Delhi District Court
Sh. Inder Mohan Kumar Sehgal vs State on 6 October, 2018
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 43/13
New P.C. No. 15989/16
Sh. Inder Mohan Kumar Sehgal
S/o Late Piyare Lal Sehgal,
R/o A-1/3, Rajouri Garden,
New Delhi
..........Petitioner
Vs.
1. State
2. I. Mr. Vinod Sehgal
S/o Late Om Prakash Sehgal,
R/o A-1/3, Rajouri Garden,
New Delhi
II. Mr. Vinay Sehgal
S/o Late Om Prakash Sehgal,
R/o A-1/3, Rajuri Garden,
New Delhi
III. Ms Veena Kapur
Daughter Late Om Prakash Sehgal &
D/o Late Mrs Prakash Rani Sehgal
R/o 26 Stlater Drive Wayne,
New Jersey- 07470, America
IV Ms Vimal Sikka
Daughter Late Om Prakash Sehgal &
D/o Late Mrs Prakash Rani Sehgal,
R/o House No. 306, Valley 3rd floor,
Manpada, Near Pikuginivadi,
Thane, Mumbai,
V. Ms Ruma Kapur
Daughter Late Om Prakash Sehgal,
& D/o Late Mrs Prakash Rani Sehgal,
R/o Shaeen Tyres, Post Box No.-87112,
Dubai, U.A.E.
PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 1/19
3. I. Ms Beena Sehgal ( un-married)
D/o Late Kashmiri Lal Sehgal
S/o Late P.L. Sehgal
R/o M-9/6, Arjun Apartments,
Vikaspuri, New Delhi
II. Mrs Neera Sehgal
C/o & D/o Late Kashmiri Lal Sehgal
S/o Late P.L. Sehgal
R/o M-9/6, Arjun Apartments,
Vikaspuri, New Delhi
III Ms Kavita Sehgal ( un-married)
D/o Late Kashmiri Lal Sehgal
S/o Late P.L. Sehgal
R/o M-9/6, Arjun Apartments,
Vikaspuri, New Delhi
IV. Ms Simi Sehgal ( Un-married)
D/o Late Kashmiri Lal Sehgal
S/o Late P.L. Sehgal
R/o M-9/6, Arjun Apartments,
Vikaspuri, New Delhi
4. Ms Sunita Taneja W/o Mr. Anoop Taneja
D/o Late Sh. Krishan Kumar Sehgal,
S/o Late Piyare Lal Sehgal,
R/o Flat No. 604, Plot No. 24,
Mass Apartments, Sector 10,
Dwarka, Delhi
5. Sh. Surender Mohan Kumar Sehgal,
S/o Late Piyare Lal Sehgal,
R/o H. No. 683, Sector-12A,
Panchkula, Haryana
6. I. Rakesh Vedi ( Son )
II. Rajesh Vedi ( Son)
III. Rajan Vedi ( Son )
IV. Rajeev Vedi ( Son )
V. Rita Berry ( Daughter)
VI. Ramma Marwaha ( Daughter)
VII. Renu Sachdeva ( Daughter)
VIII. Mrs Neelam Vedi ( W/o Late Romesh Vedi)
IX Amit Vedi ( S/o Late Romesh Vedi)
PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 2/19
All heirs of late Smt. Raj Rani Vedi
D/o Late Piyare Lal Sehgal
W/o Sh. K.L. Vedi
C/o & R/o 23 C, Pocket-A
Sukhdev Vihar, New Delhi-110025
( as this is the last known address of all)
......Respondents
Date of institution of the case : 02.07.2013
Date reserved for judgment on : 05.09.2018
Date of pronouncement of judgment: 06.10.2018
JUDGMENT:
1. A petition for grant of Letter of Administration/Probate with the Will dated 03.03.1992 annexed hereto of late Sh. Piyare Lal Sehgal under Indian Succession Act filed initially by Sh. Inder Mohan Sehgal and late Sushila Sehgal.
2. In brief the facts are that petitioner no. 1 Sh. Inder Mohan Sehgal is the sole executor of the last registered will of late Piyare Lal Sehgal (hereinafter referred to as "deceased/testator") dated 03.03.1992 whereby deceased/testator had cancelled his earlier Will dated 28.06.1988 and the entire plot of land measuring 1342 Sq. Mtrs, ( 1610 Sq. Yds.) bearing Plot No. 3, Block A1, Rajouri Garden had been bequeath by deceased/testator vide Will dated 03.03.1992. The deceased/testator has left the following legal heirs:-
I. Sh. Om Prakash Sehgal ( Presently aged 92 years) ( Son) II. Sh. Kashmiri Lal Sehgal ( expired in 2012) ( Son ) PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 3/19 III. Sh. Krishan Kumar Sehgal ( Presently aged 79 years) (Son) IV. Sh. Surender Mohan Sehgal ( Presently aged 76 years) ( Son) V. Smt. Sushila Sehgal ( Expired in October, 2012) ( Daughter) VI. Sh. Inder Mohan Kumar Sehgal ( Presently aged 68 years) (Son) VII. Mrs Raj Rani Vedi (Expired in March' 1993) ( Daughter) However, as of today, Sh. Kashmiri Lal Sehgal ( Son), Mrs Raj Rani Vedi ( Daughter), Mrs Sushila Sehgal had expired leaving behind the legal heirs mentioned hereinabove in the memo of parties.
3. It is stated that deceased/testator had purchased a free hold property from M/s DLF Housing & Construction Pvt. Ltd. On 10.03.1958 vide registered sale deed thereafter a single house consisting of 11 rooms, 4 kitchen, 2 Varandahs, 4 Bath Rooms, leaving an open space of 1000 Sq. Mtrs from his self acquired funds was constructed. The deceased/testator retired as Executive Engineer in Ludhiana, Punjab in the year 1956. However, additional construction was made during the life time of the deceased testator and even the construction was made after the death of deceased/testator by the remaining occupants of the house. Presently, the house has been occupied by the family of Sh. O.P. Sehgal and family of Sh. INK Sehgal. Late Kashmiri Lal Sehgal and his Legal heirs, Sh. Krishan Kumar Sehgal, Sh. Surender Mohan Kumar Sehgal, late Smt. Raj Rani Vedi and late Smt. Sushila Sehgal have not been residing in the house.
PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 4/19
4. It is stated that late Piyare Lal Sehgal deceased/testator during his life time had executed a Will dated 28.06.1988, thereby appointed Sh. O.P. Sehgal, respondent no. 1 as the sole executor of the said Will to administer the Estate, however, on 03.03.1992 the said Will was executed. The Will was executed in the presence of Dr. R.K. Katyal S/o Late S.L. Katyal and Sh. B.R. Rikhi S/o Late R.R Rikhi.
5. It is further stated that Sh. Om Prakash Sehgal, respondent no. 1 in the year 2000, instituted a Probate petition before District & Sessions Judge, Delhi as Probate Case No. 24/2000. The petitioner had received the summons from the court of the then Ld. District & Sessions Judge, Delhi, Sh. M.A. Khan with date 28.07.2000. The said Probate petition was on the basis of Will dated 28.06.1988. After the filing of said probate petition with the intervention of common friends, relatives etc. attempt was made to bring harmony in the family and consequently, two different family settlement deeds both dated 24.07.2000 were signed by all the persons parties. Therefore, second Will dated 03.03.1992 was never given any effect.
6. It is stated that unfortunately, since the year 2000, till date, three legal heirs of late Piyare Lal Sehgal had expired. Smt. Sushila Sehgal being widow and issueless person expired in October, 2012. She had executed the Will dated 01.05.2012 on the basis of the Will dated 03.03.1992 of late Piyare Lal Sehgal. The petitioner being executor is given the solemn duty by deceased/testator to distribute the respective piece of land as per terms and conditions of Will dated 03.03.1992. However, the proposal of the petitioner did not suit the palate of some of the PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 5/19 legal heirs and resulted in friction, therefore, petitioner left with no option to seek indulgence of the court for seeking grant of Letter of Administration/ Probate. Hence, petitioner is seeking Letter of Administration/Probate of the entire estate of late Piyare Lal Sehgal with the Will dated 03.03.1992.
7. Upon filing of petition, notices were issued to all the legal heir of the deceased, respondents, state through collector and citation to general public got published in daily newspaper "Hindustan Times" dated 26.08.2013.
8. The valuation report in respect of immovable property was called from the concerned SDM/Collectors, accordingly Tehsildar, Rajouri Garden, filed valuation report in respect of property bearing No. A-1/3, Rajouri Garden, New Delhi- 110027 and assessed the value of the same as Rs. 9,56,90,934/-.
9. Objector/respondent no. 2 to 6 ( wrongly mentioned as 1-6) filed objections and taken preliminary objections that present petition is neither maintainable in law nor tenable on facts. It is an abuse of the process of law. It is stated that present petition is hopelessly barred by limitation as it is filed after more than 21 years of the death of the deceased/testator and after 13 years when the right to apply accrued in favour of the petitioner. The respondent no. 1 challenged the execution, attestation and legality of Will dated 03.03.1992. It is stated that petitioner has miserably failed to disclose the date/month/year when disputes/contentions of the Will dated 03.03.1992. All the averments made are bald, vague and a feeble to escape the bar of limitation.
PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 6/19
10. It is stated that according to petitioner's own averment dispute as to the Will dated 03.03.1992 were first raised by late Sh. O.P. Sehgal in the year 2000 when a probate petition on the basis of the Will dated 28.06.1988 was filed. The said probate petition was withdrawn as compromised taken place vide two separate family settlement Agreements dated 24.07.2000, therefore, right to apply for probate on the basis of Will dated 03.03.1992 first accrued to petitioner in the year 2000, however, present petition filed in the year 2013 after 10 years. therefore, it is hopelessly barred and liable to be dismissed with heavy cost. It is stated that the petitioner has not complied with the requirements under Section 281 of Indian Succession Act whereby the petition shall be verified by at least one of the attesting witness. However, petitioner failed to meet the indispensible requirements of law, therefore, petition is liable to be dismissed.
11. It is stated that Sh. O.P. Sehgal and deceased were the aspirants of two independent plots to be allotted to them respectively, bearing No. H/32 and H/33 booked for purchase in Kailash Colony ( DLF) IN 1952. The payments were made in cash and cheque individually. The DLF had offered a bigger plot in lieu of the said two plots i.e A-1/3, Rajouri Garden, New Delhi, however, it was agreed by the deceased/testator and Sh. O.P. Sehgal, to pay respect to his father, in the name of deceased/testator. Respondent no. 1 was in occupation and possession of one-half portion of the plot with a dwelling unit constructed by respondent no. 1. Deceased/testator had no capability and capacity/title to bequeath half portion of the said plot vide alleged Will dated 03.03.1992.
PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 7/19
12. It is stated that GPA was executed dated 01.07.1989 by deceased/testator in favour of respondent no. 1, Sh. O.P. Sehgal in respect of half portion of the plot and structure constructed thereon. It is stated that Will dated 03.03.1992 is forged, fabricated and manipulated document and it was never executed by deceased/testator Pyare Lal Sehgal. In order to bury the hatched and save familial ties, all parties therein, through their predecessors-in-interest entered into a family settlement dated 24.07.2000. The first and last Will of deceased/testator was dated 28.06.1988 which was duly acknowledged and acted upon by all his legal heirs vide family settlement deed dated 24.07.2000, therefore, petition is liable to be dismissed.
13. On merit all the averments made in the petition are denied and the submissions and averments made in preliminary objection reiterated. It is stated in detail that predecessor of respondent no. 1 was the owner of half portion and paid independently, of half portion. The ownership was also recognized by deceased/testator in his will dated 28.06.1988. Sh. O.P. Sehgal alongwith his family has been residing in the half portion which was constructed by him from his own funds. It is specifically denied that between 28.06.1988 to 03.03.1992, the petitioner had constructed an additional set of five rooms, one kitchen, two bath rooms from his own investments with the permission of the deceased/testator leaving a space of 975 Sq. Mtrs. It is reiterated that Will dated 03.03.1992 is false and fabricated document. It is stated that petitioners are not entitled to Letter of Administration/Probate to the annexed Will dated 03.03.1992 which is false and fabricated document. It is stated that petition is liable to be dismissed.
PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 8/19
14. Petitioner filed rejoinder to the objections filed on behalf of respondents and denied all the objections and reiterated the averments mentioned in the petition.
15. On the pleading of the parties following issues were framed vide order dated 02.07.2016:-
1. Whether the present petition is barred by limitation?
OPR
2. Whether the Will dated 03.03.1992 executed by Late Sh. Piyare Lal Sehgal S/o late Sh. Harnarain Dass Sehgal is his last genuine, legal, valid Will and duly executed in his sound disposing mind? OPP
3. Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP
4. Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 1 to 6 in the written statement/objections? OPR
5. Relief
16. It is pertinent to mention that issue no. 1 is treated as preliminary issue since it is purely a legal issue.
17. It is pertinent to mention here that during the proceedings respondent no. 1 Sh. Om Prakash Sehgal, respondent no.1, Sh. Krishan Kumar Sehgal, respondent no. 4, Mrs Prakash Rani Sehgal, respondent no, 2 (1), Mrs Uma Rani Sehgal, respondent no. 3 (1), Sh, Ramesh Vedi, respondent no. 6(iii) have expired their legal heirs brought on record vide order dated 29.05.2018 as mentioned hereinabove in the memo of parties.
PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 9/19 Finding on Preliminary Issue No. 1
18. I have heard ld. Counsel for the petitioner Sh. Mohit Aggarwal, ld. Counsel for the petitioner. I have also gone through the written arguments and judgments relied upon by the counsel for plaintiff on 26.09.2018. I have also heard, counsel for respondent Sh. Ankur Mahindro, counsel for respondent no. 1 to
6.
19. In order to appreciate the respective submissions of both the parties, let us peruse the law laid down by Appex Court. The question for consideration, is whether the petition for grant of Probate/ Letter of Administration is governed by the provision of Article 137 of the Limitation Act, Came up in the case of "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", (2008) 8 SCC, 463 Supreme Court of India, while answering whether Article of Limitation Act applies to the application for probate held as under "The genesis of Article 137 of the Limitation Act can be traced from Article 181 of the Limitation Act, 1959. The Limitation Act contains different periods for a specified application. Even in the Limitation Act of 1908 where there is no period provided for a specific application, a residuary clause is included providing limitation for other applications. Article 181 of the Limitation Act, 1908 being the residuary clause contemplates the application for which no period of limitation is provided elsewhere in the schedule or by Section 48 of the Code of Civil Procedure, 1908 which was retained in the Limitation Act of 1963 with certain modification, which can be reasonably ascertained from the comparison of two provisions, which are depicted below:
"181. Application for which Three years when the right to period of limitation is pro-apply accrues.
Vided elsewhere in this schedule or by Section 48 of the Code of Civil Procedure,1908.
PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 10/19
137. Any other application for Three years when the which no period of right to apply accrues limitation is provided elsewhere in this Division."
Such distinction is well explained by the Hon'ble Supreme Court in case of Kerala SEB Vs.T.P. Kunhaliumma, reported in (1976)4 Supreme Court Cases 634 in these words:-
"18. The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act 1963 compared with Article 181 of the 1908 Limitation Act shown that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other applications as in the 1963 Limitation Act. The word 'any other application' under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a Court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if the applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period.
22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a Civil Court. With respect we differ from the view taken by the two-judge bench of this Court in Athani Municipal Council case2 and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 of the 1963 Limitation Act."
Thus, an application under any specified Act before the Civil Court is application conceived under Article 137 of the Limitation Act, 19963 as the distinction, which was sought to be made under Artilce 181 of the Limitation Act, 1908 have been obliterated by deletion and amendment of article 137 of the Limitation Act, 1963. it is no longer res integra that any other applications is not restricted to an application under the Code of Civil Procedure, but an PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 11/19 application under special statue being filed before the Civil Court.
20. Hon'ble Supreme Court of India, further in the case of KRISHAN KUMAR SHARMA VS. RAJESH KUMAR SHARMA (2009) 11 SCC 537, held that Article 137 of Limitation Act is applicable in case of Probate/ Letter of Administration but applicable as per judgment of in case "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", 2008 SCC, (Supra) "16. Rejecting Mr. Dalpatrai's contention. I summarise my conclusion thus-
(a)under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;
(b)the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;
(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 is a continuous right which can be exercised any time after the death of the deceased, as along as the right to do so survive and the object of the trust exists or any part of the trust, if created remains to be executed;
(d)the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased's death.;
(e)delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;
(f)such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 12/19 of delay no longer operates."
Conclusion (b) is not correct while Conclusion (c) is the correct position of law.
21. Ld. Counsel for the petitioner relied on judgment of Gurtej Singh Appellant Vs State and others decided on 14th October, 2014 reported in 2014 ( 146) DRJ page 154 and reproduce the following Para:-
"16. Article 137 of the Limitation Act provides that any other application for which no period of Limitation is provided elsewhere in this division, the period of limitation is three years from the date when Right to apply accrues. No period of limitation has been prescribed for filing a probate/letter of administration petition under the Limitation Act. Accordingly, article 137 of the Limitation Act is attracted with regard to probate petitions. A perusal of Article makes it clear that period of limitation will commence from the date 'Right to Apply' accrues in favour of the petitioner. The period of limitation will not commence from the date of death of the testator; more so when in National Capital Territory of Delhi there is no law which compels the applicant to file the proceedings of probate or letter of administration."
22. Ld. Counsel for petitioner further relied on judgment in Rajesh Sharma Vs Krishan Kumar Sharma, 212 ( 2014) DLT, 562, and reproduce the following para:-
7. "A right to sue accrues as per Article 137 of The Limitation Act, 1963 depending upon the facts of each case. Whereas in a particular case right to sue may arise on the death of the testatrix inasmuch as circumstances would show objections existing to a Will of the deceased even on the date of death of the testatrix, in other cases merely from the date of death it is not necessary that the right to sue accrues. The PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 13/19 mere fact that the respondent/objector was in possession of some part of the property cannot mean that the petitioner/appellant has a deemed notice of objection to the Will inasmuch as mere possession does not necessarily lead to an inference of possession being claimed in derogation of a Will of a deceased testatrix/Smt. Sneh Prabha Sharma in this case. I have already noted above that there is no written document, whether of a legal notice or a letter or any other documentary evidence such as a pleading in a court case, showing that three years prior to filing of the probate petition the respondent/objector had objected to the Will dated 13.07.1989 of the deceased testatrix Smt. Sneh Prabha Sharma.
Therefore, in the facts of the present case I am not inclined to hold that cause of action accrued on the death of testatrix Smt. Sneh Prabha Sharma."
23. Ld. Counsel for the petitioner further relied on Civil Appeal No. 8441 of 2015 in Yellapu Uma Maheshwari & Anr. Vs Buddha Jagadheeswararao & Ors. and in case Devender Kaur & Anr. Vs Surjit Singh & Ors. 2014, 2014 Law Suit (Del) 37.
24. Ld. Counsel for the petitioner also relied on judgment of Amit & Ors Vs State of NCT of Delhi in FAO No. 402/2015, decided on 12th October, 2017. He referred to Para 2 which reads as under:-
2. "The need to file the probate petition i.e the cause of action to file the probate petition arises when the subject Will is specifically denied by the objectors to the notice/knowledge of the appellants/petitioners or their predecessor-in-
interest. It is only the denial of the validity etc of the subject Will as brought to the knowledge of the appellants/petitioners or Sh. Radhey Shyam would then limitation would begin for filing of the probate petitioner."
PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 14/19
25. Ld. counsel for the petitioner further submitted that the date of denial of validity of the Will etc by respondents has not been mentioned, therefore, limitation would commence from the cause of action for the purpose of limitation not from the death of the deceased Sh. Piyare lal Sehgal.
26. Ld. Counsel for petitioner in the written arguments submitted that the onus is on the respondents to prove that the petitioner is barred by limitation. The plea of the respondents is baseless and devoid of any merit that the petition is barred by limitation and filed after 21 years. He further submitted that as per respondents the right to apply for probate accrued in the year 2000. The last submission of the respondents' counsel was that on 24.07.2000 the cause of action arose when a family settlement entered between the parties and a Compromise Deed dated 24.07.2000 was prepared.
27. Ld. Counsel for the petitioner vehemently submitted that all the arguments of the respondents is baseless and does not hold any water. He further submitted that none of the respondents objected or challenged the Will dated 03.03.1992 by giving any legal notice or letter or filing any litigation as contemplated in the judgment of Gurtej Singh ( Supra), therefore, the limitation had yet not commenced. The Will in question came into operation after the demise of deceased on 26.09.1992 and it was the continuous cause of action.
28. The family settlement was compulsorily required registration as per Section 17 (1) of the Registration Act. The family settlement have been acted upon till date and more than PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 15/19 18 years have already elapsed, therefore, it is not an enforceable family settlement. Ld. Counsel for the petitioner submitted that issue no. 1 of limitation may be decided in favour of petitioner and against the respondents.
29. Ld. Counsel for respondents, Sh. Ankur Mahindru drawn my attention to the petition and read out the Para 4 of the petition wherein it is admitted by the petitioner that deceased Piyare Lal Sehgal had made a Will dated 28.06.1988 where Sh. Om Parkash Sehgal, respondent no. 1 was appointed as sole executor. It is further admitted in Para 4 of the petition by the petition that Sh. Om Parkash Sehgal in the year 2000 instituted a Probate petition bearing no. 24/2000 and petitioner had received the summons from the court of the then ld. District Judge, Delhi, Sh. M.A. Khan.
30. My attention was also drawn on Para 5 of the petition where it is admitted by the petitioner that with the intervention of common friends and relatives etc. attempt was made to bring harmony in the family, after filing of the above said probate petition and a family settlement Deed dated 24.07.2000 was signed by all the parties.
31. It is also pointed out that in Para No. 4 of the petition, petitioner also spell out the Will dated 03.03.1992 of deceased testator late Piyare Lal Sehgal whereby the earlier Will dated 28.06.1988 was revoked. It is further admitted by petitioners that a probate case filed by Sh. Om Parkash Sehgal in the year 2000 bearing no. 24/2000 and not mentioned about the second Will dated 3.3.1992. This fact established on record that PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 16/19 petitioner has knowledge of the Will on the date of Settlement i.e on 24.07.2000 as the family settlement in Para 5 also described. The petitioner was well within the knowledge of a probate petition filed by Sh. Om Parkash Seghal on the basis of the Will dated 28.06.1988 as they were served.
32. It is crystal clear from the averments in the petition that all the legal heirs of deceased testator were in conflict and after filing of probate petition bearing no. 24/2000 a family settlement arrived between them. The issue of second will dated 03.03.1992 was acknowledged and also part of the settlement. The petitioner has not mentioned any fact which restrain the petitioner to applied for their rights as per Will dated 03.03.1992 since July, 2000 till 02.07.2013. The petitioner was within the knowledge, at the time of enter into a family settlement that there exist a Will in favour of respondent no. 1 on which basis a probate petition No. 24/2000 was filed. During the settlement talks a Will relied by petitioner dated 03.03.1992 also seen the day of light.
33. Now applying the law laid down by the Apex court in KRISHAN KUMAR SHARMA ( Supra), "KUNVARJEET SINGH KHANDPUR (Supra) and also the judgments relied by petitioner himself in Gurtej Singh (Supra) and Rajesh Sharma ( Supra) in the present facts and circumstances after the death of deceased, respondent No. 2 had filed a petitioner for seeking probate on the basis of Will dated 28.06.1988 and notices were issued to the respondents including petitioner in P.C No. 24/2000 before the court of the then Ld. District & Sessions Judge, Sh. M.A. Khan. The Will dated 03.03.1992 and Will dated 28.06.1988 PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 17/19 both were come to the day light and parties negotiated for settlement.
34. It is clearly established that on filing the probate petition by respondent no. 2 in July, 2000, the rights of petitioner and respondents were in dispute. As per own version of petitioner that due to intervention of family friends and relatives the dispute was culminated into a Family Settlement on 24.07.2000. Thereafter in pursuance to the settlement, respondent no. 2 withdrew his probate petition. It established on record that the right to apply for probate/letter of administration arise in July, 2000, when the parties entered into family settlement, especially the withdrawal of petition by respondent no. 2, that parties were asserted their respective rights as per above said both Wills and then settled. It cannot be presumed that since July, 2000, the parties failed to honour mutual family settlement then right to apply for probate of petition will continue till filing of the present petition.
35. For argument sake, if any, of the parties failed to comply the terms of settlement, no steps taken by petitioner, may be it can be assumed for three years when it has come to the knowledge that family settlement has not registered. There is no averment in the petition that when and how the family settlement dated 24.07.2000 breached. In these circumstances, petitioner cannot take advantage that his right for apply for probate did not arise throughout the ten years period. It is well within the knowledge of petitioner that two Wills have emerged and on the basis of both the Wills a family settlement was entered, however, petitioner did not take any steps towards the PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 18/19 alleged breach of the family settlement. The petitioner cannot take advantage of this fact to stretch upon his right to apply for probate till 2013.
36. In my considered opinion, on the basis of pleadings of the parties and material available on record, the right to apply for probate/letter of administration accrued to the petitioner on 24.07.2000, however, when family settlement took place and thereafter for another period of may be three years. It is well within the knowledge of the petitioner that there is a breach of family settlement. There was no constrain to file the petition, immediately under Indian Succession Act for seeking Letter of administration/probate on the basis of Will dated 03.03.1992.
37. In my considered opinion, the present petition is filed on 02.07.2013, hence the present petition is barred by limitation. Therefore, preliminary issue no. 1 is decided against the petitioner and in favour of respondents.
38. In view of finding on preliminary issue no. 1, the present petition is dismissed being time barred. No order as to cost. File be consigned to record room.
SANJAY Digitally signed by
SANJAY KUMAR
KUMAR Date: 2018.10.06
21:42:39 +0530
(Announced in the open (SANJAY KUMAR)
court on 6th October, 2018 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 19/19
PC No. 43/13 Inder Mohan Kumar Sehgal Vs State & Ors 20/19