Delhi District Court
Sh. Janak Raj Kapoor vs State on 29 September, 2021
IN THE COURT OF SHRI UMED SINGH GREWAL: ADDITIONAL
DISTT. JUDGE02 (WEST): TIS HAZARI COURTS: DELHI
PC No. 15884/16
CNR No. DLWT010002852014
1. Sh. Janak Raj Kapoor
S/o Late Sh. Om Prakash Kapoor,
2. Smt. Kamal Kapoor
W/o Sh. Janak Raj Kapoor
Both R/o First Floor, 34/8, 34/9,
Ashok Nagar, Delhi.
....Petitioners
Versus
1. State
2. Bimal Kapoor
S/o Late Sh. Om Prakash
R/o IInd Floor, 34/8, 34/9,
Ashok Nagar, Delhi.
3. Vinod Kapoor
S/o Late Sh. Om Prakash
R/o 2, Ryegate Cerscent
Leicester Birstall,
U.K. LE43HL
4. Kuldeep Kapoor
S/o Late Sh. Om Prakash
R/o Ground Floor, 34/8, 34/9,
Ashok Nagar, Delhi.
PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 1 of 40
5. Smt. Usha Vasudeva (deceased)
W/o Sh. Ravi Vasudeva
D/o Late Sh. Om Prakash Kapoor,
R/o C18, First Floor, Om Vihar,
Gulab Bagh, Uttam Nagar,
Delhi110059.
Deceased / LR's:
(i). Ravi Kant Vasudeva
S/o Sh. Lakhmi Das
R/o C18, First Floor, Om Vihar,
Uttam Nagar, Delhi.
(ii). Nitin Vasudeva (Son)
S/o Sh. Ravi Kant Vasudeva
R/o C18, First Floor, Om Vihar,
Uttam Nagar, Delhi.
(iii). Anandita Dhawan @ Monica (Daughter)
W/o Sh. Ashwini Dhawan
R/o 1/24, Ashok Nagar,
Delhi.
6. Smt. Shashi Malik
W/o Sh. Arun Malik
D/o Late Sh. Om Prakash Kapoor
R/o KD262, Pitampura,
New Delhi110034.
7. Smt. Dolly Rawal
W/o Sh. Inderjeet Rawal
D/o Late Sh. Om Prakash Kapoor
R/o H431C, Palam Vihar,
Gurgaon122017.
....Respondents
PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 2 of 40
PETITION UNDER SECTION 276 OF THE INDIAN
SUCCESSION ACT 1925 FOR GRANT OF PROBATE IN
RESPECT OF THE ESTATE OF LATE SH. OM
PRAKASH KAPOOR IN RESPECT OF WILL DATED
21.06.2011
Date of filing of the case : 27.10.2014.
Date of reserving the judgment : 25.09.2021
Date of pronouncement of Judgment : 29.09.2021
JUDGMENT
1. This is a petition under section 276 of Indian Succession Act, 1925 for grant of probate in respect of estate of late Sh. Om Prakash Kapoor (hereinafter referred to as deceased) qua the registered will dated 21.06.2011.
2. Petitioner's case is that petitioner no. 1, respondent nos. 2, 3 and 4 are sons and respondent nos. 6, 7 and original respondent no. 5 are daughters of Sh. Om Prakash Kapoor. The deceased executed a will which was registered on 21.06.2011 in the office of SubRegistrar and the same was witnessed by Bura Ram Dhawan and Subhash Chander Dhawan. Vide that will, all floors of shop no. 2, Old Rajender Nagar Market, New Delhi were bequeathed to petitioner no.1 and his wife/petitioner no. 2. The basement, mazanine, ground and first floors of the shop had been rented out to Syndicate Bank and it has been made clear in the will that both petitioners shall have right over the whole rent. The deceased had deposited money in Vijaya Bank, Karol Bagh vide FDR Certificate nos. 593585, 593586 & 593587 and that money was bequeathed to his daughters Smt. Usha Vasudeva, PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 3 of 40 Smt. Shashi Malik and Smt. Dolly Rawal. The ground, first, second and third floors of property no. 34/9, Ashok Nagar, Delhi110018 were bequeathed to Kuldeep Kapoor/respondent no. 4, Janak Raj Kapoor/petitioner no. 1, Bimal Kapoor/respondent no. 2 and Vinod Kapoor/respondent no. 3 respectively. They were given right to go to terrace for repair of water tanks kept there. Shop no. 14, Super Market, Ashok Nagar, Delhi110018 was bequeathed to his son Kuldeep Kapoor. Apart from bequeathing second floor of property no. 34/9, Ashok Nagar to Bimal Kapoor, the deceased had spent lacs of rupees from his own pocket for construction of factory for him.
3. Respondent nos. 2, 3 & 4 filed separate WS, but almost to the similar effect that the deceased had executed a registered will dated 12.03.1999 vide which the Shop No. 2, Old Rajender Nagar, Delhi had been bequeathed in favour of all four sons equally. In that shop, Syndicate Bank was inducted as a tenant during the lifetime of the deceased, who expired on 16.09.2013. After his death, the petitioners got their signatures on some blank and stamp papers saying that they needed the same to pursue the matter with Syndicate Bank as well as for getting the shop registered in favour of all four brothers in accordance with will dated 12.03.1999. As the petitioner no. 1 was their real brother, they did not doubt his intention. Whenever they asked him about the status of the shop, his reply always was that he was making representation and application with the Syndicate Bank and Municipal Authority and the exercise was time PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 4 of 40 consuming one. In March 2014, they came to know from their sisters that Syndicate Bank was proposing to mutate the said shop in the name of petitioners alone on the basis of three documents i.e. will dated 20.06.2011, MOU dated 06.11.2013 and letter of substitution dated 14.03.2014. But they had never executed any MOU or letter of substitution. The petitioners misused the papers which they had got signed blank from them and fabricated them into MOU and substitution letter. That is why respondent no. 2 sent a letter to the bank on 26.03.2014 to provide him a copy of those documents. Later, they came to know that the petitioners had got the shop mutated in their names in municipal records on the basis of those fabricated documents. Infact, Sh. Om Prakash Kapoor had not executed any will dated 21.06.2011 and the will propounded by the petitioners is forged, fabricated and manipulated. Moreover, the property bearing nos. 34/8 & 34/9, Ashok Nagar, Delhi were purchased by their father and out of love and affection, the sale deed regarding property no. 34/9, was got registered in the name of their mother and sale deed regarding property no. 34/8 was registered in the name of petitioner no. 1. The fact remains that both properties were purchased and owned by their father. It was their father who had got constructed houses on both plots. Respondent no. 2 had also contributed in the construction and accordingly, he was given second floor and petitioner no. 1 was given first floor.
The legal objections are that the petition is hit by section 222 of the Indian Succession Act because the petitioners have not PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 5 of 40 been appointed as executors and hence, probate cannot be granted to them. Also, the petition has not been verified by one of the attesting witness to the will and doing so is mandatory as per section 281 of the Succession Act.
4. LRs of respondent no. 5 filed WS supporting the petitioners to the effect that the will dated 21.06.2011 was executed by the deceased in his good state of health. Bimal Kapoor had entered into MOU dated 06.11.2013 which was entered in the book of notary in the presence of notary officer and all legal heirs. All legal heirs signed the MOU in the presence of each other. It is next mentioned that the MOU was ratified by the parties subsequently by executing some more documents.
5. Right of respondent nos. 6 & 7 to file objections was closed vide order dated 03.03.2016.
6. Initially, the petition was not verified by one of the attesting witness and hence, the petitioners moved an application u/o 6 Rule 17 CPC to amend the petition. It was amended to that effect and the amended petition was filed on 06.05.2016.
7. The notice of the petition was issued to State through Chief Secretary, Govt. of NCT and collector of the concerned area where the suit property was situated. The citation to the general public was published in the English daily newspaper "Statesman" dated PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 6 of 40 08.12.2014 in response to which no public person filed any objection.
8. The Tehsildar/Executive Magistrate Rajouri Garden filed valuation report in respect of property no. 34/9, Ashok Nagar assessing to be of Rs. 25,00,943/ (Rupees Twenty Five Lacs Nine Hundred and Fourty Three only). Shop no. 2, Old Rajender Nagar has been assessed to be of Rs. 2,26,88,417/ (Rupees Two Cores Twenty Six Lacs Eighty Eight Thousand Four Hundred and Seventeen only) by SDM Karol Bagh.
9. Following issues were framed on 18.07.2016: (1). Whether the Will dated 21.06.2011 executed by Late Sh. Om Prakash Kapoor S/o Late Sh. Bodh Raj is his last genuine, legal, valid Will and duly executed in his sound disposing mind? OPP (2). Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP (3). Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 1 to 5 in the written statement/objections? OPR (4). Relief.
10. In order to prove the case, the petitioner examined four witnesses.
PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 7 of 4011. PW1 Sh. Janak Raj Kapoor is petitioner no. 1 himself and he repeated the contents of the petition in his affidavit in evidence Ex.PW1/A. He relied upon following documents:
(i). Ex.PW1/1 is death certificate of Sh. Om Prakash Kapoor;
(ii). MarkA is photocopy of death certificate of Smt. Pushpa Kapoor;
(ii). Ex.PW2/A is the original will dated 21.06.2011.
(iii). MarkB is photocopy of sale deed dated 13.03.1972.
(iv). MarkC (colly.) are photocopy of his Aadhar card and of Smt. Kamal Kapoor.
PW2 Sh. Balbir Singh, UDC from the office of SubRegistrar II, Janakpuri, placed on record will of the deceased as Ex.PW2/A which was registered in his office on 21.06.2011 as document no. 3955, book no. 3, Vol. No. 79, pages 1 to 6.
PW3 Sh. Bura Ram Dhawan is one of the attesting witness who deposed that he signed the will Ex.PW2/A on 21.06.2011 as an attesting witness in the presence of testatrix and other witness Sh. Subhash Chander Dhawan, at pointA. He next deposed that the deceased was in a sound disposing mind at the time of execution of the will.
PW4 Sh. Jagdish Dhawan is the person who drafted the will Ex.PW2/1 on 21.06.2011 at the instruction of testatrix. It bears his signatures at pointB. He deposed that the testator had signed the will and also thumb marked the same in his presence and in the presence PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 8 of 40 of two other witnesses namely Bura Ram Dhawan and Subhash Chander Dhawan.
12. Respondents examined ten witnesses and their numbers are from OW1 to OW11. No witness by the number OW2 has been examined.
13. OW1 Sh. Bimal Kapoor deposed in affidavit in evidence Ex.OW1/A all the facts which are finding place in his written statement. He deposed that his father was of 82 years and seriously ill in 2011. He remained hospitalized for a considerable time in B.L. Kapoor Memorial Hospital. His condition was so bad that he was not in a position to pursue his daily routine work. He died due to burst of gall bladder. Due to his illness, lease deed with Syndicate Bank could not be renewed. Lastly, he deposed that after the death of the parents, in order to set the record straight, the parties executed gift deed nos. 21724, 21725, 21727 & 21762.
OW3 Sh. Vinod Kapoor is respondent no. 3 and he deposed that his father Om Prakash Kapoor expired on 16.09.2013 and is survived by four sons and three daughters. He had executed a will which was registered on 12.03.1999 vide which Shop no. 2, Old Rajender Nagar, was bequeathed equally in favour of all four sons. His mother Smt. Pushpa Rani Kapoor had also executed a will which is in possession of the petitioners. Their father was of 82 years and was illiterate. In and around 2011, he remained hospitalized in B.L. Kapoor Memorial Hospital. From 2010 till his death in 2013, he PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 9 of 40 remained admitted in hospitals like B.L. Kapoor Memorial Hospital, Medanta Hospital, Gurgaon, Kukreja Nursing Home and Sir Ganga Ram Hospital. The medical record is in the possession of the petitioners. Rest of the deposition is repetition of the contents of the written statement.
OW4 Sh. Kuldeep Kapoor is respondent no. 4 and all the contents of his affidavit in evidence Ex.OW4/A are finding place in his written statement.
OW5 Sh. Ravinder Singh, Jr. Record Medical Supervisor, Medanta Hospital, placed on record discharge summary of the deceased as Ex.OW5/1, as per which he was admitted in the hospital on 24.08.2013 and discharged on 12.09.2013.
OW6 Sh. Vivek Yadav, Jr. Assistant from the office of Sub RegistrarII, Basai Darapur, placed on record gift deed nos. 21724, 21725, 21727 & 21762, all registered in his office on 07.11.2013.
OW7 Sh. Sewajit Yadav, Record Attendant from the Department of Delhi Archives placed on record wills of Sh. Om Prakash Kapoor and his wife Smt. Pushpa Rani Kapoor as Ex.OW7/1 and Ex.OW7/2 respectively which were registered in his office as document nos. 107 & 106 respectively on 12.03.1999.
OW8 Sh. Gaurav, Medical Record Technician, B.L. Kapoor Memorial Hospital filed medical record of the deceased as Ex.OW8/A (colly.) as per which, he was admitted on 11.11.2010 and discharged on 22.11.2010.
PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 10 of 40OW9 Sh. Onima Prasad, Medical Record Manager, Kukreja Nursing Home expressed inability to produce medical record of the deceased of 2010 as the same had been weeded out vide public notice MarkA, published in newspaper 'Pioneer' dated 16.09.2017.
OW10 Sh. Rajesh Kumar, Ahlmad from the court of Sh. Chandra Bose, Ld. ADJ14, brought the case file of a civil suit which was containing discharge summary Ex.OW8/A of the deceased, issued by B.L. Kapoor Memorial Hospital.
OW11 Sh. Alic Masih, Jr. Medical Officer, Sir Ganga Ram Hospital did not produce the medical record of the deceased as the same had been weeded out vide office order no. 143/2000 dated 29.04.2000 Ex.OW11/1.
14. Issue Nos. 2 & 3: (2). Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP (3). Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 1 to 5 in the written statement/objections? OPR
15. Both these issues are interconnected and hence, are being taken up together.
16. Ld. counsel for respondents argued that initially, the petition was not verified by one of the attesting witness and that is the PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 11 of 40 violation of Section 281 of Indian Succession Act and hence, the case be dismissed. They next argued that from 2010 till death, the testator was ill and he remained admitted in several hospitals. He was not physically and mentally fit to make will. Next argument is that the petitioners have not been appointed as executors and hence, they are not entitled to probate. Also, vide the impugned will, the property has been distributed disproportionately and hence, the will was executed in suspicious circumstances and the same has been forged, fabricated and manipulated by the petitioners.
17. It is no doubt true that when the petition was initially filed, the same was not verified by one of the attesting witness. Later, an application u/o 6 Rule 17 CPC was filed by the petitioners to verify the petition as per Section 281 of Indian Succession Act. The application was allowed on 06.05.2016 and amended petition was filed on that very day. Now the position is that the petition has been verified by both attesting witnesses namely Bura Ram Dhawan and Subhash Chander Dhawan.
In Krishan Dass Gupta Vs. State & Ors., in Test Case no. 44/1999 and Test Case No. 51/2004, decided on 16th February 2012, similar was the issue before Hon'ble High Court of Delhi which held that provisions of section 281 of the Act were only directory and not mandatory and that the probate petition cannot be dismissed on the score that it was filed without verification of atleast one attesting witness to the will. Following more was held by the High Court: PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 12 of 40 "35. The aforesaid issued was framed in view of the preliminary objection no. 2, having been taken by the respondent no. 3 that the petition is not maintainable because the petition is not properly verified in the manner and to the effect as provided in Section 281 of the Indian Succession Act, 1925. At the time of hearing, however, this issue was not seriously pressed, presumably for the reason that it is settled law that the provisions of Section 281 are not mandatory but only directory and no petition can be dismissed on the score that it is filed without the verification of at least one of the two attesting witnesses to the will.
36. In the case of Nand Kishore Rai and Anr. Vs. Mst. Bhagi Kuer & Ors., AIR 1958 All 329, it was observed as under: "Verification of a petition required under S. 281 similar to verification required of pleadings, including a plaint, under order 6 Rule 15 Civil Procedure Code and has no greater effect or value. Omission to verify, or defective verification, of a pleading is a mere irregularity within S. 99 CPC and is never fatal. The provision of S. 281 of the Succession Act is less drastic than that of Order 6 Rule 15 and an omission to verify, or a defective verification of, a petition for probate cannot have a more serious effect than that of a plaint. The provision in S. 281 is merely directory and not mandatory, i.e. noncompliance with it is not intended to lead to the rejection of the petition."
18. To the same effect are the following judgments: PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 13 of 40
(i). Kulbir Singh Vs. State & Ors., 52(1993) DLT 57; and
(ii). Khem Chand & Ors. Vs. State & Ors., (2010) 169 DLT 556.
19. In view of above citations, it can be said with certainty that if the petition has not verified by one of the attesting witness, the same cannot be dismissed on that ground alone. But in the case in hand, the petition has been verified by both attesting witnesses.
20. On mental capability of the testator to make a will, following was held by Hon'ble High Court of Delhi in Shri K.L. Malhotra v. Smt. Sudarshan Kumari & Ors., (2008) 149 DLT 783: "32. As the Wills are too frequently made by the sick and dying, the degree of understanding and memory which the law requires is such as may be reasonably expected from persons in that condition. Therefore, it is wrong to suppose that those qualities of mind should be possessed by the testator in the highest degree, position or to the same extent as before the illness in order to enable him to validly make his Will. Section 59 of the Indian Succession Act requires that the testator should have a sound mind. The sound mind referred to does not mean that the testator should have his mental faculty in their fullest vigour, but means that he should have the capacity to understand the nature of his property; memory to remember the relations and persons normally having claims on his bounty and has also a judgment. As observed by Their Lordships of Privy Council in the decision Judah v. Isolyne, AIR 1945 PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 14 of 40 PC 174, the fact that the testator was unwell when he executed the Will is a long way from saying that he had no testamentary capacity. The testator does not have to be found in perfect state of health to have his Will declared valid. It is sufficient to prove that he was able to outline the manner in which his estate was to be disposed of".
So, as per above citation, the soundness of mind of the testator should not be to its fullest vigour. It is to be of that much grade which makes him able to tell the manner in which his estate was to be disposed off.
In Ramabai Padmakar Patil vs. Rukminibai Vishnu Vekhane, (2003) 8 SCC 544, the Hon'ble Apex Court held that the objectors had not led evidence to show that at the time of execution of the will, the testatrix was suffering from any ailment which had impaired her mental faculty to the extent that she was unable to understand the real nature of the documents. The testatrix was hard of hearing and unable to walk. That condition was not taken by the Hon'ble Apex Court affecting her mental condition. In Satya Pal Sobti Vs. Achraj Nath & Ors., 2018 SCC OnLine Del 9091, the testator was suffering from cataract and agony for the demise of her son. Still, she was considered a person of sound mind to execute the will.
So, the law of the land is that the evidence should be to the effect that the testator was not mentally fit to understand the nature and consequences of his acts. That capability is correlative to his age and illness as only old and sick persons make wills generally.
PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 15 of 4021. In the case in hand, the objection is that from 2010 till death i.e. 16.09.2013, the testator was suffering from several ailments and he remained admitted in various hospitals. But treatment record of only two hospitals has been filed. As per the discharge summary Ex.PW1/X1 issued by B.L. Kapoor Memorial Hospital, the deceased remained admitted from 11.11.2010 to 22.11.2010. As per the history, he had visited that hospital with complaint of pain in right abdomen which was non radiating. Infact, he was suffering from gallbladder problem. It is next mentioned that his general condition and biochemical parameters had improved. He was discharged with pigtail catheter in situ and he was asked for readmission for surgery in 57 days. As per clinical finding appearing on the next page, he was conscious and oriented at the time of discharge. Pulse rate was 90 per min. and B.P. was 130/70. Oxygen level in his blood was 100%. So, the deceased was discharged in a good condition by that hospital where he was admitted in connection with gallbladder problem. That kind of problem, by no stretch of imagination, cannot be said to have affected his mental faculty.
As per discharge summary Ex.OW5/1 issued by Medanta Hospital, he remained admitted there from 24.08.2013 to 12.09.2013. As per medical history, he was taken there from Kukreja Hospital with the history of typeII diabetes and hypertension. He had TURP on 20.08.2013 at a local hospital for urinary retention. There was decrease in urine output in Kukreja Hospital. On investigation by PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 16 of 40 Medanta Hospital, the deceased was found to have deranged RFT and LFT. So, as per that discharge summary also, the patient was not admitted there with the problem of mental faculty. The respondents did not place on record any other medical paper of the deceased.
As per produced papers, testator had suffered from gallbladder problem in November 2010. He had made will on 21.06.2011 i.e. about seven months after discharge from the hospital. He remained admitted in Medanta Hospital in August and September 2013 i.e. after about more than one year from the date of making of the will. The produced documents do not show that the testator was not in a fit state of mind at any time in 2011, which may affect his mental faculty to understand the nature and consequence of his acts. So, the respondents have failed to substantiate their arguments on the physical and mental condition of their father.
22. Then there is objection that the petitioners have not been appointed as executors and that probate cannot be granted to them. This argument is totally repelled by Section 232 of the Act as per which the person who has not been appointed as executor, can be granted letters of administration. The case of the petitioners is well covered by Prem Prakash Vs. State & Ors., 2005(81) DRJ 157. If the case succeeds, petitioners would be granted only letters of administration and not probate as they have not been appointed executors in will.
PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 17 of 4023. The objections regarding disproportionate distribution of the property, is squarely covered by Ashok Kumar Dua vs. Ranbir Kumar Dua and Anr., 2008(104) DRJ 662 in which following was held by Hon'ble High Court of Delhi: "28. As regards the contention that the disproportionate distribution of the property held by the deceased in favour of the applicant suggests that the will is created, it should be noted that it is not for the court to refuse the grant of probate on account of the fact that the disposition is not equal or fair. A will is a volitional act indicative of one' desires and the court cannot substitute itself in place of the testator to test it on the grounds of just and reasonable".
24. Last objection is that the will is forged, fabricated and manipulated.
On this point, it has been deposed by PW1 that the will was executed by his father. PW3 is the attesting witness and he deposed that the testator had signed the will in his presence.
PW4, scribe, deposed that the will was signed by the testator in his presence. Moreover, the will has also been registered. As per the endorsement made by SubRegistrar on the back side of page no. 2 of the will, the contents of the documents were explained to the parties who understood the same and admitted them correct. OW3 was asked in cross examination to tell how the will was manipulated and he gave vague answer to the effect that his signatures were done in MCD and bank record at the time when he was not in India.
PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 18 of 40Remaining RWs also did not depose how the will is forged one. None of them deposed that the will was not bearing signature or thumb impression of their father. They did not depose that changes in the will were made by the petitioners after the same was signed by their father. They are raising suspicion on the will without any ground. Their defence is based upon conjectures which cannot take place of convincing evidence led by the petitioners.
25. In view of above discussion, it is held that the arguments of the respondents on these issues do not hold water and hence, both these issues are decided in favour of the petitioners and against respondents.
Issue No. 1:
(1). Whether the Will dt. 21.06.2011 executed by Late Sh. Om Prakash Kapoor S/o Late Sh. Bodh Raj is his last genuine, legal, valid Will and duly executed in his sound disposing mind? OPP
26. Ld. Counsel for the petitioner argued that the will Ex. PW 2/B was executed by the testator Om Prakash Kapoor and it has been attested by two witnesses namely, Sh. Bura Ram Dhawan and Sh. Subhash Chander Dhawan. It was drafted by Sh. Jagdish Dhawan. Bura Ram Dhawan and Jagdish have been examined as PW3 & PW4 respectively and they deposed that the testator had signed the will in their presence and that they had also signed in the presence of testator. They further deposed that the second witness had also PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 19 of 40 signed in the presence of testator. He next submitted that will has been duly proved as per section 63 of Indian Succession Act and section 68 of Indian Evidence Act. It has been signed on all pages by the testator. The contents of the same were read over to the witnesses and testator and when they admitted the same as correct, it was registered in the office of SubRegistrar.
The counsel next argued that the onus is on the petitioners to prove the will and thereafter onus shifts on the other party to prove that it was the result of undue influence, coercion or forged one. He next submitted that respondents did not depose that the will was not bearing the signature of the testator. Merely saying that the will is forged is not sufficient because to prove so, the respondents did not examine any witness or produce any document. The counsel next argued that authenticity of the will is enhanced by the fact that it has been registered.
Next argument is that after the death of testator, the parties were at logger heads with each other. But they settled the dispute by entering into MOU on 06.11.2013. As per the settlement, the petitioners were to get executed gift deeds in favour of respondent nos 2, 3 & 4 qua one floor each of their property no. 34/8 and in turn, the respondents were to execute gift deed of one floor of property no. 34/9, 100 sq. yards in favour of petitioner no. 2. The family settlement was acted upon by them next day i.e. 07.11.2013 by executing gift deeds in favour of each other and hence, respondents cannot be allowed to resile from MOU because it has been ratified by PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 20 of 40 them by executing subsequent documents. He further submitted that respondents have failed to prove that the MOU was forged by petitioner no. 1 by obtaining their signatures on blank papers because subsequent to MOU, they had appeared before the Sub Registrar next day to comply with the terms of MOU. He further submitted that respondents did not file any complaint to police to the effect that petitioners had forged MOU and also, they did not file case in the civil court for declaring the MOU as null and void. So they cannot be allowed to resile from MOU.
The counsel next argued that the mother of the parties had also executed a will which was registered on 12.03.1999 as Ex. DW7/2. Vide that will, respondent nos. 2, 3 & 4 were given equal share in property no. 34/9. In subsequent paragraph, it is mentioned that after the death of testatrix, the property shall be owned by her husband Om Prakash Kapoor. When there is inconsistency between two clauses in the will, the subsequent shall prevail upon the first. So, he argued, after the death of mother of the parties, their father became owner of the property no. 34/9 and in that capacity, he bequeathed the said property alongwith others vide will dated 12.06.2011.
The counsel further argued that though the testator Om Prakash Kapoor had executed a will which was registered on 12.03.1999 vide which equal share in the shop no. 2 was given to all the parties and shop no. 14 Super Market, Ashok Nagar was bequeathed to respondent Kuldeep Kapoor with the condition that he PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 21 of 40 would pay market price of one share each to petitioner and his respondents brother, but that will has been revoked by executing the will dated 12.06.2011.
27. On the other hand, the counsels for respondents argued that the petitioner no. 1 played active rule in the execution and persuaded his father to write will in his favour and so, the will has been influenced by undue pressure. On that day, he also had executed a will which was registered in the office just before the impugned will and with the same set of witnesses. But that will and presence of petitioner no. 1 in the office of SubRegistrar at the time of registration of impugned will, has been concealed not only by petitioner no. 1 but by PW3 & PW4 also.
He next submitted that mere fact that will was registered, is not conclusive proof that the same is genuine.
Next they submitted that the petitioner no. 1 had obtained signatures and thumb impressions of respondent nos. 2, 3 & 4 on some blank and stamp papers on the excuse that he would get properties mutated in their names as per will dated 12.03.1999 of their parents. But he forged those papers into MOU.
The counsels next argued that the mother of the parties vide will dated 12.03.1999 had bequeathed property no. 34/9, Ashok Nagar to respondent nos. 2, 3 & 4 and hence, the testator was not required to make will of that property. They next argued that will dated 12.03.1999 has not been specifically revoked by the will dated 12.06.2011 and hence the said will still subsists.
PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 22 of 40The counsels for respondents next argued that gift deeds were not done by the parties in pursuance to MOU but due to oral agreement between them and that is why gift deeds reflect that the stamp duty was purchased in October 2013 whereas the MOU is dated 06.11.2013.
The counsels next argued that there are contradictions in the evidence of PW1, PW3 and PW4 regarding time of their reaching in the office of SubRegistrar.
The respondents' counsels next argued that reason of bequest in favour of petitioners mentioned in will Ex. PW2/A is that they had served the testator throughout their lives. The reason of giving only one floor in property no. 34/9 to Mr. Bimal Kapoor mentioned in will is that the testator had spent lacs of rupees from his own pocket on construction of a factory for him in Bawana, Delhi. But those reasons are not finding place in the first will dated 12.03.1999. If these reasons existed, the same would have been mentioned in the first will also.
The last argument is that complete detail of will of wife of the testator is mentioned in will Ex. PW2/A. Even the document no., Vol. no. and page numbers the will are mentioned. These minute details create some suspicion on the will of the testator.
28. As per section 63 of Indian Succession Act, the will is required to be attested by two persons. The testator signed the will in presence of attesting witnesses and they also signed in the presence of PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 23 of 40 testator. To prove the will, only one attesting witness is required to be examined in view of section 68 of Indian Evidence Act. In the case in hand, the first attesting witness PW3 Bura Ram deposed that the testator had signed the will on every page in his presence and in the presence of other witness Mr. Subhash Chander Dhawan. He further deposed that they also had signed the will in the presence of testator. To the same effect is the evidence of PW4 who had drafted the will. It is pertinent to mention that Bura Ram Dhawan is cousin brother of the testator and PW4 is testator's wife's brother's son. So, they are equally related to petitioners and respondents. They had good relations with the parties. So, drafting and attestation of the will by common relatives is lending credit to the will. It has been signed on every page. After execution, it was taken before the SubRegistrar and it is mentioned on the back side of page no. 2 of the will that the contents of the documents were explained to the parties who understood the same and admitted them as correct. That endorsement is also corroborating the execution of will.
29. The will has been objected to on the ground that same has been manipulated and forged by petitioner no. 1. But respondents did not lead any evidence to the effect that the will was not bearing the signatures of the testator. They did not examine any hand writing expert to that effect. Merely taking a plea in written statement is not sufficient. It has been proved by PW2 Mr. Balbir Singh that the impugned will was registered in his office on 21.06.2011. Registration of a will is, though not a conclusive proof of its PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 24 of 40 authenticity but it lends some credit definitely because for the purpose of registration, the testator is to visit the office of a Sub Registrar which is a public office and is manned by an officer of high rank. So, it is reasonable to presume that the testator had understood the nature and purpose of his visit to the government office and what was going on in his presence. To this effect is Ashok Kumar Dua Vs Dalvir Kumar Dua & Ors. 2008 (151) DLT 469.
30. Next objection is that the MOU Ex.OW4/X1 is forged document.
It is the admitted case of all the respondents that MOU is bearing their signatures and thumb impressions. But their contention is that they had signed some blank papers and the same were converted by petitioner no. 1 into memo of understanding.
It seems that after the death of testator on 16.12.2013, the parties started quarreling on the property and they did not show any respect to his will and hence, they sat together and executed MOU Ex. PW4/4. Vide that document, the parties had agreed that the petitioners shall transfer three floors of their property no. 34/8 to respondent nos. 2, 3 & 4 and in turn, they would transfer one floor of property no. 34/9 in favour of petition no. 2.
The MOU was put to Sh. Kuldeep Kapoor in cross examination and he admitted that it was bearing his photo and that he had signed his photograph also. He admitted in so many words they had got the MOU notarized. He further admitted that petitioner had executed a gift deed in his favour on the basis of MOU and thst PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 25 of 40 he had also executed a gift deed in favour of property no. 34/9.
OW3 Vinod Kapoor is residing in London. He admitted in crossexamination that MOU was bearing his signature. He held back the specific reply that MOU was bearing his thumb impression at point X. Simultaneously, he admitted that he was present in India on 06.11.2013 i.e. on the day when the MOU was executed.
The contention of respondents that MOU is forged one cannot be accepted due to two reasons. The first is that they did not file any complaint before the police that the petitioner no. 1 had forged it. Till now, they did not file any case before any civil court for declaring the MOU as null and void. The second reason for disbelieving their contention is that the MOU has been ratified by both parties by executing gift deeds in favour of each other. It is pertinent to mention that pursuant to clauses no. 4 of MOU, the respondent nos. 2, 3 & 4 gifted the first floor of property no. 34/9, 100 sq. yards, in favour of petitioner no. 2 vide gift deed Ex. OW6/A which was registered on 07.11.2013. In pursuant to clause no.3 of the MOU, the petitioner no. 1 executed gift deeds Ex. OW6/B, Ex. OW6/C and Ex. OW6/D in favour of Mr. Kuldeep Kapoor, Mr. Vimal Kapoor and Mr. Vinod Kapoor qua the ground and second floors and roof rights of second floor of property no. 34/8.
31. By executing gift deeds in favour of each other as per the terms of MOU dated 06.11.2013, the parties ratified it just next day i.e. 07.11.2013. Now they cannot be allowed to retract MOU in view of Ravinder Kaur Grewal Vs Manjit Kaur & Ors (2020) (9) SCC PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 26 of 40 706 in which following was held:
25. Be that as it may, the High Court has clearly misapplied the dicum in the relied upon decisions. The settled legal position is that when by virtue of a family settlement or arrangement, members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their fonflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete harmony and goodwill in the family, such arrangement ought to be governed by a special equity peculiar to them and would be enforced if honestly made. The object of such arrangement is to protect the family from longdrawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family.
9....A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term " family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes succession is so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacunna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 27 of 40 party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits."
32. Vide impugned will, shop No. 14, Super Market, Ashok Nagar, was bequeathed to respondent Kuldeep Kapoor. He has also taken plea that will is not genuine. Despite taking such plea, he admitted in crossexamination that he was having possession of that shop which is based upon the documents. In next line, he admitted that he became owner of the shop on the basis of impugned will. So, he is disputing that portion of the will vide which the property was given to the petitioners but he admitting that portion of the will by which the property was given to him. He cannot be allowed to admit a document in part. By coming into possession of shop no. 14, Super Market on the basis of impugned will, respondent no. 4 has also acted upon the said will.
33. The contention of oral settlement, put forth by respondents is not believable due to following reasons:
(a) Oral family settlement has not been pleaded in written statement of any of the respondents. That plea is not contained in affidavit in evidence of any witness.
(b) Detail of the oral agreement like date, month and year of settlement, the persons in whose presence the same was entered and who were the witnesses, is not mentioned in written statements and affidavits in evidence of respondents.
PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 28 of 40(c) OW4 Kuldeep Kapoor admitted in crossexamination that the petitioners had executed gift deed in his favour regarding property no. 34/8 and he had also executed gift deed in favour of petitioner no. 2 regarding property no. 34/9. He specifically deposed that by doing so, they had acted on the basis of MOU.
(d) Petitioner no. 1 was the absolute owner of property no. 34/8. Vide three gift deeds, he transferred three floors of that property to respondent no. 2, 3 & 4 and in turn, they had given only one floor of their property no. 34/9 to petitioner no. 2. These gift deeds were totally against the interest of petitioner no. 1. Then why he acted against his own interest? The answer is mentioned in MOU to the effect that in lieu of those gift deeds, respondent nos. 2, 3 & 4 had accepted the will of their father as correct, legal, valid and last and final.
(e) It is correct that as per gift deeds Ex. OW6/A to Ex. OW6/D, the petitioner no. 1 and respondent nos. 2, 3, & 4 had purchased stamp duty on 24.10.2013 and 10.10.2013. It suggests that the parties had reached consensus on family settlement in October 2013. But they were not proceeding further without any document in writing as they had no faith in each other. Had they mutual faith, the gift deeds would have been got registered in October 2013 itself. Due to faith deficient, they entered into MOU on 06.11.2013 which fructified into registration of gift deeds on 07.11.2013.
PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 29 of 40(f) Testimony of OW1 in examination in chief is not that the gift deeds were the result of any oral agreement. Rather, he deposed in para 14 of his affidavit in evidence that the gift deeds were executed to set the record right.
34. So, it is held that gift deeds were executed pursuant to following clauses of MOU: (2). This MOU is recorded as an aide memories of the understanding arrived on 06.11.2013 between the brothers and sisters in respect of the will dated 21.06.2011 registered vide Registration No. 3955 in Book No. 3, Vol. No. 7954 on page nos. 1 to 6 with the office Sub Registrar West Delhi Janakpuri Delhi of Late Shri Om Prakash Kapoor and will dated 03.03.1999 of late Smt. Pushpa Rani Kapoor registered vide document registration no. 106, entered in additional book no. III, volume no. 05 at page nos. 83 to 84 on 12.03.1999 with the office of the Registrar Delhi.
(5). The parties herein who are brothers and sisters agree and acknowledge that the will dated 21.06.2011 and 03.03.1999 as mentioned hereinabove is the last and final will of Late Shri Om Prakash Kapoor and Late Smt. Pushpa Rani Kapoor respectively and supersedes and nullifies any other will earlier made by them.
(6). The Parties bind themselves with the will dated 21.06.2011 and 03.03.1999 of late Shri Om Prakash Kapoor and Late Smt. Pushpa Rani Kapoor.
(1). The parties agree that the Will dated 21.06.2011 registered vide Registration No. 3,955 in Book No. 4, Vol. No. 7954 on page nos.1 to 8 with the office Sub Registrar West Delhi Janakpuri Delhi is the last and PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 30 of 40 final will of Late Shri Om Prakash Kapoor and the same is binding on the parties and the parties will abide by it.
(3). Shri Janak Raj Kapoor who is the absolute owner and in possession of built up freehold property bearing no. 34/8, Ashok Nagar, New Delhi 110018 admeasuring an area of 100 sq. yds., (the property) shall execute a gift deed in respect of the ground floor, second floor and third floor of the property in favour of Shri Kuldeep Kapoor, Shri Bimal Kapoor and Shri Vinod Kapoor respectively, which is purely out of love and affection considering that the parties are real brothers.
(4). Shri Kuldeep Kapoor, Shri Bimal Kapoor and Shri Vinod Kapoor who are the absolute owners and in possession of built up free hold property bearing no. 34/9, Ashok Nagar, New Delhi 110018 admeasuring an area of 100 sq. yds (the second property) by virtue of Will dated 03.03.1999 of Late Smt. Pushpa Rani Kapoor shall jointly execute a gift deed in respect of the first floor of the second property (34/9, Ashok Nagar, New Delhi110018) in favour of Smt. Kamal Kapoor wife of Shri Janak Raj Kapoor which is purely out of love and affection considering that the parties are real brothers and Smt. Kamal Kapoor is the sister inlaw of Shri Kuldeep Kapoor, Shri Bimal Kapoor and Shri Vinod Kapoor. The gift deed to be executed by Shri Janak Raj Kapoor in favour of Shri Kuldeep Kapoor, Shri Bimal Kapoor and shri Vinod Kapoor in respect of the first property and the gift deed to be executed by of Shri Kuldeep Kapoor, Shri Bimal Kapoor and Shri Vinod Kapoor in favour of Smt. Kamal Kapur wife of Shri Janak Raj Kapoor.
35. On the issue of reaching to the office of SubRegistrar, PW1 deposed that his father desired him in the morning hours on PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 31 of 40 21.06.2011 to accompany him to the office of SubRegistrar. He clarified that morning hours meant 11 A.M to 12 Noon. He did not know when they reached the office of SubRegistrar but they remained there for about one and half or two hours. PW3 deposed that he reached alone on bike in the office of SubRegistrar at 10:00 A.M. and he became free from there at 2:00 P.M. He next deposed that testator also reached there simultaneously. PW4 deposed that he reached the office of SubRegistrar at 10.20/11 A.M. As per the evidence of PW1, his father told him at 11:00 A.M 12:00 P.M to accompany him to the office of SubRegistrar at 11 A.M. to 12:00 Noon. That time is taken as 11.30 A.M i.e. the middle of 11 A.M. to 12:00 noon. His house is situated about 30 K.M from the office of SubRegistrar. So, the father and son might have reached the office within one hour i.e. they might have reached there at about 12.30 noon. That time is slightly in variance to the time told by PW3 and PW4. But the difference is only of about two houses. The will was executed on 21.06.2011 and witnesses had appeared in the witness box in 2017. That much difference in the time is bound to occur as the memory of a witness keeps fading with the passage of time. Moreover, difference is of only two hours which cannot be said to be substantial in civil trial.
36. In pursuance to the order of the Hon'ble High Court, the petitioner no. 1 produced his will registered on 21.06.2011 i.e. on the day when the impugned will was registered in the same office. It is true that he did not disclose about that will, in the petition and PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 32 of 40 affidavit in evidence. But it should be kept in mind he is seeking probate of the will of his father and so he was required to give detail of only his father's will. He was not supposed to tell about his own will, either in petition or examination in chief. But onus was definitely upon him to disclose about his presence and his will if he was asked so in crossexamination.
When he was crossexamined, he admitted that he had accompanied his father on 12.03.1999 to the office of SubRegistrar. Even the attesting witness PW3 Bura Ram Dhawan disclosed in cross examination that petitioner no. 1 was present in the office of Sub Registrar at the time of execution of will by the testator but he was sitting out side the office. Some default has been committed by PW4 by deposing at one place in crossexamination that petitioner no. 1 was not present in the office of SubRegistrar at the time of execution of the will by the testator. But he corrected himself in cross examination dated 05.05.2017 by admitting the presence of PW1 at that time. So, the presence of petitioner no. 1 in the office of Sub Registrar at the time of execution of the will by the testator has neither been denied by petitioner no. 1 nor by the two witnesses who were present there.
It is also correct that the attesting witnesses to the will of petitioner no. 1 are Bura Ram Dhawan and Subhash Chand Dhawan i.e. the persons who attested the will of the testator also. It is also correct that the major beneficiary of the will is petitioner no. 1. But in this regard, the case of the petitioner is covered by Pentakota PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 33 of 40 Satyanarayana Vs Pentakota Seetharatnam (2005) 8 SCC 67, in which following was held by the Hon'ble Apex Court: "25. It is settled by a catena of decisions that any and every circumstances is not a suspicious circumstance. Even in a case where active participation and execution of the will by the propounders/beneficiaries was there, it has been held that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the will. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the will. This is the view taken by this court in Sridevi v. Jayaraja Shetty. In the said case, it has been held that the onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the proof of signature of the testator as required by law would not be sufficient to discharge the onus. In case, the person attesting the will alleges undue influence, fraud or coercion, the onus will be on him to prove the same and that as to what suspicious circumstances which have to be judged in the facts and circumstances of each particular case".
In cited case, one of the beneficiaries was present at the time to execution still, the will was not doubted by the Apex court.
37. Presence of petitioner no. 1 in the office of SubRegistrar at the time of execution of will by testator, his being the major beneficiary and same set of witnesses would have been the suspicious circumstances. But the will has been attested by PW3 Sh. Bura Ram Dhawan who is cousin brother of testator and was drafted by PW4 who is testator's wife's brother's son i.e. they are equally related with petitioners as well as respondents. No animosity has been alleged by the respondents against them.
PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 34 of 40The second reason of above circumstances being not the suspicious ones, is that the parties had entered into family settlement in the form of MOU on 06.11.2013 and they acted upon the said MOU by getting the same notorized and also by getting gift deeds executed in favour of each other just next day.
38. The testator is not required to give in will the reasons why he was bequeathing property to a particular person. If the reasons are mentioned, the same lend some credibility to the will. It is correct that the reasons mentioned in the will Ex. PW2/A about bequest in favour of petitioner nos. 1 & 2 is that they had served the testator throughout their whole life. The reason of giving only one floor to respondent Bimal Kapoor is that the testator had erected a factory for him in Bawana from his own funds. These reasons are not finding place in the first will dated 12.03.1999. Due to nonmention of reasons why the testator was giving property to particular heirs, it can be said, the first will was not carrying so much weight. The possible reason for nonmention of those reasons in the first will may be that by that day, the testator was not satisfied with the services rendered by petitioners to him. It is also very much possible that the testator might have erected factory for Bimal Kapoor after the execution of the first will. Reference to these reasons in subsequent will, instead of making the same weak, is strengthening it.
39. It is also correct that in para 3 of the first page of the will Ex. PW2/A, minute details of the will of the wife of the testator are PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 35 of 40 mentioned. It is pertinent to mention that the will of wife of the testator and first will of the testator were registered on the same day i.e. 12.3.1999 in the same office of SubRegistrar. So, it can be said that the testator was well aware of her will and it is very much possible that when he visited the office of SubRegistrar for registration of his subsequent will, he might be having a copy of will of his wife and that is why, the scribe, an advocate, mentioned minute details of that will in will Ex. PW2/A. So, mention of minute details of the will of the wife of the testator is not a suspicious circumstances.
40. No doubt, the property no. 34/9, Ashok Nagar, was owned by Pushpa Rani Kapoor i.e. wife of the testator. Vide Will Ex. OW7/2 registered on 12.03.1999, she had bequeathed property no. 34/9 to respondent nos. 2, 3 & 4 equally saying that she was not giving any portion in that property to petitioner no. 1 as he was already owner of property no. 34/8. It is mentioned in the subsequent clause that after her death, her husband Sh. Om Prakash Kapoor would be the sole owner of that property.
As per section 88 of Indian Succession Act, 1925, where two clauses of a will are irreconcilable so that they cannot possibly stand together, the last shall prevail. Above two material clauses of will Ex. OW7/2 can not stand together as both are inconsistent to each other because vide first clause, the property was bequeathed to respondent nos. 2, 3 & 4 and vide subsequent clause, the same property was given to the testator. So subsequent clause shall prevail over the first. As per subsequent clause, the property shall go to the PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 36 of 40 testator. So, it cannot be said that the testator was not required to make will in respect of property no. 34/9, Ashok Nagar.
41. It is also correct that the testator had executed will Ex.OW7/1 which was registered on 12.03.1999. Vide that will, he bequeathed shop no. 2, old Rajinder Nagar Market to petitioner no.1 and respondent nos. 2, 3 & 4 equally. Shop no. 4, Super Market, Ashok Nagar was given exclusively to respondent Kuldeep Kapoor where he was running a jewellery shop, with the condition that if he wanted to retain the shop, he would have to pay shares to other three brothers according to the market price prevailing at the time of settlement. The impugned will Ex. PW2/A, inter alia, also contains these two properties. As per section 70 of Indian Succession Act, an unprivileged will can be revoked by two methods. The first one is by executing another will and second is by declaring an intention in writing to revoke the will. In the case in hand, the will dated 12.03.1999 of the testator, has been revoked by both ways. The subsequent will Ex. PW2/A is covering all properties for which the will dated 12.03.1999 was made. Secondly, it has been revoked by mentioning expressly in para no. 2 of the will that the testator, vide that will, was revoking all wills and codicil made by him before that day. It is next mentioned that the will Ex. PW2/A was the last and final will. It is correct that the previous will was not revoked by expressely mentioning the document number. But the words that he was revoking all wills, mean that the revoked wills also included the will which was registered on 12.03.1999.
PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 37 of 4042. The counsels for respondents heavily relied upon: (1) Kavita Kanwar Vs Mrs Pamela Mehta & Ors. AIR 2020 SC 2614; and (2) AIR 2007 SC 1975 Benga Behera Vs Braja Kishore Nanda.
In the first cited case, the testatrix had two daughters and a son. The husband of one of the daughter had expired. She bequeathed most of the property to her younger daughter. She totally excluded the son and made only meager provision for the widowed daughter. The major beneficiary had played role in the execution of the will. The language in the will was not the language of an ordinary person. For giving some property to her widowed daughter, she had provided a circuitous route. It included that the major beneficiary was to break the property and a new construction was to be raised over the whole property including the property of which the major beneficiary was the owner. No time frame was provided when the property would be razed and when the new property would be constructed. The stipulations for new construction were not legal and the widowed daughter could not have enforced them in any proceedings. In view of these circumstances, the Hon'ble Apex court disbelieved the will.
In the case in hand, no legal heir of the testator has been excluded. Some heirs got more property than others. It is not correct to say that the only petitioners were major beneficiaries. Shop no. 14, PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 38 of 40 Super Market, Ashok Nagar was bequeathed exclusively to respondent Kuldeep Kapoor. Moreover, after family settlement, the petitioners gifted three floors of their own property to the respondents. The parties, before execution of gift deeds, had entered into MOU. These facts are clearly distinguishable from the facts of the cited case no. 1 and hence, the case law is not applicable.
In cited case no. 2, bequest was in favour of a person who was totally stranger to the family. But in the case in hand, the beneficiaries are all the legal heirs i.e. sons and daughters of the testator. So, the facts of the second cited case is are also distinguishable from the present case.
43. In view of above discussion, issue no. 1 is decided in favour of petitioners and against respondents.
Issue No. 5 (Relief):
44. The petitioners have prayed for grant of Probate/Letter of Administration in respect of the will dated 21.06.2011 executed by Late Om Prakash Kapoor. However, the perusal of the will Ex. PW2/A) reveals that petitioners have not been named as Executors therein and as such the probate, in respect of the Will in question cannot be granted in favour of the petitioners in terms of Section222 of Indian Succession Act, which provides that probate shall be granted only to an Executor appointed by the Will. In these circumstances and in view of the provisions of Section222 of Indian Succession Act, PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 39 of 40 only Letter of Administration can be issued in respect of the properties mentioned in the said Will.
Therefore, in view of the above discussion, petitioners are entitled to letters of administration in respect of the property no. 34/9, Ashok Nagar, Delhi110018 and Shop No. 2, Old Rajender Nagar, Delhi of deceased as mentioned in the will on furnishing Administrationcumsurety bond and court fees on the value of the abovesaid properties which has been assessed as Rs. 25,00,943 + Rs. 2,26,88,417 = Rs. 2,51,89,360/ (Rupees Two Crores Fifty One Lacs Eighty Nine Thousand Three Hundred & Sixty only).
Further, the petitioners are directed to file the inventory of all the immovable properties within six months and final statement of account within one year from the date of receipt of formal letter of administration. The formalities of issuance of Letter of Administration shall completed by the petitioners within six months from the date of the judgment as per Section 290 & 291 read with Section 317 of Indian Succession Act.
45. It further clarified that the question of title, share or ownership of immovable properties mentioned herein above is not decided by this Court.
46. File be consigned to the Record Room.
Announced in the open court
Today on 29.09.2021 (Umed Singh Grewal)
Addl. District Judge02 (West)
Tis Hazari Courts, Delhi
PC No. 15884/16 Janak Raj Kapoor & Anr. Vs. State & Ors. Page 40 of 40