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2018 DIGILAW 1139 (ALL)

IN THE MATTER OF LATE SMT. KALAWATI v. .

2018-05-07

K.J.THAKER

body2018
JUDGMENT : Kaushal Jayendra Thaker, J. Petitioner, Arvind Kumar Dixit, is seeking Letters of Administration to the estate and the credits of the deceased late Kalawati, who is reported to have died on 19.7.1987. A death certificate dated 22.3.1987 has been brought on record. Petitioner is grand son of the deceased. 2. This case was contested by filing objection by Nagar Palika Parishad through Rajeev Kumar Mishra and oral Affidavits were exchanged. Rejoinder-affidavit was filed by the petitioner along with Affidavit of one Har Prasad, who has deposed by way of the Affidavit and supported the case of the petitioner. 3. In view of order dated 9.9.2016 and the notice issued thereafter to legal heirs of the deceased Kalawati, no-one has entered into any appearance and, therefore, it can be said that this is not a contesting matter. 4. The contest raised by Nagar Nigam, Jalaun, was rejected vide order dated 9.9.2016. The order dated 9.9.2016 reads as follows:- "Hon'ble Pankaj Mithal, J. The petitioner Arvind Kumar Dixit has applied under section 278 of the Indian Succession Act, 1925 for the grant of Letters of Administration to him in respect of the estate of the deceased Kalawati W/o late Sri Brahmdeen, R/o Mohalla Chaudharana, Kasba and District Jalaun, on the basis of her registered Will dated 19.11.1984, annexed with the petition. The Nagar Nigam, Jalaun has entered into a caveat and has filed counter to the petition seeking grant of Letters of Administration. Sri R.K. Mishra, learned counsel appearing for the Nagar Nigam argues that the properties mentioned in the schedule of the properties with the petition for grant of Letters of Administration were not the properties of the deceased rather that of the Nagar Nigam, Jalaun. The petitioner is not the heir and legal representative of the deceased and the death certificate enclosed with the petition is fictitious. The filing of a caveat has the effect of making proceedings for the grant of Letters of Administration contentuous matter, therefore, locus standi of a person lodging a caveat so as to oppose the grant is necessary to be looked into before he is allowed to contest the proceedings. It is only a person who has interest in the estate of the deceased is entitle to lodge a caveat and to oppose the grant of Letters of Administration. It is only a person who has interest in the estate of the deceased is entitle to lodge a caveat and to oppose the grant of Letters of Administration. Such a person must claim title in the property through the deceased and not independently of him. A person disputing the right of the testator to deal with the property as his own is not a person entitle to oppose the grant of Letters of Administration. In the Goods of Mrs Lydia and others, AIR 1952 Allahabad 543, the Court was called upon to decide the locus of the person lodging the caveat to the grant of probate. His Lordship of this Court held that a caveator, who says that the property does not form part of the estate of the deceased is not a person claiming an interest in that estate and as such has no locus standi to oppose the grant of the probate of the Will. The grant of probate of a Will or Letters of Administration of the estate with the Will annexed stand on the same footing in so far as the principle behind the lodging of a caveat. The Nagar Nigam, Jalaun is not claiming right in the properties mentioned in the schedule to the petition through the deceased rather independently of her. It therefore, has no locus to file caveat and to contest the grant of Letters of Administration to the petitioner. In the proceedings for the grant of Letters of Administration, the title of the properties referred to either in the petition or in the Will of the deceased is not to be adjudicated upon at all. In such proceedings, the genuineness of the Will or its authenticity or its due execution in accordance with law or the entitlement of the petitioner to administer the properties of the deceased alone is to be considered. The Court has no jurisdiction to adjudicate about the title of testator on the said properties as even about the existence of any of them. In D.S. Sriramiah Setty v. Smt. D. Kanthamma, AIR 1971 Mysore 148, it was held that a person, who claims the property by paramount title or adversely to the testator or disputes, the testator's right to deal with the property sought to be disposed of by the Will, has no right to enter a caveat. In D.S. Sriramiah Setty v. Smt. D. Kanthamma, AIR 1971 Mysore 148, it was held that a person, who claims the property by paramount title or adversely to the testator or disputes, the testator's right to deal with the property sought to be disposed of by the Will, has no right to enter a caveat. The only question, which arises for decision in such an application for grant of Letters of Administration is whether the Will propounded was the Will made by the testator while he was of a sound disposing state of mind. In view of the aforesaid facts and circumstances of the case, I am of the opinion that the Nagar Nigam, Jalaun has no caveatable interest in the matter and as such, the caveat filed by it is discharged. Order Date :- 9.9.2016 V.K.Upadhyay /Nadim" 5. On the presentation of the petition, notices were directed to be issued to the Administrator General U.P.. Notice of this petition was also directed to be served on Board of Revenue of U.P. 6. The citation of the petition was directed to be published in newspapers. 7. In response to the notices so issued, the other beneficiaries have filed their affidavit of consent for the grant of Letters of Administration to the estate and credits of the deceased. 8. The Administrator General and the Board of Revenue have also not filed any objection. 9. An affidavit of service has been filed. The copies of originals of the newspapers containing the citation is not filed but in response to the same consent has been given by other beneficiaries except the caveator. 10. In view of above, the matter is non-contentious in nature. Today the affidavits of all parties is taken on record. 11. The Registrar General of the Court has certified under Rule 8 of Chapter XXX of the Rules of the Court that he has received no intimation from any other High Court or District Court of any grant of probate of any Will or Letters of Administration of the property and credits of the above named deceased throughout the territory of India. Hence the present petition is the first and the only petition seeking grant of Letters of Administration to the estate and credits of the deceased. 12. The estimated value of the property is Rs. 12,00,000/-. Hence the present petition is the first and the only petition seeking grant of Letters of Administration to the estate and credits of the deceased. 12. The estimated value of the property is Rs. 12,00,000/-. All the heirs of the deceased have consented to the grant of letters of Administration in favour of the petitioner. 13. In view of the aforesaid facts and circumstances, as the petitioner is the widow of the deceased and the only heir of the deceased coupled with the fact that the other beneficiaries have appeared and consented to the grant of letters of Administration, I consider it fit and appropriate to permit the petitioner to administer the estate/credits of the deceased. 14. Accordingly, Letter of Administration is granted to the estate and credits of the deceased late Kalawati in favour of the petitioner subject to the Registrar General certifying payment of court fee as contemplated under Rule 9 of Chapter XXX of the Rules of the Court. 15. Petition is allowed.