CIC: DDA is required to clarify its policy on acceptance of Wills, means to ascertain their genuineness & the fact that they were last testament of the deceased; An adversely affected party has reason to know the rationale behind the decision u/s 4(1)(d)
Information sought and background of the case:
Vide RTI application dated 21.03.2015, the appellant sought information as under:-
“The Property bearing No. C-26, Geetanjali Enclave, New Delhi-17 was mutated in the name of Late Deepak Dua and Conveyance Deed was executed in the name of Late Deepak Dua based on alleged will dated 18.11.1972 executed by Late Sardari Lal Dua. Appellant’s brother Sh. Deepak Dua passed away on 19.10.2014, without executing any will. Hence, the appellant and her younger sister namely Poonam Ahuja have become joint owners of the said property. RTI application was filed asking eleven questions about the execution of Will dated 18.11.1972 & 29.08.2001. Some queries also related to mutation of the property concerned.”
Having not received any response with CPIO, the appellant filed first appeal dated Nil. Dy. Director (CS)/DDA/FAA vide order dated 16.08.2016 stated as follows:-
“....it is to inform that appellant’s queries from SI. No. 1 to 7 are not covered within the meaning of the “information” as defined under section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of RTI Act, 2005 and the information in r/o query at SI. No. 8 is as under:-
Sh. Damodar, Assitant (now retd.) and Sh. Tej Pal Singh, Asst. Director. (now retd.).”
Feeling aggrieved as dissatisfied, the appellant approached the Commission.
Facts emerging in Course of Hearing:
Both the parties are present and heard at length.
The appellant submits that the property in question bearing no. C-26, Geetanjali Enclave, New Delhi-17 was mutated in favour of the present recorded owner without her consent. It is her contention that all legal heirs are required to grant a ‘No Objection’ as a condition precedent to any mutation in property records. She submits that the letters by DDA to her as well another legal heir seeking their consent for grant of mutation was sent on wrong address. It is her contention that it wasn’t a coincidence that both letters to different recipients were sent on a wrong address. On the other hand, the respondent submits that the mutation was done as per the last recorded will which was registered. It is the contention of the respondent DDA that there is no requirement of NOC while acting on the basis of a registered testament/ will. To this, the Ld. Counsel for appellant question as to how DDA would check if the produced will was the last such recorded testament of the deceased. She points that NOC is the only way with DDA can check the authenticity of a will before assuming it to be true and last will.
Law provides that the desire of deceased is paramount in devolution of his/ her estate. Section 213 of the Indian Succession Act lays the law on the point in hand:
Section 213 - Right as executor or legatee when established: (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in 1[India] has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. .....
As per mandate of law; a will/ testament cannot neither be acted upon nor believed to be true unless a competent Court grants probate of the will thereby testifying
- the genuineness of the Will
- the fact, that the Will was the last will of the testator.
However, the having analysed the statutory position, a division bench of the then High Court of Punjab at Delhi in Behari Lal Ram Charan vs. Karam Chand Sahni and Ors. (15.09.1966 - PHHC): MANU/PH/0030/1968 expounded that a claim can be instituted in Delhi on the basis of a testament without obtaining probate. It was held:
3. Agreeing with the view of Falshaw J., we hold that in a suit instituted in Delhi it is not necessary to obtain probate of a will before any claim could be based on that will. .........
The aforesaid judgment is applicable as regards suits instituted in Delhi; however a person applying for mutation before DDA on the basis of a Will is not instituting a suit. It is for the DDA to decide and devise mechanism for ascertaining that no fraudulent claim is passed. Merely because a will is registered as per the Registration Act does not prohibit the testator from making another subsequent Will in his / her lifetime. In such case, how DDA would decide the claim without calling for a nod from all other interested persons who may have acquired interest in the property under some other Will executed later than the one presented before DDA?
In light of the aforesaid, Commission finds that DDA is required to clarify its extant policy on acceptance of Wills and means to ascertain their genuineness as well as the fact that, they were last testament of the deceased. Being an adversely affected party, the appellant has reason to know the rationale behind the decision of DDA under Section 4(1)(d) Every public authority shall provide reasons for its administrative or quasi-judicial decisions to affected persons. of the RTI Act. The respondent DDA shall clarify the aforesaid issue within 2 weeks. In addition, the PIO shall further furnish information to the appellant under a revised reply clearly mentioning:
(i) The chronological sequence/chain of transfer of property in question.
(ii) Basis of all recorded mutations granted till date as regards property in question.
(iii) Whether any NOC was sought by DDA from appellant, Ms. Neelam Sethi & her younger sister Ms. Poonam Ahuja before effectuating last mutation of the property in question.
(iv) Proof of despatch of aforesaid letters/ notices on point no. (iii).
(v) Copies of policy/instructions/ circular etc. as followed by DDA on the issue of acceptance of registered & unregistered Wills for grant of mutation in property records.
Decision shall be complied within 02 weeks. Intimation of compliance shall be transmitted to the Commission by 31.08.2018.
The appeal is allowed in aforesaid terms.
Citation: Ms. Neelam Sethi v. DDA in F. No.CIC/DDATY/A/2017/130398, Date of Decision: 01.08.2018