Over 2 lakh Indian cases. Search powered by Google!

Case Details

IN THE MATTER OF GOODS OF LATE SHIV SHANKER MISHRA

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


In The Matter Of Goods Of Late Shiv Shanker Mishra - TESTAMENTARY CASES No. 22 of 2004 [2005] RD-AH 1250 (5 May 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 48

Testamentary Case No.22 of 2004

(under Section 278 of the Indian Succession Act)

In the matter of Goods of Late Shiv Shanker Mishra Son of Late Jiut Bandhan Mishra, Resident of 162, BHS, Allahpur, Allahabad (U.P.), Permanent R/o Village, Marui Post Sindhaura, District Varanasi

.................................Deceased

Smt. Shashi Bala Mishra, W/o Late Shiv Shanker Mishra, R/o Village Marui, Post Sindhaura, District Varanasi

............................. Petitioner /Applicant

Hon. S.P. Mehrotra, J.

The present Testamentary Petition has been filed by the petitioner (Smt. Shashi Bala Mishra) under Section 278 of the Indian Succession Act, 1925, interalia, praying for grant of Letters of Administration in respect of the assets of the deceased, namely, the late Shiv Shanker Mishra, as mentioned in Schedule-I accompanying the Affidavit of Valuation.

It is, interalia, stated in the Testamentary Petition that the said Shiv Shanker Mishra died on 8.5.2004 at Heartline Hospital, Allahabad.

Photostat copy and typed copy of the Death Certificate issued by the Sub-Registrar, Birth and Death, Nagar Nigam, Allahabad has been filed as Annexure-1 to the Testamentary Petition.

It may be mentioned that alongwith Civil Misc. Application No. 52549 of 2005 (Paper No. A-9), the petitioner filed a Supplementary Affidavit, sworn on 7.3.2005, alongwith the Original Death Certificate in respect of the said Shiv Shanker Mishra (deceased) issued by the Sub-Registrar, Birth and Death, Nagar Nigam, Allahabad on 3.7.2004.

By an order dated 16.3.2005 passed on the aforesaid application (Paper No. A-9), the said Supplementary Affidavit alongwith the said Original Death Certificate in respect of the said Shiv Shanker Mishra (deceased) was taken on record.

It is, interalia, further stated in paragraph 2 of the Testamentary Petition that the said deceased (Shiv Shanker Mishra) has left behind the following heirs including the petitioner:

(a) Smt. Shashi Bala Mishra W/o Late Shiv Shanker Mishra Resident of Village Marui, Post Sindhaura, District Varanasi (Widow of deceased - petitioner);

(b) Shri Ajay Mishra, S/o Late Shiv Shanker Mishra, Resident of Village Marui, Post Sindhaura, District Varanasi (Son of deceased);

(c) Smt. Surabhi Pandey, W/o Brijesh Kumar Pandey, D/o Late Shiv Shanker Mishra, Resident of Village Marui, Post Sindhaura, District Varanasi (Daughter  of deceased);

(d) Kumari Alka Mishra, D/o Late Shiv Shanker Mishra, Resident of Village Marui, Post Sindhaura, District Varanasi (Daughter of deceased).

It is, interalia, stated in paragraph 3 of the Testamentary Petition that the said deceased (late Shiv Shanker Mishra) left behind him various amounts in different Banks as detailed in Item Nos. (A), (B), (C), (D) and (E) in paragraph 3 of the Testamentary Petition.

Photostat copies of the relevant extracts of the Bank Passbooks in respect of various amounts mentioned in Item Nos. (A), (B) and (C) in paragraph 3 of the Testamentary Petition have been filed as Annexures-2,3 and 4, respectively to the Testamentary Petition, while Photostat copies of the Deposit Reinvestment Certificates in respect of various amounts mentioned in Item Nos. (D) and (E) in paragraph 3 of the Testamentary Petition have been filed as Annexures- 5 and 6 respectively to the Testamentary Petition.

It is, interalia, stated in paragraph 4 of the Testamentary Petition that the petitioner has correctly set-forth in Schedule-I accompanying the Affidavit of Valuation, the details of the assets of the deceased.

It is, interalia, stated in paragraph 6 of the Testamentary Petition that to the best of the petitioner's knowledge, the deceased has not left any other movable or immovable property except as mentioned in Schedule-I accompanying the Affidavit of Valuation.

It is, interalia, stated in paragraph 5 of the Testamentary Petition that at the time of his death, the deceased had a fixed place of abode at Allahabad, i.e., House No. 162, BHS, Allahpur, Allahabad, which was a rental house in which the deceased was residing as tenant.

Alongwith the Testamentary Petition, an Affidavit of Valuation, sworn by Smt. Shashi Bala Misra (petitioner) on 16.9.2004, was filed.

It further transpires that the said Affidavit of Valuation filed alongwith the Testamentary Petition was incomplete, and in the circumstances, the petitioner filed Civil Misc. Application No. 82147 of 2005 (Paper No. A-12), interalia, praying that the Affidavit of Valuation  (sworn on 8.4.2005) filed alongwith the said application be taken on record.

By the order dated 12.4.2005 passed on the said Civil Misc. Application No. 82147 of 2005, the said Affidavit of Valuation filed alongwith the said application was directed to be taken on record, and be read as part of the Testamentary Petition.

It is, interalia, stated in paragraph 3 of the said Affidavit of Valuation, sworn on 8.4.2005, that the petitioner has correctly shown in Schedule-I accompanying the said Affidavit of Valuation, the true valuation of the assets which are likely to come to the petitioner ''s hands.

It is, interalia, stated in paragraph 4 of the said Affidavit of Valuation sworn on 8.4.2005, that the value of the assets likely to come to the petitioner's hands is Rs. 6,94,287/-.

Schedule-I accompanying the said Affidavit of Valuation, sworn on 8.4.2005, contains details of the accounts left by the said deceased (late Shiv Shanker Mishra),  which are lying in various Bank Accounts, mentioned in the said Schedule.

It is, interalia, stated in paragraph 7 of the Testamentary Petition that the deceased (namely, late Shiv Shanker Mishra) has neither left any Will in favour of any person nor appointed any nominee to operate  the accounts, as mentioned in Schedule-I accompanying the Affidavit of Valuation.

It is, interalia, further stated in paragraph 7 of the Testamentary Petition that the petitioner being the legally wedded wife of the deceased, namely, late Shiv Shanker Mishra, is entitled to receive the amounts lying in the said accounts.

It is, interalia, stated in paragraph 8 of the Testamentary Petition that to the best of the petitioner's knowledge and belief, no other application for grant or Probate and Letters of Administration of the said assets has been made in any Court of Law throughout the territory of India.

It is, interalia, stated in paragraph 10 of the Testamentary Petition that the petitioner undertakes to duly administer the property and the credit of the deceased , namely, late Shiv Shanker Mishra.

It further transpires that as the petitioner had not filed any affidavit in support of the Testamentary Petition, the petitioner filed Civil Misc. Application No. 82153 of 2005, iinteralia praying that the affidavit, sworn on 8.4.2005, filed alongwith the said application be taken on record, and be treated as an affidavit in support of the Testamentary Petition.

By the order dated 12.4.2005 passed on the said Civil Misc. Application No. 82153 of 2005 (Paper No. A-11), the said application was allowed, and the affidavit filed alongwith the said application was directed to be taken on record, and to be read as part of and in support of the Testamentary Petition.

By the order dated 24.9.2004, directions were, interalia, given for issuance of notices to the next-of-kins mentioned in paragraph 2 of the Testamentary Petition and for publication of citation in the Newspapers mentioned in the said order dated 24.9.2004. The said order dated 24.9.2004 is quoted below:

"Issue notice to the following:

(1) Next-of-kins, mentioned in paragraph 2 of the Testamentary Petition.

(2) Administrator General and Official Trustee, U.P., Allahabad.

(3) Board of Revenue, U.P., Allahabad.

Besides, citation will be published in one issue of the daily newspaper "Pioneer" published in English from Lucknow in its Edition having circulation in the districts Varanasi and Allahabad and one issue of the daily newspaper "Dainik Jagran" published in Hindi from Allahabad in its Edition having circulation in the districts Varanasi and Allahabad. Notices will be issued fixing a date in the week commencing 13.12.04.

The Registrar-General will submit the requisite Certificate as per the requirements of Chapter-XXX, Rule 8 of the Rules of the Court.

Steps will be taken by the learned counsel for the petitioner within two weeks."

It further appears that the notices pursuant to the directions given in the said order dated 24.9.2004 were issued. Further, citation was also published in the newspapers, as per the directions contained in the said order dated 24.9.2004, and a Supplementary Affidavit (Paper No. A-5), sworn on 5.12.2004, was filed on behalf of the petitioner annexing thereto relevant extracts of the newspapers wherein the citation had been published pursuant to the directions given in the order dated 24.9.2004.

Further, no-objections in the form of affidavits (Paper No. A-7, Paper No.-A-6, and Paper No. A-8) were also filed on behalf of the next-of-kins mentioned in paragraph 2 of the Testamentary Petition through Shri M.N. Shukla, Advocate.

The Office submitted its Report dated 13.12.2004 regarding compliance of the directions given in the said order dated 24.9.2004.

In the circumstances, the Court passed the following order dated 13.12.2004:

"Pursuant to the order dated 24th September, 2004, the case is listed today.

Perused the office report dated 13-12-2004.

A perusal of the said Report shows that the learned counsel for the petitioner took steps for issuance of notices as directed by the said order dated 24th September, 2004, and accordingly, notices were issued as per the directions contained in the said order dated 24th September, 2004.

As regards the notices issued to the Administrator General and Official Trustee, U.P., Allahabad and the Board of Revenue, U.P., Allahabad, the said office report shows that the said notices have been served.

As regards the notices issued to the next of kins mentioned in paragraph 2 of the Testamentary Petition, the said office report states that neither Acknowledgement Due nor undelivered cover has been returned back.

The said office report further shows that the learned counsel for the petitioner also took steps for publication of citation in the newspaper as per the directions contained in the said order dated 24th September, 2004.

Supplementary Affidavit (Paper No. A-5) sworn on 5th December, 2004 has been filed on behalf of the petitioner.

From a perusal of the averments made in the said Supplementary Affidavit, it appears that pursuant to the directions given in the said order dated 24th September, 2004, citation was got published in the newspaper "Dainik Jagran" dated 2nd December, 2004 and in the newspaper "Pioneer" dated 3rd December 2004.

Copy of the relevant extract of the said newspaper "Dainik Jagran" dated 2nd December, 2004 has been filed as Annexure S A-1 to the said Supplementary Affidavit while copy of the relevant extract of the said newspaper "Pioneer" dated 3rd December, 2004 has been filed as Annexure S.A-2 to the said Supplementary Affidavit.

Having regard to the averments made in the said Supplementary Affidavit (Paper No. A-5), it is directed that the said Supplementary Affidavit along with copies of the extracts of the said newspapers be taken on record.

A perusal of the said office report dated 13-12-2004 further shows that No-Objections have been filed on behalf of the next of kins mentioned in paragraph 2 of the Testamentary Petition through Sri M.N. Shukla, Advocate.

Affidavit sworn on 6th December, 2004 (Paper No. A-7) by Ajay Mishra, next of kin mentioned at Item No. (b) in paragraph 2 of the Testamentary Petition, has been filed through Sri M.N. Shukla, Advocate.

Further, affidavit sworn on 6th December, 2004 (Paper No.A-6) by Smt. Surabhi Pandey, next of kin mentioned at Item No. (c) in paragraph 2 of the Testamentary Petition, has been filed through Sri M.N. Shukla, Advocate.

Again, affidavit sworn on 6th December, 2004 (Paper No. A-8) by Km. Alka Mishra, next of kin mentioned at Item No. (d) in paragraph 2 of the Testamentary Petition, has been filed through Sri M.N. Shukla, Advocate.

List this case in the week commencing 24th January, 2005.

Office will submit report as to whether any caveat / objections has been filed pursuant to the publication of citation in the said newspapers".

Pursuant to the directions given in the said order dated 13.12.2004 requiring  the Office to submit Report as to whether any caveat/objections had been filed pursuant to the publication of citation in the newspapers mentioned in the order dated 24.9.2004, the Office submitted its Report dated 24.1.2005/2.2.2005/11.2.2005, which is reproduced below:

"In compliance with the Hon'ble Court's order dt. 13-12-04, the case is put up for orders.

It is further submitted that despite issuance of notices as well as publication of citation in the newspapers none has come forwarded to oppose the prayer of the Testamentary Petition so far."

In view of the said Report, the Court passed the order dated 11.2.2005 treating the present case as a non-contentious one. The said order dated 11.2.2005 is as follows:

"Pursuant to the order dated 13.12.2004, Office has submitted its report dated 24.1.2005/2.2.2005/11.2.2005.

In view of the said Office Report, the present case is a non-contentious one.

List in the next cause list for hearing.

The name of Sri M.N. Shukla, learned counsel for the next-of-kins mentioned at serial nos. (b), (c) and (d) in paragraph no.2 of the Testamentary Petition, will be shown in the cause list, when the case is listed next."

A perusal of the ordersheet shows that the Registrar General has submitted the Certificate dated 12.10.2004, as per the requirements of Chapter XXX, Rule 8 of the Rules of the Court, 1952. The said Certificate is quoted below:

"I HEREBY CERTIFIED THAT no intimation has been received by this Court from any other High Court or any District Court of any grant of Probate of any Will or Letter of Administration of the property and credits of the above named deceased with effect throughout the territory of India.

Dated this 12th day of October 2004.

         Sd.

                 Registrar General".

I have heard Shri Rupak Chauey, learned counsel for the petitioner and Shri M.N. Shukla, learned counsel for the next-of-kins mentioned at Item Nos. (b), (c) and (d) in paragraph 2 of the Testamentary Petition, and perused the record.

From the above narration of the facts, it is evident that the deceased, namely, late Shiv Shanker Mishra left behind him the persons mentioned in paragraph 2 of the Testamentary Petition including the petitioner as his next-of-kins.

The Testamentary Petition has been filed by Smt. Shashi Bala Mishra (widow of the said Shiv Shanker Mishra), mentioned at Item No. (a) in paragraph 2 of the Testamentary Petition.

As regards Ajay Mishra, next-of-kin mentioned at Item No. (b) in paragraph 2 of the Testamentary Petition, an affidavit, sworn on 6.12.2004, (Paper No. A-7) by the said Ajay Mishra has been filed through Shri M.N. Shukla, Advocate. In paragraph 2 of the said affidavit, it is, interalia, stated by the said Ajay Mishra that he has no objection if Letters of Administration is issued in the name/favour of his mother, namely, the said Smt. Shashi Bala Mishra (petitioner).

As regards Smt. Surabhi Pandey, next-of-kin mentioned at Item No. (c) in paragraph 2 of the Testamentary Petition, an affidavit, sworn on 6.12.2004, (Paper No. A-6) by the said Smt. Surabhi Pandey has been filed through Shri M.N. Shukla, Advocate. In paragraph 2 of the said affidavit, it is, interalia, stated by the said Smt. Surabhi Pandey that she has no objection if Letters of Administration is issued in the name/favour of her mother, namely, the said Smt. Shashi Bala Mishra (petitioner).

As regards Kumari Alka Misrha, next-of-kin mentioned at Item No. (d) in paragraph 2 of the Testamentary Petition, an affidavit, sworn on 6.12.2004, (Paper No. A-8) by the said Kumari Alka Mishra has been filed through Shri M.N. Shukla, Advocate. In paragraph 2 of the said affidavit, it is, interalia, stated by the said Kumar Alka Mishra that she has no objection if Letters of Administration is issued in the name/favour of her mother, namely, the said Smt. Shashi Bala Mishra (petitioner).

Pursuant to the order dated 24.9.2004, notice was issued to the Administrator General and Official Trustee, U.P., Allahabad, and the same was duly served, as is evident from the Office Report dated 13.12.2004. However, no  objection has been filed on behalf of the Administrator General and Official Trustee, U.P., Allahabad against grant of Letters of Administration in favour of the said Smt. Shashi Bala Mishra (petitioner) in respect of the estate of the deceased, namely, late Shiv Shanker Mishra.

It is, further evident that citation, as directed by the order dated 24.9.2004 was taken out in the two newspapers, namely, the newspaper "Pioneer" dated 3.12.2004 and the newspaper "Dainik Jagran" dated 2.12.2004. However, no objection/caveat has been filed by any person in response to the said citation.

As mentioned above, by the order dated 11.2.2005, the present case was treated to be a non-contentious one in view of the provisions of Chapter XXX, Rule 3 of the Rules of the Court, 1952.

From the aforesaid discussion, it is evident that there is no contest to the grant of Letters of Administration in favour of Smt. Shashi Bala Mishra (petitioner) in respect of the estate of the deceased, late Shiv Shanker Mishra.

The averments made in the Testamentary Petition are supported by the affidavit, sworn on 8.4.2005, filed alongwith Civil Misc. Application No. 82153 of 2005 (Paper No. A-11). As noted above, by the order dated 12.4.2005, the said affidavit, sworn on 8.4.2005, has been directed to be taken on record, and be read as part of and in support of the Testamentary Petition.

No one has filed any counter affidavit in reply to the Testamentary Petition and the said affidavit, sworn on 8.4.2005, filed in support of the Testamentary Petition.

In fact, as noted above, the next-of-kins, mentioned at Item Nos. (b), (c) and (d) in paragraph 2 of the Testamentary Petition, have, interalia, filed their no-objections to the grant of Letters of Administration in favour of the said Smt. Shashi Bala Mishra (petitioner).

In the circumstances, the Court is satisfied that the prayer made in the Testamentary Petition deserves to be allowed. The Testamentary Petition is accordingly allowed.

Let Letters of Administration  be granted to Smt. Shashi Bala Mishra (petitioner) in respect of the estate of the deceased, late Shiv Shanker Mishra on payment of advalorem Court fee on the estate of the deceased (late Shiv Shanker Mishra), and after the Registrar General gives a Certificate under Chapter XXX, Rule 9 of the Rules of the Court, 1952 regarding sufficiency of the Court Fee and after the requisite Administration Bond  is given by the said Smt. Shashi Bala Mishra (petitioner) as per the provisions of Chapter XXX, Rule 26 of the Rules of the Court, 1952.

I order accordingly.

Dt. 5.5.2005

safi


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.