Delhi High Court
Ashok Bajaj vs Government Of Nct Of Elhi & Ors on 8 May, 2017
Author: Indermeet Kaur
Bench: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on :01.05.2017
Judgment delivered on : 08.05.2017
+ TEST.CAS. 60/2014
ASHOK BAJAJ ..... Petitioner
Through Mr.Darpan Wadhwa, Senior Advocate
with Mr. Albert Sebastian, Ms.Sonali
Chopra and Mr. Arnav Kumar,
Advocates.
versus
GOVERNMENT OF NCT OF ELHI & ORS..... Respondents
Through Mr.Nikhil Rohtagi, Mr. Shashank
Khurana and Mr.Mohit
Khubchandani, Advocates for R-2 to
R-4.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
I.A.No.19641/2014 (u/O VII Rule 11 CPC) 1 Petitioner seeks probate of the Will dated 10.10.1976 of deceased Jagdish Lal Bajaj. The petitioner is the son of the deceased. The second son of the deceased was Rajiv Bajaj. He has since died. The respondents (No.2 to
4) are the legal representatives of Rajiv Bajaj i.e. his wife and two children. TEST. CAS. 60/2014 Page 1 of 17 Objections have been filed by them. In the course of these proceedings an application under Order 7 Rule 11 CPC had also been filed by them. 2 Arguments have been addressed on the aforesaid application. On behalf of the applicant, it is pointed out that this petition is liable to be rejected for two reasons. The first is the ground of limitation and the second is because of the contrary pleas which have been taken by the petitioner. On the ground of limitation, it is pointed out that as per averments made in the petition, the deceased had left a Will dated 10.10.1976 which was followed by a Codicil dated 14.10.1976. Even as per the own showing of the petitioner, the petitioner learnt about this Codicil from his mother in the year 1994. In the year 1994 itself, the petitioner had signed a registered Declaration Deed wherein he had given up all claims qua the share of his father in property bearing No. 1, Golf Links, New Delhi (subject matter of the Will dated 10.10.1976 and the Codicil dated 14.10.1976). Submission is that the limitation to file the present petition commenced in the year 1994. Without prejudice to this contention, the additional submission of the petitioner is that the petitioner in his petition has further stated the he became suspicious about this Will (dated 10.10.1976) in the year 2006 when his mother expired and he learnt about her Will (dated 05.05.2016) wherein one TEST. CAS. 60/2014 Page 2 of 17 third share in the suit property (owned by his mother) fell to the share of the petitioner. Submission of the applicant being that even if this submission is taken as correct limitation would even then expire on or before 05.10.2009. Present petition which has been filed in the year 2014 by no stretch of imagination can be said to be within the period of limitation. All RTI queries/responses would not extend statute of limitation; at best it can be a ground to condone laches but the statutory bar cannot be overcome. Counsel for the applicant has placed reliance upon a Judgment of the Apex Court reported as (2009) 11 Supreme Court Cases 537 Krishan Kumar Sharma vs. Rajesh Kumar Sharma to substantiate his submission that the statute of limitation is applicable to a probate petition; even presuming that the strict application of a period of three years is not to be applied. Reliance has also been placed upon the judgment of the Apex Court reported as 2010 VII AD (DELHI) 442 Basant Dayal Vs. State & Others to support the submission that the petition is time barred. Reliance has been placed upon a third judgment of the Division Bench of this Court reported as RFA 575/2014 2013 SCC Online Del 3582 Om Prakash Vs. Shanti Swaroop; for the same proposition; this petition is time barred.
TEST. CAS. 60/2014 Page 3 of 17 3 The second submission of counsel for the applicant is that contrary pleas have been taken by the petitioner (as is evident from pleadings in the present petition); the petition is liable to be rejected on this ground also. Submission being that the petitioner in the present petition [para 5(q)] has stated that the signatures of the deceased on the Codicil dated 14.10.1976 were forged and fabricated. This contention of the petitioner in the petition is distinct from the stand taken by the petitioner in the deed of declaration dated 25.08.1994 (document filed and signed by the petitioner) wherein on page 113 he has stated that the Codicil had been executed by the deceased under duress and misrepresentation. Submission being that the stand of the petitioner is conflicting, whereas in the petition he had stated that the signatures of the deceased on the Codicil were forged yet in the registered declaration deed he had set up the case that the signatures of the deceased on the Codicil had been obtained under pressure and misrepresentation. Submission being that the question of forgery is distinct from the stand of misrepresentation. These two contrary pleas also make out a case of the rejection of plaint. For this submission, counsel for the applicant has placed reliance upon a judgment of the Bench of this Court reported as (2014) 5 High Court Cases (Del) 377 2014 SCC Online Del 2962 Pankaj Bajaj Vs. TEST. CAS. 60/2014 Page 4 of 17 Meenakshi Sharma and Ors; submission being that where there is a patent contradiction as is so in this case a clear case of rejecting the plaint under Order 7 Rule 11 CPC is made out.
4 Arguments have been refuted by the petitioner. Learned senior counsel for the petitioner points out that the question of limitation is a mixed question of law and fact and especially so in view of the avermetns made in the present plaint. Submission is that for the rejection of a plaint under Order VII Rule 11 of the Code the settled legal proposition is that the averments in the plaint alone have to be looked into. There has to be a meaningful reading of the plaint. A meaningful reading of the plaint clearly show that all the times the petitioner has disputed the codicil dated 14.10.1976; this codicil has not seen the light of the day till today. On this submission of the learned counsel for the petitioner a query had been put to the learned counsel for the respondent who under instructions from his client states that the codicil is not in his possession. It appears that the codicil is nowhere in the picture.
5 Learned senior counsel for the petitioner to support his submission that the question of limitation is a mixed question of law and fact has placed reliance upon a judgment of the Apex Court reported as (2007) SCC 183 TEST. CAS. 60/2014 Page 5 of 17 C.Natrajan Vs. Ashim Bai and Another as also another judgment of the Apex Court reported as (2006) 5 SCC 658 Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust and Others. Reliance has also been placed upon 2015 SCC Online SC 751 Vaish Aggarwal Panchayat Vs. Inder Kumar as also (2014) 16 SCC 125 Surjit Kaur Gill and Anr. Vs. Adarsh Kaur Gill and Anr. Submission is that the period of three years envisaged in Article 58 would accrue from the date when the right to sue first accrues. In the instant case Article 137 of Schedule 1 of the Limitation Act would be applicable and in this case also the right to sue accrues from the date when knowledge could be imputed to the petitioner; the petition on this parameter is clearly within limitation. For the same proposition reliance has also been placed upon 167 (2010) DLT 702 Anil Singh and Anr. Vs. M.L.Ahuja and Ors. The application under Order VII Rule 11 of the Code is liable to be dismissed. Qua the second submission of the petitioner that there are variant pleas adopted by the petitioner, it is pointed out that this submission is also without merit; the declaration deed purported to have been executed by the petitioner in the year 1994 was revoked by a registered cancellation deed dated 04.6.2013; this latter document cannot be ignored. This was on the premise that the signatures of the petitioner on the declaration deed had been TEST. CAS. 60/2014 Page 6 of 17 obtained under misrepresentation. The allegation that the signatures of the deceased on the codicil are forged and the earlier plea in his declaration deed that the signatures of the deceased on the codicil had been obtained under misrepresentation can in no manner be treated as contrary in view of the fact that a registered cancellation deed has been executed by the petitioner cancelling the declaration deed of the year 1994. The arguments of the respondent are futile. The application is liable to be rejected in toto. 6 Arguments have been heard. Record has been perused.
7 There is no doubt to the settled legal proposition that for dealing with an application under Order VII Rule 11 of the Code it is only the averments which are made in the plaint which have to be read. The defence set up by the defendant cannot be looked into. The Apex Court has time and again emphasized that what has to be extracted from the plaint is a meaningful reading of the pleading and not a formal reading. It is only where the meaningful reading of the plaint discloses that the plaint is barred by limitation or for any other reason the plaint is liable to be rejected that the suit can be nipped in the bud. An elaborate inquiry into complicated questions of fact or law may not be gone into at that stage. The jurisdiction of the Court is limited to ascertaining whether on the allegations made in the TEST. CAS. 60/2014 Page 7 of 17 plaint a case for rejection or dismissal of the plaint arises under Order VII Rule 11 of the Code or not.
8 Applying the aforesaid test to the facts of the instant case, this Court is not inclined to answer this prayer in favour of the applicant/respondent. 9 This is a testamentory case wherein the petitioner before this Court is the son of late Jagdish Lal Bajaj. He is seeking a probate of the Will dated 10.10.1976 of his deceased father. The respondents before this Court are the legal representatives of the brother of the petitioner namely the legal representatives of deceased Rajiv Bajaj.
10 The testator Jagdish Lal Bajaj had died on 27.11.1976. At the time of his death he had he had three legal heirs i.e. two sons namely Ashok Bajaj and Rajiv Bajaj and his widow. The Will dated 10.10.1976 is a document which is accepted by all the parties. In terms of this will the only immovable property (subject matter of the present petition) bearing No.1, Golf Links, New Delhi was to devolve as a life estate completely upon his widow and upon her demise it was to fall in two equal shares to the two brothers i.e. Ashok Bajaj and Rajiv Bajaj. The contents of the petition aver that the Will dated 10.10.1976 was the last will and testament of deceased Jagdish Lal Bajaj.
TEST. CAS. 60/2014 Page 8 of 17 11 The history of this property dates back to a sale deed dated 24.5.1974. The father of the petitioner Jagdish Lal Bajaj along with his nephew Ravi Bajaj had purchased this property jointly for a total consideration of Rs.1,80,000/-; 50% of the share in this property was owned by Jagdish Lal Bajaj. The present petition is concerned with this 50% share. Further averments in the petition disclose that both Jagdish Lal Bajaj and Ravi Bajaj constructed their equal portions and a completiton certificate was obtained by them. Both of them took respective possession of their dwelling units. Mr.Jagdish Lal Bajaj died leaving behind his widow and his two sons. At the cost of repetition, this Will had granted a life estate to Smt.Sudarshan Bajaj (widow of the deceased); after her death the property was to devolve upon the two sons of Jagdish Lal Bajaj namely Ashok Bajaj and Rajiv Bajaj in equal shares. In 1993, the mother of the petitioner, the petitioner and Rajiv Bajaj entered into an inter se memorandum of agreement with their uncle dated 17.12.1993. This was to avoid any complication in the property. Even in this memorandum of agreement it was clearly stated that after the death of Jagdish Lal Bajaj his wife and two sons were his only legal heirs under the Hindu Succession Act. The said memorandum of agreement was signed by the parties.
TEST. CAS. 60/2014 Page 9 of 17 12 In the beginning of 1994, the petitioner was informed by his mother and his brother that late Jagdish Lal Bajaj had left behind a Will dated 10.10.1976 as also a codicil dated 14.10.1976. This codicil which had apparently been made four days after the execution of the Will of Jagdish Lal Bajaj purportedly revoked the bequeth earlier made in the Will and by the said codicil 2/3rd share in the suit property was bequeathed in favour of Rajiv Bajaj and the remaining 1/3rd in favour of Sudarshan Bajaj as her life interest. Thereafter the same was to devolve exclusively upon Rajiv Bajaj; meaning thereby that the petitioner in terms of this codicil was completely ousted from the estate of his father. The petitioner was surprised as no Will or Codicil had ever been mentioned before; he asked his mother and brother to show him the Will and the Codicil but he was given an evasive reply. 13 The petitioner had blind faith in his mother. He executed a declaration dated 25.8.1994 acknowledging the existence of both the Will and the Codicil. This document had been prepared by Rajiv Bajaj and the petitioner had only put his signatures.
14 The mother of the petitioner died on 23.7.2006. She left behind a Will dated 05.5.2006. In this Will she had made no mention of the Will of their father dated 10.10.1976 or of the codicil dated 14.10.1976. In this Will TEST. CAS. 60/2014 Page 10 of 17 (dated 05.5.2006) the mother stated that she was the owner of 1/3rd share in the suit property. In terms of her Will since Rajiv Bajaj ahd his family had been misbehaving with her she had bequeathed her 1/3rd share to the petitioner Ashok Bajaj. Copy of the said Will is on record. 15 On coming to know about this Will dated 05.5.2006 the petitioner questioned his brother about the Will dated 10.10.1976 and the codicil dated 14.10.1976 but he was again given an evasive reply.
16 Rajiv Bajaj passed away on 30.6.2009. Their uncle Ravi Bajaj called upon the petitioner and respondent nos.2 to 4 to get the status of the property converted from a leasehold to a freehold in terms of the memorandum of agreement dated 17.12.1993. The petitioner was enquired about his status. This was in view of the Will dated 10.10.1996 and the codicil set up by his brother Rajiv Bajaj which he had not seen till date. The petitioner filed an application dated 07.3.2011 under the Right to Information Act with the Central Public Information Officer to know the status of this property; he was not given any information. His application was declined on 10.6.2011. He filed an appeal before the Appellate Body on 05.7.2011 requesting them for a certified copy of the Will and the codicil of their father. His appeal was allowed and for the first time in July, 2011 the petitioner saw the certified TEST. CAS. 60/2014 Page 11 of 17 copy of the Will dated 10.10.1976 and a copy of the alleged codicil dated 14.10.1976. The petitioner was shocked to see that the codicil was made four days after the last will and there was no mention whatsoever for revoking the bequeath made in the earlier Will dated 10.10.1976. It also did not bear the correct signatures of his father Jagdish Lal Bajaj. The signatures on the codicil were different from the signatures on the Will. The first page of the codicil did not bear any signatures at all. This codicil had been witnessed by his brother Rajiv Bajaj and his mother Sudarshan Bajaj, both of whom were beneficiaries. The codicil apart from being forged and fabricated also did not bear the true signatures of Jagdish Lal Bajaj. The bequest under the codicil was void and invalid as the attesting witnesses to the codicil were beneficiaries. The petitioner also sought information from the Land and Development Officer, as to whether such a Will and the codicil could be treated as valid in view of the information obtained by the petitioner under the RTI Act. The Land and Deveopment Office vide their letter dated 12.03.2013 informed him that the codicil dated 14.10.1976 could not stand the test of the judicial scrutiny. This letter dated 12.3.2013 has been placed on record.
17 The petitioner further goes on to aver that these documents are liable TEST. CAS. 60/2014 Page 12 of 17 to be cancelled as the respondent has frabiracted this codicil. It is not genuine. The petitioner learnt about this forgery in the codicil only when his appeal was allowed under the RTI Act which was in July, 2011. The present petition has been filed in July, 2014; as per him it is within time. 18 These averments as disclosed herein clearly show that the deceased Jagdish Lal Bajaj had left a will dated 10.10.1976. None of the parties before this Court have challenged the fact that a Will had in fact been executed by Jagdish Lal Bajaj. Thereafter a codicil had been set up by Rajiv Bajaj which is dated 14.10.1976 i.e., four days after the execution of the Will dated 10.10.1976. The reason for a complete change of mind by the testator four days later was not even whispered upon in the codicil. The petitioner had executed a declaration deed on 25.08.1994 which as per his averments in the petition was on the asking of his mother in whom he had blind faith and upon her asking he had signed this declaration deed acknowledging the codicil dated 14.10.1976. In 2006 his mother died. His mother had left a Will dated 05.5.2006. It is not the case of any party that this will has not been executed by their mother. This will had bequeathed 1/3rd share of the mother (in the suit property) in favour of Ashok Bajaj for the reason that the deceased (mother) was not looked after properly by her son Rajiv Bajaj. She TEST. CAS. 60/2014 Page 13 of 17 had accordingly bequeathed her 1/3rd share in the suit property to the petitioner. The petitioner as is further clear from the petition had questioned his brother about the codicil purported to have been executed by their father but he was given no answer. The codicil even today is untraceable; it is not with the respondent who had set it up. Rajiv Bajaj has also died. The repeated queries by the petitioner to his brother on the codicil remained unanswered. The status of the petitioner was till unclear. He was constrained to file a petition before the Land and Development Office as the uncle of the petitioner (Ravi Bajaj) had called upon the parties to get the status of the property converted from a leasehold to a freehold which could only be done jointly as Jagdish Bajaj and Ravi Bajaj were 50% owners in the suit property. The petitioner filed an application before the Central Public Iniformation Officer on 10.6.2011. His application seeking information on the Will dated 10.10.1976 and the codicil dated 14.10.1976 was refuted. His appeal was allowed in July, 2011 and for the first time he saw a copy of the said codicil. This codicil being a two page document had the signatures of the testator only on the second page; the first page contained the bequeath; the witnesses to this codicil were also his mother and his brother. 19 There is no doubt to the proposition that the beneficiaries of a will can TEST. CAS. 60/2014 Page 14 of 17 be attesting witneses but at the same time where the document itself raises a suspicion (as is so in this case) as admittedly the first page of the codicil which contained the bequeath was not signed by the deceased and the vehement submission of the petitioner that the signatures of the deceased on the Will and the Codicil are different from one another and which also appears to be prima facie correct on a perusal by the naked eye; this Court is of the view that the period of limitation for filing the present petition would arise from the date when the petitioner had knowledge that this codicil had not been executed by their deceased father. This knowledge came in the knowhow of the petitioner in July, 2011. The present petition has been filed in May, 2014 i.e. within three years from the date of the knowledge. 20 Article 137 of the Limitation Act admittedly applies to a testamentary disposition and this is clear from the judgment of the Apex Court reported as AIR 2008 SCC 2058 Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur While dealing with this issue the Apex Court had culled out the conclusion in para 16; conclusion (c) would be relevant in the context of the instant case which reads herein as under:
(c) such an application is for the Court's permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and TEST. CAS. 60/2014 Page 15 of 17 is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed."
21 The petitioner's right did not get extinguished to challenge this testamentary bequeath i.e. codicil dated 14.10.1976 as he learnt about the forgery/unvalidity of this document only in July, 2011 when his appeal before the Central Information Officer was allowed for the first time; he got a chance to view/see this codicil. At the cost of repetition, even on a repeated query put to the learned counsel for the respondents in the court as to whether this document is his only answer on the codicil is that he has not seen it and even he does not know where it is lying.
22 In the view of this Court this petition cannot be thrown out at this nascent stage. It requires trial. The rights of the parties need to be adjudicated upon. The vehement argument of the applicant that the contrary plea set up by the petitioner also makes out a case for rejection of the plaint, is misconceived. This plea on the face of the plaint and the accompanying documents is not evident. Admittedly, the declaration deed purported to have been executed by the petitioner in the year 1994 ( on the blind faith that he has reposed in his mother) was dispelled by the subsequent registered TEST. CAS. 60/2014 Page 16 of 17 cancellation document cancelling the aforenoted declaration deed which cancellation document the petitioner had executed on 04.6.2013. The parties need to be relegated to a trial.
23 Application under Order VII Rule 11 of the Code is dismissed.
INDERMEET KAUR, J MAY 08, 2017 ndn TEST. CAS. 60/2014 Page 17 of 17