Succession Act, 1925 – Ss. 276 & 291 – Will – Administration bond or Surety Bond –the Petitioner is required to prove that the testatrix signed the Will of her own free, having a sound disposition of mind and understood the nature and effect thereof. Where the genuineness of the Will is assailed on the ground of fraud, coercion and undue influence, the burden of proof shifts to the challenger. It is trite that the mere grant of a probate of a Will does not amount to declaring the title of the person at whose instance the Will has been probated. All that the Court does is to certify the genuineness of the Will. Since this is a petition filed by the sole beneficiary under the Will, the Court can grant letters of administration in favour of the Petitioner without requiring the Petitioner to furnish an administration bond or surety bond in terms of Section 291.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CORAM: JUSTICE S. MURALIDHAR
TEST.CAS. 91/2013 MALA BHAGAT BALI ….. Petitioner Through: Mr. Rahul Gupta, Mr. Shekhar Gupta and Mr. S. Tarbez, Advocates with Petitioner in person. versus STATE & ANR. ….. Respondents Through: Mr. D. L. Frey and Mr. Tarun Frey, Advocates for R-2.
I.A. No. 10151/2016 (for exemption)
1. Allowed, subject to all just exceptions.
IA No. 10152/2016 (for condonation of delay of 690 days in filing of the appeal)
2. This is an application seeking condonation of the delay of 690 days in filing the appeal against an order passed by the Joint Registrar („JR‟) on 16th September 2014 declining to give any further opportunity to the Appellant/Respondent No.2 to file a reply and thereby closing the said right to file a reply.
3. The reasons given by the Applicant are as under:
“3. For some quite time now particularly after the demise of her father (who was also an Advocate), Appellant has been suffering from Post Traumatic Stress Disorder (PTSD). This is a psychiatric condition where the patient suffers from panic attacks specially while dealing with issues on which they are sensitive. In the case of Appellant it is issues of close family members. While the Appellant who is also visually handicapped is at ease handling her clients’ matters she gets severe panic attacks while dealing with the instant case involving her younger sister and her late mother. Appellant was advised by a senior psychiatrist that anti-depressants and tranquilizers which are normally prescribed for such disorders do not help as they produce withdrawal symptoms which include rebound anxiety and panic attacks. Appellant’s PTSD got worse after her demise of her mother (deceased) in October 2013. The Respondent was fully aware of the Appellant’s condition and took full advantage of it.
4. Psychiatrists advise that situations that trigger panic attacks should be avoided at all cost. It is precisely for this reason that Appellant who drafted and finalized her objections (written statement) in the instant matter and had her supporting affidavit attested by the Delhi High Court Oath Commissioner on 07.07.2014 did not actually file the same. Strange as it may seem, the situation was akin to a surgeon preparing to perform a life saving surgery on his son but developing cold feet at the eleventh hour.
5. Attempts by Appellant to engage Counsel were not successful. Counsel who thought they would end up working gratis for a colleague encouraged her to deal with the matter in person; which she could not do.”
4. It is further stated in para 9 as under:
“9. It is submitted that the non-filing of the appeal and the nonappearance of Appellant before the Ld. Joint Registrar were neither deliberate nor intentional but was on account of factors not within her control. The Appellant sincerely regrets her default and beseeches this Hon’ble Court on humanitarian grounds to condone the delay in filing the accompanying appeal for setting aside the impugned order dated 16.09.2014 of the Ld. Joint Registrar.”
5. It is pointed out by learned counsel for the non-Applicant/Petitioner that on 30th April 2014, Respondent No.2 herself appeared in this Court in these proceedings. She is in fact an Advocate practising in this Court. The Court then granted four weeks‟ time to Respondent No.2 to file her reply and directed the matter to be listed on 16th September 2014 before the JR. On that day, however, Respondent No.2 did not appear and the following order was passed:
“Valuation report has been received from SDM.
Respondent no.2 has not filed any reply, despite opportunity being given. Respondent no.2 was served with the summons on the petition on 17.01.2014. Sufficient opportunity has been given to respondent no.2 for filing the reply. I am not inclined to grant any further opportunity, hence, the right of respondent no.2 to file reply stands closed.
Matter be placed before the Hon’ble Court for further directions on 16th December, 2014.”
6. On 7th July 2015, the non-Applicant/Petitioner tendered for recording of evidence herself as PW-1 as well as one of the attesting witnesses Mr. Puneet Raman (PW-2). The JR recorded that there was no cross-examination by the Respondents. It was noted: “Nil, opportunity given as none appeared on behalf of the Respondents.” Thereafter the Petitioner filed an application for summoning an official from the office of the Sub-Registrar together with the records. That application was allowed by the JR on 15th July 2015 and the matter was adjourned to 21st July 2015 for the said witness to appear.
7. The proceedings recorded by the JR on 21st July 2015 reads as under:
“PW-3 is present. She has been examined, cross- examined and discharged. Diet money has been paid to PW-3 in the court today by ld. counsel for petitioner. Petitioner’s evidence stands closed.
Matter be placed before the Hon’ble Court for further directions for 27th July, 2015, the date already fixed.”
8. It is seen that not only did Respondent No.2 appear before the JR on that day but in fact subjected the witness, who appeared as PW-3, viz., the Upper Divisional Clerk („UDC‟) in the office of the Sub-Registrar-VII, INA, Vikas Sadan, New Delhi to a very detailed cross-examination as regards registration of the Will dated 4th January 2012 stated to have been executed by the mother of the Petitioner as well as Respondent No.2. It is not, therefore, possible for this Court to accept the plea of Respondent No.2 regarding her state of mind and her inability to pursue the case for the circumstances mentioned by her in the application.
9. Learned counsel for the Applicant/Respondent No.2 repeatedly stated that he was unable to produce any of the documents that might show the mental condition of the Applicant as that would have “consequences for her” obviously since she is a practising Advocate who continues to actively pursue the cases of her clients and appears not only in this Court but other courts as well. It is not possible for this Court to take judicial notice of a state of mind of a person who claims to be suffering from a specific medical problem. That is a matter of special medical knowledge which certainly would be risky to take simply judicial notice of. Apart from the fact that there are no documents produced before the Court which can even reasonably support the averments in the application as regards the mental condition of the Applicant, her very conduct in this case and the fact that she was and is continuing to appear in other cases of her clients in the Court throughout the period in question makes it difficult for the Court to simply take judicial notice of what is being stated in the application.
10. The reasons for the Applicant not making any attempt at filing any application to not only recall the order dated 16th September 2014 but even the subsequent order dated 21st July 2015 wherein she is shown as having cross-examined PW-3 at great length fails to persuade the Court that she was unable to file an appeal challenging the order dated 16th September 2014 earlier. In other words, the Court is not satisfied that the delay of 690 days in filing this appeal is for bona fide reasons and for reasons beyond the control of the Petitioner.
11. The application is accordingly dismissed.
OA No. 161/2016
12. In view of the dismissal of IA No. 10152/2016, this OA is also dismissed.
13. This is a petition under