Delhi District Court
Rakesh Mehta vs The State And Ors on 19 March, 2024
IN THE COURT OF SHRI RAJESH MALIK,
ADDITIONAL DISTRICT JUDGE -06: CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
PC No. 06/2018
IN THE MATTER OF:-
Shri Rakesh Mehta
S/o Late Sh. Gian Chand Mehta
R/o R-550, 1st Floor,
Shanker Road, New Delhi - 110060
...........PETITIONER
VERSUS
1. The State
2. Sh. Suresh Mehta (Now Deceased)
S/o Late Sh. Gian Chand Mehta
Through his LR's
a. Smt. Radha Mehta
W/o Late Sh. Suresh Mehta;
b. Sh. Sourabh Mehta
S/o Late Sh. Suresh Mehta
Both R/o R-550, Ground Floor,
Shanker Road, New Delhi- 110060
2nd Address:
C/o Yashpal Sharma
2/14-16, Rattan Nagar,
Gaushala Marg, New Rohtak Road,
Karol Bagh, New Delhi - 110005
PC 06/2018
Rakesh Mehta vs The State Page No. 1/12
3. Smt. Renu Anand
D/o Late Sh. Gian Chand Mehta
W/o Major I.R. Anand
R/o 13/6, Old Rajender Nagar,
New Delhi - 110060
4. Smt. Meenu Bhalla
D/o Late Sh. Gian Chand Mehta
W/o Sh. Satish Bhalla
R/o 601, Start Apartments,
Old Prabhadevi Road,
Mumbai - 400025
.........RESPONDENTS
Other Details :
Date of Institution : 25.01.2018
Date of Reserving Judgment : 23.02.2024
Date of Judgment : 19.03.2024
Decision : Petition Allowed
PETITION UNDER SECTION 276 OF THE INDIAN
SUCCESSION ACT, 1925
JUDGMENT:
1. The petitioner is the son and executor of the will dated 29.04.2004 and has filed the present petition under Section 276 of the Indian Succession Act, 1925 for grant of probate in respect of the registered will dated 29.04.2004 of Late Smt. Shiela Mehta (hereinafter mentioned as the testator). PC 06/2018 Rakesh Mehta vs The State Page No. 2/12
2. According to the petition, the testator Sheila Mehta was the mother of the petitioner (executor). She died on 06.10.2013. She left behind her following legal heirs:-
A) Sh. Rakesh Mehta; (Son and executor of the will) B) Sh. Suresh Mehta; (Son) C) Smt. Renu Anand; (Daughter) D) Smt. Meenu Bhall (Daughter)
3. It is averred that the testator Shiela Mehta executed the registered will dated 29.04.2004, whereby she bequeathed the first floor of the property no. R-550, Shanker Road, New Delhi-
110060 in favour of the petitioner; that the petitioner was appointed as the sole executor of the impugned will; that at the time of making this impugned will, the deceased was of sound disposing mind and signed the will in presence of the two attesting witnesses namely Sh. Manoj Kumar Malhotra, S/o Late Sh. S.P. Malhotra and Shri H.K.Aneja, S/o Late Shri O.P. Aneja; that the witnesses also signed and attested the will at the same time in the presence of the testator and each other; that the petitioner being the beneficiary as well as executor of the said will is entitled to obtain a probate in respect of the will dated 29.04.2004; that as per the impugned will, a trust namely M/s Suresh Mehta & Sons Benefit Trust (Regd.) was to be formed/constituted to manage the share of Suresh Mehta; that the petitioner being legatee of the impugned will is entitled to obtain the probate in respect of the first floor portion and half undivided PC 06/2018 Rakesh Mehta vs The State Page No. 3/12 share in the land underneath of the property no. R-550, Shanker Road, New Delhi as per the will.
4. The respondent no. 2(a) (as per the amended memo of parties) contested the present petition and averred that the schedule of properties filed with the petition is not correct; that the petitioner is playing fraud upon the respondent no.2 (a), i.e. the wife of the deceased respondent No.2; that the petitioner is seeking probate of the first floor and undivided share in the land underneath the property No. R-550, Shanker Road, New Delhi- 110060, however, as per the will with regard to the immovable property, the intention of the testator was as follows:
"...after my death House No. R-550, Shanker Road, New Delhi - 110060 shall vest and devolve to my sons in the following manner:-
Ground Floor : Sh. Suresh Mehta First Floor : Sh. Rakesh Mehta..."
5. It is averred that the intention of testator may be gathered from:-
"...in case of any further additional construction on the said property i.e. No. R-550, Shanker Road, New Delhi- 110060 than Ground & First Floor, 2/ 3 rd (two/third) of such additional construction will go to the said trust and 1/ 3 rd (one/third) to Sh. Rakesh Mehta..."
6. With regard to the sale of the immovable property mentioned in the will, the testator intended that:- PC 06/2018 Rakesh Mehta vs The State Page No. 4/12
"...In case the said property i.e. R-550, Shanker Road, New Delhi-110060, is sold the sale proceeds there shall be shared in the following manner:-
55% (fifty five) per cent : Sh. Suresh Mehta and Son Benefits Trust.
35% (thirty five) per cent : Sh. Rakesh Mehta. 5 % (five) per cent : Smt. Meenu Bhall.
5% (five) per cent : Smt. Renu Anand...."
7. It is averred by the R-2(a) that the will has to be probated in totality and it can not be probated in bits and pieces. It is averred that the will has already been acted upon even prior to filing of probate with constitution of the Trust Deed dated 13.02.2014; that the deceased R-2 Suresh Mehta was admittedly a person of unsound mind and the alleged trust deed was meant for his benefit, but the petitioner had always been harassing the respondent no.2; that under the provisions of Section 49 of Indian Trusts Act, this court should take control of the Trust which was created for the benefits of the deceased Respondent No.2.
8. During arguments, Ld. counsel for R-2(a) submitted that the property mentioned in the will devolved upon the testator through the will dated 28.01.1993 executed by Shri Gyan Chand Mehta i.e. the husband of the testator. It is submitted that unless the said will dated 28.01.1993 is probated, no right devolves upon the testator to execute the present impugned will. PC 06/2018 Rakesh Mehta vs The State Page No. 5/12
9. On the basis of the pleadings of the parties, the following issues were framed:
i) Whether the registered will dated 29.04.2004 is last and genuine will of Smt. Shiela Mehta ? OPP
ii) Relief.
10. The petitioner examined himself as the PW-1. He also examined the attesting witness Shri Manoj Kumar Malhotra as the PW-2.
11. PW-1 exhibited the impugned will as Ex. PW-1/1.
12. The attesting witness i.e. PW-2 tendered his evidence affidavit and in his evidence affidavit he deposed that the testator signed the said will in his presence as well as in the presence of Shri H.K. Aneja. He identified the signatures of the testator. He identified his signatures and the signatures of Shri H.K. Aneja, Advocate. He deposed that the testator has signed the will in his presence and he has also signed the same in the presence of the deceased testator and Shri H.K. Aneja, Advocate. He stated that they all signed the will at the same time, date and place in presence of each other. The testator had also affixed her photograph on the top of the will in his presence. He deposed that he, the testator and Shri H.K. Aneja signed the back page of the impugned will before the concerned Sub Registrar. He identified the signatures of the testator and signatures of Shri H.K. Aneja, Advocate. He deposed that the testator presented the said will for registration before the Sub Registrar-III, Asaf Ali Road, New PC 06/2018 Rakesh Mehta vs The State Page No. 6/12 Delhi and they all appeared before the Sub-Registrar concerned and the said will was registered in the Office of the concerned Sub Registrar.
13. He was cross-examined by Ld. counsel for R-2 (a). During his cross-examination, he deposed that he had read the will once before the testator before she signed the same.
14. The respondent No. 2 (a) examined herself as RW-1 and tendered her evidence affidavit as Ex. RW-1/A. During her cross-examination, she admitted the signatures of the testator on the will i.e. Ex. PW-1/1 at the points A, B, C, D and E and she recognized those signatures. She also stated in her cross-examination that she went through the impugned will Ex. PW-1/1 on asking of her husband, however, she deposed that she could not recall that as per the will, the ground floor was given to her husband and the first floor was given to his brother in law i.e. the petitioner. She further admitted that her mother in law Shiela Devi i.e. testator executed the will Ex. PW-1/1.
Findings on Issues:-
15. Issue No. (i) : Whether the registered will dated 29.04.2004 is last and genuine will of Smt. Shiela Mehta ? OPP Finding : The onus to prove this issue lies upon the petitioner. To discharge his onus, the petitioner examined the attesting witness to the impugned will. The attesting witness has PC 06/2018 Rakesh Mehta vs The State Page No. 7/12 deposed that the testator signed the will in his presence and he also attested the will in presence of the testator.
16. As per the Section 63 of the Indian Succession Act, which talks about the execution of unprivileged Wills, the testator shall sign the will and shall put his signatures in a manner that it was intended thereby to give effect to the writing as a will. The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will and each of the witness shall sign the will in presence of the testator.
17. In accordance with the Section 68 of the Indian Evidence Act, the petitioner examined one attesting witness. The attesting witness i.e. PW-2 was cross-examined, but nothing favourable to the respondent no.2(a) could be elicited in the cross-examination of PW-2. Further, in the cross-examination of the R-2(a), she admitted that her mother in law i.e. Late Shiela Mehta i.e. testator executed the will i.e. Ex. PW-1/1. Thus, in view of the testimony of the attesting witness and the admission regarding execution of will by the contesting respondent No. 2(a), the registered will dated 29.04.2004 is found to be the last and genuine will of Smt. Shiela Mehta. Thus, the issue no.1 is PC 06/2018 Rakesh Mehta vs The State Page No. 8/12 decided in favour of the petitioner.
Is the Probate of partial will permissible:
18. The petitioner has sought the probate of the will in respect of the entire first floor portion and half undivided share in the land underneath of the suit property. It would thus be seen that the petitioner has sought a partial probate of the will. Reading the will as a whole shows that the testator in her will has dealt with the entire suit property. Though, the first floor has been bequeathed to the petitioner, but the will talks about the sale of the property as a whole, and in-fact, talks about the percentage of sale proceeds to be given to the beneficiaries of the will. Now, the question arise as to whether the will can be probated partially?
19. In the matter of Vrandavanla Goverdhan Lal Pitti and... vs Kamlabai Goverdhan Lal and Ors. AIR 1970 AP 109, it was held that probate of the entire will must be applied for, unless there are any facts justifying the prayer for an exception.
20. Mt. Gkirija Bala vs Manindra La AIR 1927 Cal. 654 is a case which is an authority for the proposition that as a rule in all cases of probate or the letter of administration must be PC 06/2018 Rakesh Mehta vs The State Page No. 9/12 taken for the entire estate.
21. Here, this court refrains itself to give interpretation to the clauses of the will as the same is not necessary to decide the authenticity and validity of the will. However, it is observed that the circumstances of the present will does not warrant any partial probate. Thus, the prayer of the petitioner to grant probate in respect of entire first floor only is declined.
22. So far as the plea that the will of the husband of the testator has not been probated is concerned, it is observed here that it is a settled proposition of law by the judgment of the Hon'ble Supreme Court in the matter of Kanta Yadav vs Om Prakash Yadav Civil Appeal No. 5823 of 2019, wherein it has been held that if the will is made in Delhi relating to the property in Delhi, no probate is required. Thus, there has been no need to get the probate of the will of the husband of the testator.
23. It is further observed here that the testator in the present will has bequeathed the properties to the beneficiaries with some conditions. However, this court is only concerned with the genuineness and authenticity of the will and has no jurisdiction to pass any remarks on merits regarding the title of the property and how it would be devolved upon the PC 06/2018 Rakesh Mehta vs The State Page No. 10/12 beneficiaries. It has been settled by the Hon'ble Supreme Court in the matter of Kanwaljeet Singh Dhillon vs Hardyal Singh Dhillon & Ors. (2007) 11 SCC 357 that the issues whether testator had the authority to dispose of the property bequeathed by him or whether such property was joint ancestral property or acquired properties, do no fall under jurisdiction of the probate court as the title of the property is to be decided by the civil courts.
24. As a result, the petitioner has been able to prove the will dated 29.04.2004. This court finds the will authentic and genuine. However, this court is inclined to give the probate of the will dated 29.04.2004 in respect of the entire property, not in respect of the first floor. Let the probate certificate be issued in favour of the petitioner (executor) in respect of the entire property no. R-550, Shankar Road, New Delhi-110060 on payment of the court fees and furnishing of administration-cum- surety bond. The petitioner (executor) is directed to file an inventory within 06 months from the date of grant of probate, containing a true estimate of the property in possession and also all the debts owing by the deceased testator and shall in like manner within one year exhibit an account of estate showing the PC 06/2018 Rakesh Mehta vs The State Page No. 11/12 assets which have come into her hands and the manner in which they have been applied or disposed of.
25. Before parting with the present matter, it is clarified here that this judgment cannot be put to any use unless formal Certificate of Probate is issued on filing of court fees and administration-cum-surety bond.
26. File be consigned to Record Room as per rules.
Announced in open Court
Dated: 19th March 2024 (RAJESH MALIK)
Addl. District Judge-06 (Central),
Tis Hazari Courts, Delhi
PC 06/2018
Rakesh Mehta vs The State Page No. 12/12