Delhi District Court
Gp. Capt. N.K. Kapur vs . State & Others on 7 April, 2008
1
In the court of ASHWANI SARPAL, Additional District Judge,
Room No. 272, Tis Hazari Court, Delhi.
Gp. Capt. N.K. Kapur vs. State & Others
(PC no.:-196/06/03)
(Petition u/s 276 of the Indian Succession Act
for grant of Probate of Will dated 4-5-1964)
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JUDGMENT:-
1) According to the averments made in the petition, Sh. Shadi Lal Kapur father of the petitioner died on 5-5-1964 and just one day prior to his death, he executed a Will dated 4-5-1964. He had left behind his wife (respondent no.2), two daughters (respondent no.3 and 4) and two sons (petitioner and respondent no.5). Except petitioner, all other legal heirs are residing in USA. Deceased was the owner of property no. A-12, Gulmohar Park also.
2) It is also stated in the petition that petitioner was having knowledge of the Will of deceased but that was in possession of respondent No. 2 and she intentionally did not show or forwarded the original Will to the petitioner stating that it was not registered so was not valid and petitioner had no reason to disbelieve the respondent no. 2 as she was his mother and being executor was managing the estate of the deceased. Respondent no. 2 thereafter has settled down in USA since 1982.
3) The original Will came into the possession of the petitioner in 1998 i.e. 35 years after the death of Sh. Shadi Lal Kapur when respondent no. 2 had visited 2 India. According to the Will, respondent no. 2 has only 'life interests' in the property situated at A-12, Gulmohar Park, New Delhi whereas petitioner and respondent no.5 Dalip Kapur are beneficiary in equal shares.
4) Petitioner filed the present petition on 8-1-2003 for the relief of grant of Probate on the basis of the Will of Sh. Shadi Lal Kapur in his favour. This petition was lateron got amended to incorporate the fact that property no. A- 12, Gulmohar Park, New Delhi is the same property which is described in the Will as allotted to in the Times of India Officers Co-operative Group Housing Society and was built after death of his father.
5) The notice of this petition was sent to the respondents as well as to the State. Despite services when respondents did not choose to appear in the court then they were proceeded ex-parte by my ld. predecessor. The general public was also informed through citation published in the newspaper and the State was also served but no one on behalf of the State or on behalf of the general public appeared to contest the claim made by the petitioner. The valuation report of property in question is assessed by the office of SDM, Hauz Khas at Rs.91,29,979/-.
6) Petitioner in order to prove his case examined himself and filed his own affidavit in which he corroborated the averments made in the petition. He also filed his additional affidavit twice with some documents and letters purported to be written by respondent no.2. The death certificate of Sh. Shadi Lal Kapur is Ex. PW1/2. In his second additional affidavit, petitioner specifically stated that his mother respondent no.2 despite various requests had refused to seek probate of the Will. Petitioner relied upon letters of respondent no.2 Ex. PW1/3 to 5 from it can be inferred that respondent no.2 despite appointed as an executor of the Will by the testator did not choose to take interest and infact declined to get the Will enforced on some pretexts. Instead she started claiming ownership in the property in her purported Will Mark-J despite having knowledge that she is only having life interest in it. Though petitioner admittedly had not issued any notice to respondent no.2 to obtain probate but 3 from the contents of the letter and non appearance in this court despite service of summons prima facie prove that respondent no.2 is shirking her responsibility to execute the Will as per last wishes of the deceased. She has only life interest in the property in question whereas petitioner and respondent no.5 shall be the actual beneficiary of the same after her death.
In the Will, testator Sh. Shadi Lal Kapur had stated that in case of any dispute between legal heirs, the matter shall be decided by the three trustees named therein and no matter shall go to the court unless is decided by minimum two trustees. It is further mentioned in the Will that in the event of any trustee resigning/leaving, the other two trustees shall nominate third one and his wife i.e. respondent no.2 shall have a say in the approval of that new trustee. However this clause in the Will cannot be enforced now in the present circumstances because from the application under Order 6 Rule 17 CPC filed by the petitioner supported by an affidavit, it has also come on record that two of the trustees have already died and one alive trustee is the husband of the attesting witness who alone can not appoint any other person to decide the dispute because as per Will atleast two named trustees have to appoint third one. Moreover respondent no.2 wife of testator is not coming to court and she will have say in appointment of third trustee so due to these facts and circumstances, only one trustee who is alive can not take up the matter and decide the dispute. Accordingly court has to deal with the issue in question alone.
7) Petitioner also examined Smt. Kanta Adwani, attesting witness of the will Ex. PW-2/1 through Local Commissioner who in her statement identified the signature of the deceased which was put on the Will in her presence and she also signed the Will as an attesting witness. This witness specifically stated that the testator was in the fit state of mind and was not under any pressure or any undue influence at the time of execution of this Will.
8) Will was executed in year 1964 whereas the present petition was filed in court in year 2003. However the same cannot be termed as time barred 4 because law of limitation is not applicable in probate proceedings as held in cases Kanwal Malhotra vs. State 125(2005) DLT 281 and Balwant vs. Mainabai AIR 1991 M.P. 11. From the statements of the petitioner and attesting witness, the Will Ex. PW-2/1 is thus fully proved as the last Will of deceased Sh. Shadi lal Kapur. The evidence of the petitioner and attesting witness has remained unrebutted and unchallenged and I find no ground to disbelieve them and find no circumstances to doubt the validity and genuineness of the Will Ex. PW-2/1 especially when other legal heirs of the deceased have not raised any objection and have chosen not to appear in the court.
9) Para no. 7 of the Will Ex. PW-2/1 point out that respondent no. 2 has been given the duty to execute the Will as per wishes of the testator. She was directed to pay the balance amount, construct a building in particular manners, pay all the debts, draw rent and retain the life interest and after her death the property had to go to her two sons in equal shares. Since respondent no.2 has not come forward to inform the court that she is complying with or had honoured the wishes of the deceased so the court is compelled to appoint any other person in her place for care and protection of the property in question. The executor of the Will i.e. respondent No. 2 is still alive who shall have the life interest in the property so the petitioner and another son of the deceased i.e. respondent no.5 will acquire the share in the property in question after death of respondent no.2 only. As respondent no.2 is settled in USA for last number of years and nothing has come on record that she is maintaining, managing and taking care of the property in question so in such situation an executor can be appointed by the court. In this regard reliance also can be placed upon the decision of Delhi High Court in case Smt. Shanti Rani Jain vs. State 1995(1) Civil Court Cases 381
10) After considering the merits and the evidence led by the petitioner, the present petition is allowed and Probate annexed with the copy of the Will Ex. PW-2/1 is granted in favour of the petitioner in respect of the immovable property bearing House No. A-12, Gulmohar Park, New Delhi subject to his 5 furnishing requisite court fee in terms of valuation report on record and by completing other necessary formalities. An inventory of the property of the deceased shall be exhibited in the court within six months from today and a statement of account shall be filed within one year. It is further clarified that question of right, title and ownership of the property as well as share of the respective parties in the property mentioned above is not decided by this court. File be consigned to record room.
(ASHWANI SARPAL)
Date: 7-4-2008 ADDITIONAL DISTRICT JUDGE
Delhi