Mukesh Kumar Gupta vs Smt. Prabha Vaithiyanathan and Others

This appeal is directed against the judgment and order dated 8th January, 2008 passed by the learned single Judge dismissing FAO No. 7/2008 filed by the appellant.

The facts leading to the appeal are as follows:

The first respondent is the wife of one late V. Vaithiyanathan. On 22nd December, 1992 late Vaithiyanathan poisoned his two daughters and attempted to murder his wife. The two daughters unfortunately died, but the wife survived the assault. Immediately thereafter Vaithyanathan committed suicide.

Late Vaithiyanathan had executed a Will on 2nd December, 1992 I,e, approximately 20 days prior to the date of incident, under which he disinherited his natural heirs from his estate and bequeathed the same to the Indian Red Cross Society. The first respondent informed the Indian Red Cross Society about the bequest but the Red Cross Society refused to accept the bequest on the ground that the circumstances under which the bequest was given effect to would not be in consonance with the principles of charity.

The first respondent thereafter filed a petition for Letters of Administration with respect to the movable and immovable properties left behind by the deceased. The appellant, who is an advocate by profession, opposed grant of the bequest contending that he was the executor under the Will and notwithstanding the fact that Red Cross Society declined to accept the bequest he was entitled to oppose the grant of Letters of Administration. He pleaded that since the first respondent was disinherited under the Will and since Indian Red Cross Society was not accepting the bequest, the property must escheat to the government. The Trial Court repelled the challenge and granted Letters of Administration to the wife. The appellant then preferred FAO No. 7/2008 which came to be dismissed by the learned single Judge by the order under challenge in this appeal.

Learned Counsel appearing for the appellant contended that the fact that the beneficiary did not accept the bequest made under the Will is not sufficient to attract the provisions of Section 105 of the Indian Succession Act, 1925. He submitted that the view taken by the Trial Court which has been confirmed by the learned single Judge that the testament made by the testator would lapse when the beneficiary renounces or declines to accept the benefit under the same and the same makes the Will so executed incapable of taking effect, amounts to adding the words to Section 105 of the Act. He also submitted that in the present case Section 29 of the Hindu Succession Act of 1956 would be attracted as the testator had not left any heir qualified to succeed the estate. According to him since the testator had disinherited the first respondent from his estate under the Will dated 2nd December, 1992, she must be deemed to be disqualified to receive the estate and the estate is liable to be escheated to the State.

We find the submissions of the learned Counsel to be devoid of any merit. In our opinion the appeal is totally frivolous and amounts to abuse of the process of law. In the present case the legatee has declined to accept the testator''s property and therefore the legacy has lapsed in the same way as it lapses when the legatee does not survive the testator. Since the bequest has failed, succession has to be intestate and would be governed by the provisions of Hindu Succession Act. However, the submission of the learned Counsel is that the first respondent has been disinherited by her husband under the Will and therefore it should be presumed that there is no heir qualifying to succeed to his estate and such property shall devolve on the government. We are afraid that the submission is based on a complete misreading of the provisions of Hindu Succession Act. Section 27 of the Hindu Succession Act provides that if any person is disqualified from any inherited property under the Act it shall devolve as if such person had died before the testator. Section 28 provides that no person shall be disqualified from succeeding any property on the ground of any decease, defect, or deformity or save as provided in any Act or any other ground whatsoever. The Section thus discards any of the grounds leading to exclusion from inheritance on any ground whatsoever except as provided in the Hindu Succession Act, 1956. In the present case the learned Counsel appearing for the appellant was unable to show any provision under the Hindu Succession Act under which the heirs of the deceased can be said to be disqualified to succeed the estate of the deceased. Under the circumstances, the provisions of escheat u/s 29 of the Hindu Succession Act are not attracted to the facts and circumstances of the present case. In our opinion there is no ground made to warrant interference with the impugned judgment. The appeal has no merit and is accordingly dismissed with costs, quantified at Rs. 10,000/- to be deposited with the Delhi High Court Mediation and Conciliation Center by the 15th of July, 2008.