1. Supplementary affidavit dated 26.4.2017, has been filed today, which is taken on record.
2. Heard Sri Ashish Jaiswal alongwith Sri Vinayak Mithal, learned counsels for the petitioner.
FACTS:-
3. This petition under Section 273 of the Indian Succession Act, 1925 (hereinafter referred to as "the Act") read with Chapter XXX Rule 6 of the Allahabad High Court Rules, has been filed praying for letters of Administration in respect of the goods and estate of the deceased - Jakira Bibi, who allegedly died intestate on 17.9.2000. As per Schedule 'A' to the petition, the plots in respect of which letters of administration has been sought, are plot No.593/1, situate in town area- Mariyahu, District - Jaunpur and plot Nos.1658, 1659, 791, 793, 1678, 1677, 1721/1, 1721/2, 818/1M, 806M, 807M and 1690M situate in Village - Dilawarpur, Tehsil - Mariyahu, District - Jaunpur.
4. This Court confronted the learned counsels for the petitioner with the copies of various papers filed along with the petition as well as supplementary affidavit filed today and asked them to explain as to how this petition is maintainable at the instance of the present petitioner-applicant. Under the circumstances, this Court requested the learned counsels for the petitioner-applicant to make submissions on the question of maintainability of the petition under the facts and circumstances of the present case.
SUBMISSIONS:-
5. Sri Ashish Jaiswal, learned counsel for the petitioner-applicant submits as under:-
(i) The judgment dated 15.07.1961, was passed by the Sub-Divisional Officer, Mariyahu, Jaunpur, in Suit No.319 under Section 229-B of the U.P.Z.A. & L.R. Act (Jakira Bibi Vs. Jagdish & others, Goshwara No. 673), whereby the rights of the Jakira Begum were declared with respect to certain Khasra plots but the revenue authorities inadvertently have not given affect to the said judgment.
(ii) By the aforesaid judgment dated 15.07.1961, the rights of Zakira Bibi (mother of the petitioner) have been declared and, therefore, the petitioner is entitled for Letters of Administration.
(iii) When an application for Letter of Administration is filed under Section 273 of the Act, it is necessary for the Court to invite objections from the kin. The petition cannot be dismissed without inviting objections. The petitioner being the only son, has right to get Letters of Administration in respect of the properties shown in Schedule A.
(iv) In view of the provisions of Rule 3 of Chapter XXX of the Allahabad High Court Rules, if no one comes forward to contest the petition then Letters of Administration may be granted after the notice is issued to kin. If any objection is filed then such objection may be entertained, but without there being any objection, the petition cannot be dismissed.
6. Sri Vinayak Mithal, learned counsel, who also appears for the petitioner submits as under:-
(i) Without issuing notices to the next kin, the petition cannot be dismissed.
(ii) In an adversely litigation a petition cannot be dismissed in limine unless it is barred by any provisions of law or any of the ground mentioned in Order VII Rule 11 C.P.C.
DISCUSSION AND FINDINGS
7. As per case set up by the petitioner in paragraphs-1, 2, 3 and 4 of the petition and paragraph-3 and 4 of the supplementary affidavit dated 26.04.2019, late Sheik Chamaru had purchased the properties (mentioned in paragraph-3 above) by a registered sale deed in the year 1899. However, copy of the sale deed has not been filed. After the death of Sheikh Chamaru, the aforesaid properties were inherited by his son Sheikh Rahat Ali and after his death, the properties were inherited by the daughter of Rahat Ali, namely Smt. Jakira Bibi. It has been alleged that Jakira Bibi was firstly married with one Sujayat Ali and from their wedlock, only one daughter, namely Shakeela Begum wife of Gaffar Khan was born. It is alleged that after the death of Sujayat Ali, Jakira Bibi married with Syed Munshi Raza and from their wedlock, only the petitioner (Syed Mirazul Raza) was born. Therefore, the case of the petitioner is that he being the only son of Jakira Bibi and Syed Munshi Raza is the heir and successor of the estate left by Jakira Bibi and therefore, he is entitled for the letters of administration in respect of the disputed property as mentioned in Para-3 above.
8. No paper has been filed along with the petition or the supplementary affidavit to indicate prima facie that on the alleged date of death of Jakira Bibi i.e. 17.09.2000, she was owner of the properties in question which are mentioned in Para-3 above. On the contrary, as per copies of khatauni filed along with the petition, it is evident that more than 84 persons are recorded as bhoomidhar of the aforesaid plots in the record of rights, i.e. khatauni.
9. From the copies of papers filed along with the petition and the supplementary affidavit, it transpires that the present petition has been filed suppressing material facts, making false averments in the petition, suppressing particulars of kin of earlier recorded tenure holder Jakira Bibi and that prima facie, the petition is based on false averments, which is evident from the following facts:
(i) As per copy of the plaint of Suit No.319 under Section 229B filed on 05.01.1953, Jakira Bibi was aged about 51 years and she was wife of Sujayat Ali and daughter of Rahat Ali. It was stated by Jakira Bibi in para-6 of the aforesaid plaint (annexure-4 to the supplementary affidavit) that her husband Sujayat Ali died few years before the independence of the country. Similar observation has been made in the judgment dated 15.07.1961 of the aforesaid Suit No.319 under Section 229B that her husband Sujayat Ali died few years before the independence of the country. In paragraph-12 of the aforesaid plaint of Suit No.319, Jakira Bibi stated that she has one son and five daughters. Finding has been recorded in the judgment dated 15.07.1961 (Annexure-5 to the supplementary affidavit) under Section 229B passed by the Sub-Divisional Officer, Mariyahu, Jaunpur that Jakira Bibi has one son and five daughters. Thus, from the alleged copy of the plaint of Suit No.319 filed by Jakira Bibi on 05.01.1953 and the decision dated 15.07.1961 passed in the aforesaid suit by the S.D.O. Mariyahu, District Jaunpur, Jakira Bibi was aged about 51 years as on 05.01.1953 and her husband Sujayat Ali died few years before the independence of the country in the year 1947 and from the wedlock to Jakira Bibi and Sujayat Ali, one son and five daughters were born, who were alive. Thus, the petitioner has made false averment in the present petition that only one daughter Shakila Begum was born from the wedlock of Jakira Bibi from her first husband Sujayat Ali. The fact of one son and five daughters, has been suppressed in the present petition.
(ii) The petitioner has claimed himself to be the son of one Syed Munshi Raza, who was constable in Uttar Pradesh Police and retired on 06.11.1951 and died on 23.05.1958. The case of the petitioner is that the aforesaid Syed Munsi Raza is the second husband of Jakira Bibi and from their wedlock, only he was born. There is no whisper either in the aforesaid plaint dated 05.01.2019 of Suit No.319 under Section 229B of U.P.Z.A. & L.R. Act filed by Jakira Bibi or in the decision of the S.D.O. Mariyahoo, Jaunpur dated 15.07.1961 that Syed Munshi Raza is the husband of Jakira Bibi or that the petitioner is her son. On the contrary, she has mentioned her husband's name as Sujayat Ali.
(iii) Neither there is any averment in the whole of the petition or the supplementary affidavit nor any paper has been filed to indicate prima facie that Jakira Bibi was the wife of Munshi Raza. On the contrary, it appears from the judgment of the S.D.O. Mariyahu, Jaunpur dated 15.07.1961 in Suit No.319 and also in Case No.65/105/283 (Mst. Jakira Bibi vs. Hari Mohan and others) under Section 229 B decided on 09.01.1986 that Jakira Bibi was the wife of Sujayat Ali and daughter of Rahat Ali. A copy of this decision of the Sub-Divisional Officer, Mariyahu dated 09.01.1986 has been filed as Annexure-8 to the supplementary affidavit in which it is mentioned that the case has been filed by Mst. Jakira Bibi widow of Sujayat Ali and she personally appeared in the aforesaid case and stated that she is suffering from knee problem (arthritis) and for treatment she remained in Bombay from 25.12.1975 to 30.12.1976. This paper also evidences that in the aforesaid case filed by Jakira Bibi sometime after the year 1976 which was decided on 09.01.1986 by the Sub-Divisional Officer Mariyahu, Jaunpur, she stated that she is the widow of Sujayat Ali. She has not stated that either her husband was Syed Munshi Raza (father of the petitioner) or that she is widow of Syed Munshi Raza who died on 20.03.1958. In copies of certain khataunies in the reports dated 30.10.1991 of revenue authorities and the recommendation of the Tehsildar dated 19.01.1992 along with copies of khataunis between the fasli years 1377 to 1398, with respect to khasra plot No.510, Jakira Bibi was the widow of Sujayat Ali. These papers have been filed from pages-52 to 61 of the supplementary affidavit. Alleged order dated 29.03.1992 in Case No.663 (Jakira Bibi vs. Town Area) under Section 33/39, L.R. Act allegedly passed by the Sub-Divisional Officer, Madiyahoo, Jaunpur and the copy of the application of Jakira Bibi dated 24.06.1987 also shows that Jakira Bibi was widow of Sujayat Ali. Copies of various papers filed as Annexure-8 to the supplementary affidavit (pages 48 to 91) also discloses Jakira Bibi to be widow of Sujayat Ali and daughter of Rahat Ali. In these papers also, there is no mention of Syed Munshi Raza (father of the petitioner) to be the husband of Jakira Bibi or that the Jakira Bibi was the widow of Munshi Raza. Even as per the alleged death certificate of Jakira Bibi filed as Annexure-1 to the petition, the Jakira Bibi was the wife of late Sujayat Ali and she died on 12.07.2000 at the age of 105 years. In the aforesaid alleged death certificate, the name of persons who gave information about the death of Jakira Bibi is mentioned as Imamul Raza, who as per alleged copy of the Adhar Card filed along with the petitioner is the son of the petitioner Syed Mirazul Raza son of Syed Munshi Raza. Thus, from the papers filed along with the petition and the supplementary affidavit, it is evident that Jakira Bibi was the wife of Sujayat Ali. No paper has been filed to indicate even prima facie that the petitioner is the son of Jakra Bibi for whose properties the present petition for issuance of letters of administration and the succession certificate has been filed.
(iv) As per the alleged death certificate dated 17.09.2000 filed as Annexure-1 to the petitioner, Jakira Bibi died on 15.07.2000 at the age of 105 years. Therefore, her birth year would be around the year 1895. Therefore, she would have been around 50 years of age at the time of death of hear husband Sujayat Ali sometimes before the year 1947. As per allegations made by the petitioner, his father retired from Police service in the year 1951. There is no averment in the petition that when the father of the petitioner Munshi Raza married with Jakira Bibi or that when the petitioner was born from their wedlock. Papers filed along with the petition and supplementary affidavit shows that Jakira Bibi was only the widow of Sujayat Ali and she had one son and five daughters. There is nothing on record to indicate that the petitioner is the son of Jakira Bibi.
10. Thus, from the facts discussed in paras-7, 8, and 9 and its sub-paras above, it is evident from the wedlock of Sujayat Ali and Jakira Bibi, one son and five daughters were born which fact has been suppressed in the present petition. There is no evidence that the petitioner is the son of Jakira Bibi or that Syed Merajul Raza - father of the petitioner was the husband of Jakira Bibi. There is also no evidence that at the time of her death, Jakira Bibi was owning the disputed properties. The present petition has been filed suppressing material facts and making false averments and, therefore, it deserves to be dismissed.
11. Section 278 of the Act mandates that an application for letters of administration shall be made by petition and stating (a) the time and place of the deceased's death; (b) the family or other relatives of the deceased, and their respective residences; (c) the right in which the petitioner claims; (d) the amount of assets which are likely to come to the petitioner's hands; (e) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the District Judge; and (f) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate. As per Section 300 of the Act, The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge. Rule 10 of Chapter XXX of the Allahabad High Court Rules provides that the Judge may, where he deems it necessary, require to prove, in addition to the usual statement required to be made in the petition of the identity of the deceased or the party applying for the grant. Facts of the case as discussed above in paras-7, 8, 9 and 10, clearly reveal that the petitioner has suppressed the material facts which were required to be stated in the petition as per provisions of Section 278 (1) (b)/(c). He failed to establish his identity as well as the identity of the deceased Jakira Bibi as wife of the father of the petitioner. Therefore, the writ petition also lacks compliance of mandatory provisions of Section 278 of the Act and Rule 10 of Chapter XXX of the Allahabad High Court Rules.
12. In the case of S.P. ChengalVaraya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs and others, AIR 1994 SC 853 (Para-7), the Hon'ble Supreme Court held, as under :
"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
13. From the discussion, it is evident that the present petition is a frivolous petition based on falsehood and, therefore, it deserves to be dismissed with cost in view of the law laid down by Hon'ble Supreme Court in S.P. Chengalvaraya Naidu (dead) by L.Rs. (supra), Punjab State Power Corporation Ltd. Vs. Atma Singh Grewal, (2014) 13 SCC 666 and Dnyandeo Sabaji Naik Vs. Pradnya Prakash Khadekar, (2017) 5 SCC 496 (Paras-9 to 14).
14. For all the reasons stated in Paras-7 to 13 above, the testamentary case is dismissed with cost.
Order Date :- 26.04.2019 NLY