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1996 DIGILAW 323 (DEL)

SHAKUNTALA TAXALI v. STATE OF DELHI

1996-04-01

MANMOHAN SARIN

body1996
Manmohan Sarin, J. ( 1 ) THIS is an application moved by the petitioner under Section 94 read with Section 151 Civil Procedure Code seeking exemption from furnishing the administration cum surety bond as well as for discharge and/or exonerating the surety from future liability. ( 2 ) THE facts leading to the filing of the present application may be briefly noted:- THE petitioner is the daughter-in-law of the pre deceased son of late Smt. Shakuntala Taxali. The petitioner had filed the probate petition No-8/1994 under Section 276 and 278 of the Indian Succession Act, praying inter alia for the grant of the probate of the Will dated 1-5-1980, executed by the deceased Smt. Shakuntala Taxali and for the grant of letter of administration of the estate detailed in annexure 2 to the petition. The two surviving sons of late Smt. Shakuntala Taxali, Sh. Shyam Kumar and Sh. Nareshkumar Taxali as well as daughter of the deceased Smt. Sudesh Uppal were impleaded as respondents apart from State. The citation was published in the newspaper. The Will was duly proved and the respondents/near relations filed their No Objection and affidavits in support of the Will. The petitioner is the named executor in the Will. ( 3 ) VIDE order/judgment dated 6-4-1995, Devender Gupta, J allowed the petition as prayed and ordered the grant of letters of administration with respect of the estate of the deceased as listed in annexure 2 to the petition, with Will attached thereto in accordance with Law. Pursuant thereto the petitioner filed one administration cum surety bond. However, the Registrar in accordance with Original Side. practice and direction No. 4, required the petitioner to furnish two sureties as the value of the estate was above RS. 1000. 00. The petitioner thereafter kept on seeking time to furnish the second surety and the matter was adjourned from time to time to enable the petitioner to do the needful. ( 4 ) THE petitioner thereupon by December 1995 furnished the administration cum surety bonds dated 19-5-1995 and 3-11-1995 and the statement of the petitioner as well as that of Smt. Sudesh Uppal, who had signed as one of the sureties were recorded. Thereafter, the petitioner moved I. A. 12316/95, seeking exemption from furnishing the second administration/cum surety bond on the ground that the second surety Mr. C. M. Chopra is not available in Delhi and had to travel abroad. Thereafter, the petitioner moved I. A. 12316/95, seeking exemption from furnishing the second administration/cum surety bond on the ground that the second surety Mr. C. M. Chopra is not available in Delhi and had to travel abroad. Considering that the Will was in favour of the natural heirs aswell as it was not a contested matter, the I. A. was disposed of vide orders dated 5-1-1996 and 12-2-1996 dispensing away with the requirement of filing second administration/cum surety bond ( 5 ) IT is at this juncture that the present application has been moved. LEARNED counsel has relied on the decision ofsubhash Chopra Vs. State reported at 39 (1989) DLT 297 by Mahinder Narain, J as well as Sambhu P. Jaisinghani Vs. Kanayalal P. Jaisinghani and Others reported at 60 (1995) DLT I, wherein the requirement for furnishing of administration/cum surety bond was waived. Learned counsel has urged that in the present case the requirement of furnishing the second administration/ cum surety bond should be waived as this was not a contested matter and the execution of the Will had been duly proved without any objection by any of the relations. Besides there was no time limit fixed for release from liability under the surety bond. ( 6 ) I am not persuaded to exercise discretion in favour of the petitioner in dispensing with the requirement for furnishing of the administration cum surety bond. The cases relied on by the petitioner do not advance her case in as much as in the decision of Subhash Chopra Vs. State - Supra, Mahinder Narain, J, while granting probate in favour of the petitioner directed the petitioner to file requisite account and administer the estate in the manner in which it was required to be administered. The learned judge dispensed with the requirement of furnishing administration bond under Section 291 of the Indian Succession Act since letter of administration had not been sought. Reference is invited to the para 5 of the said judgment/order. Similar is the situation in Sambhu P. Jaisinghani Vs. Kanayalal P. Jaisinghani and Others -Supra. In the instant case, the petitioner had made a specific prayer for grant of a probate and for the grant of letters of administration of the estate. The prayer had been specifically allowed and the letters of administration directed to be issued with copy of the Will annexed. Kanayalal P. Jaisinghani and Others -Supra. In the instant case, the petitioner had made a specific prayer for grant of a probate and for the grant of letters of administration of the estate. The prayer had been specifically allowed and the letters of administration directed to be issued with copy of the Will annexed. Accordingly, Section 291 would therefore, come into play. The exemption under Section 291 of the Indian Succession Act is only when the letter of administration is granted under Section 241 to the attorney of an executor in the contingency set out in the said section. ( 7 ) MOREOVER, it seems that the petitioner had been repeatedly seeking time to complete the formalities for the second bond. The Will in question is concerned with an immovable property as well as the distribution of Jewellery and the disposition of a loan owing to the deceased in terms of the Will. The petitioner has already been exempted from filing the second administration cum surety bond. The first administration cum surety bond had already been filed on record and the statements in support thereof the petitioner and the sureties have been recorded. The said administration cum surety bond is on record. It is not as if that the said administration cum surety bond is of an indefinite duration. In terms of the bond itself, the petitioner is required within six months from the grant of letters of administration or such further time as may be extended by the Court to make an inventory of the assets and property as well as credit and debts owing to the deceased and file an account of the estate of the deceased showing the manner in which the assets that have came to the petitioner s hand had been applied and disposed of. The bond becomes void in compliance of the aforesaid. ( 8 ) HAVING regard to the facts and circumstances of the case, I am not satisfied that this is a case where the petitioner/surety should be granted discharge from the administration/ cum surety bond, which has been filed and is pending acceptance on record. The application has no merit and is dismissed.