shri Ritesh Sirkar.