Delhi District Court
Sh. Swaraj Kumar Thapar vs Smt. Kamla Sehgal on 29 May, 2014
: 1 :
IN THE COURT OF SHRI SIDHARTH SHARMA : ADDITIONAL DISTIRCT &
SESSIONS JUDGE04 : SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Suit No.153/2014
In the matter of :
Sh. Swaraj Kumar Thapar,
S/o Late Sh. Ram Lal Thapar,
R/o C5, Hauz Khas,
New Delhi110016. .......Plaintiff
Versus
1 Smt. Kamla Sehgal,
(Since deceased through LR's)
i. Mrs. Mamta soni
I - A, DDA Flats, Ber Sarai (Opp. JNU),
New Delhi.
ii. Sh. Ajay Sehgal,
E60, Sector55, Noida (U.P.)
iii. Mrs. Deepa Tandon,
F93, Ist floor, Rajouri Garden,
New Delhi - 110027.
iv. Mrs. Nishi Narang,
G21, Rajouri Garden,
New Delhi - 110 027.
2 Mrs. Urmila Suri,
W/o Sh. Satpal Suri,
R/o 383, Yojna Vihar, Delhi - 110092.
Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....1 of 45
: 2 :
3 Mr. Neeraj Bhel,
S/o Late Sh. Raj Kumar Behl,
R/o K95, South City - I,
Gurgaon - 122001.
(Haryana)
4 Sh. Dheeraj Bhel,
S/o Late Sh. Raj Kumar Bhel,
R/o K95, South City - I,
Gurgaon - 122001.
(Haryana) ........Defendants
Date of institution of the suit : 13.07.2012
Date reserved for judgment : 13.05.2014
Date of pronouncement of judgment : 29.05.2014
Suit for declaration
J U D G M E N T :
The present suit has been filed by the plaintiff seeking a declatory relief that he has become the owner of ground portion of the property bearing No. C5, Hauz Khas, New Delhi110016 (hereinafter referred to as 'suit property') by virture of Will dated 31.01.1974 executed by his father, late Sh. Ram Lal Thapar, the erstwhile owner of the property.
2 It is further averred that late Sh. Ram Lal Thapar was the owner of the suit property ad measuring 317 sq. yards which is selfacquired property Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....2 of 45 : 3 :
which consisted of seven rooms out of which five rooms were constructed on the ground floor, two rooms were constructed on the first floor. It is further averred that in addition to the said construction, the plaintiff constructed two more rooms on the first floor with his own funds.
3 That late Sh. Ram Lal Thapar had two sons and four daughters namely Late Ms. Vimla Thapar, Smt. Kamla Sehgal, Smt. Nirmal Behl, Smt. Urmila Suri, Sh. Swaraj Kumar Thapar and Late Sh. Balraj Kumar Thapar. Sh. Ram Lal Thapar during his life time had executed Will dated 31.01.1974 bequeathing the aforesaid property upon plaintiff, Smt. Nirmal Behl and Ms. Vimla Thapar. As per the Will executed by him, he had bequeathed his entire property to his wife Smt. Rikh Devi giving her life interest in the property without any right to alienate the same in any manner and after the death of Smt. Rekhi Devi, the property was to devolve upon plaintiff, Ms. Vimla Thapar and Smt. Nirmal Behl as per his instructions. Plaintiff and Ms. Vimala Thapar were given the front side three rooms and back side two rooms respectively which constitutes the entire ground floor. Smt. Nirmal Behl was given two rooms on the first floor. Further, as per the Will, Ms. Vimla Thapar was only give life interest in the said property without any power to alienate as she was a spinister and along with plaintiff were taking care of their father, Sh. Ram Lal Thapar and mother Smt. Rikh Devi. As per the recitals in the Will, Ms. Vimla Thapar's share after death was to revert back upon the sons of the plaintiff. Smt. Nirmal Behl Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....3 of 45 : 4 :
who was a widow, was given two rooms and after her death, her share was to devolve upon her two sons, Sh. Neeraj Behl and Sh. Dheeraj Behl. Sh. Ram Lal Thapar did not give any share in his property to Smt. Urmila Suri and Kamla Sehgal as both of them were leading happy and prosperous life and were given adequate money by way of gifts and presents at the time of their marriages. Sh.
Balraj Thapar was deprived of any share in the property by Sh. Ram Lal Thapar as he had married a Christian widow against his wishes and was not looking after his parents.
4 It is further the case of the plaintiff that the Will executed by late Sh. Ram Lal Thapar is legal, valid and proper Will which has been attested by two witnesses and signed by late Sh. Ram Lal Thapar and, therefore, the he is entitled for the relief of declaration in his favour with regard to the portion of the property which has been bequeathed by the said Will. It is further the case of the plaintiff that the defendants who are his sisters and their LR's are the persons interested in questioning the title of the plaintiff and, therefore, the present suit has been filed. It is further case of the plaintiff that he is in occupation and possession of the said portion of the suit property and has become the owner by virture of the Will made by his late Sh. Ram Lal Thapar. He further stated that cause of action arose in April, 1985 when father of the plaintiff died. It subsequently arose on 15.05.2012 when defendant No.1 expressed her resentment over the contents of the Will and proclaimed that the Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....4 of 45 : 5 :
Will is not a valid Will. It is further the case of the plaintiff that the defendant no.
1 expired before the filing of the suit and had given a 'no objection' duly signed by her but due to the resentment shown by defendant no.1 who refused to sign 'No Objection', there is reasonable apprehension in the mind of plaintiff and, therefore, the present suit has been filed for declaration of his title by the plaintiff on the basis of Will executed by his father, late Sh. Ram Lal Thapar.
5 That defendants No.1 & 2 have filed their separate written statements. It has been contended by defendants No. 1 & 2 that said Will dated 30.01.1973 / 31.01.1973 is a forged and procured Will. It has been further emphasized by them that said Will bears signatures of deceased on the last page only and rest two pages might have been substituted or replaced. Defendants No.1 & 2 have also challenged authenticity of the Will on the ground that same is alleged to have been executed in 1974, but was shown light of the day only in 2012 i.e after 39 years of the alleged date of its execution and 27 years after death of its maker. As such, Will is shrouded with suspicious circumstances and is liable to be disbelieved and discarded. The defendants No.1 & 2 have also challenged that the suit is barred by limitation and have questioned the maintainability of the suit stating that the proper course for the plaintiff was to approach the Probate Court, which is competent to grant the relief to plaintiff regarding authenticity of the Will. Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....5 of 45 : 6 :
6 The defendants No.3 & 4 filed their WS wherein they have supported the case of the plaintiff and genuineness of the execution of the Will and have not objected to granting relief to the plaintiff regarding declaration, as sought.
7 The plaintiff has not filed replication to the WS filed by all the defendants.
8 On the basis of the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 31.01.2013 :
i. Whether the suit is without cause of action? OPD 12 ii. Whether the suit is filed on the basis of forged and fabricated documents, if so, its consequences? OPD 12 iii. Whether the suit is within the prescribed period of limitation? Onus on parties.
iv. Whether the plaintiff is entitled for a decree of declaration against the defendants as prayed in prayer clause (a) of the plaint? OPP v. Whether the suit has been properly valued for the purposes of pecuniary jurisdiction? OPP vi. Relief.
9 An application U/o XIV Rule 5 CPC was moved by Ld. Counsel for defendants No.1 & 2 and the said application was partly allowed on 15.04.2014 Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....6 of 45 : 7 :
and an additional issue which was the legal issue was framed which was numbered as issue No.6 which is as follows :
"Whether this court has no jurisdiction to adjudicate upon execution and validity of Will dated 30.01.1974 / 31.01.1974 alleged to be executed by deceased Shri Ram Lal Thapar?
OPD 10 The original issue No.6 which was 'Relief' was renumbered as Issue No.7.
11 It is seen from the record that before framing of issues on 22.09.2012, the defendants No.1 & 2 had not filed their WS and their opportunity to file the WS was closed. It is further stated that defendants No.3 & 4 have filed their WS and are not making any objections and infact supporting the case of the plaintiff, there was no necessity of framing of issues and hence, the matter was fixed for PE. However, thereafter, on the same day, the defendants No.1 & 2 appeared and filed an application U/o XVIII Rule 16 CPC read with Order X Rule 2 CPC along with their respective WS which was taken on record by my Ld. Predecessor subject to objections and legal consequences and it was ordered that they shall not constitute part of the record till orders by the court on the application filed by defendants No.1 & 2.
12 On the next date of hearing i.e. 15.10.2012, an attesting witness to Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....7 of 45 : 8 :
the Will, PW.1 Pandit S.P. Mamgain was present, examined and partly cross examined and his further crossexamination was deferred at the request of defendants No.1 & 2. On the next date of hearing i.e. 19.10.2012, the application U/o VIII Rule 1 CPC of the defendants No.1 & 2 regarding their WS to be considered and taken on record was allowed and it was ordered that their WS shall constitute part of the record. Thereafter, on subsequent dates, PW.1 Pandit S.P. Mamgain was crossexamined by ld. Counsel for defendants No.1 & 2 after framing of issues on 31.01.2013.
13 PW.1 is the only witness examined by the plaintiff. On their part, defendants No.1 & 2 examined two witnesses. DW.1 is defendant No.2 herself.
During the course of trial, DW.1 expired and her LR's were brought on record on 07.04.2014. On behalf of defendant no.1, Ms. Mamta Soni, substituted defendant and elder daughter of defendant no.1 was examined as DW.2. Both the witnesses were crossexamined and thereafter, the matter was fixed for final arguments. Defendants No.3 & 4 did not examine any witness in their defence and in any case they are already supporting the case of the plaintiff.
14 I have heard lengthy arguments of ld. Counsel for the plaintiff and Ld. Counsels for all the defendants. Both, the plaintiff as well as the defendants filed their respective written arguments.
Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....8 of 45 : 9 :
MY ISSUEWISE FINDINGS ARE AS FOLLOWS :
ISSUE NO. 1 :
"Whether the suit is without cause of action? OPD 12"
15 The burden to prove this issue was upon the defendants No.1 & 2. DW.1 as well as DW.2 admitted in their crossexamination that they had never asked their mother or the plaintiff for any partition or share in the suit property. They also admitted that they did not file any partition suit after death of late Sh. Ram Lal Thapar. According to plaintiff, the cause of action arose after death of his father in the year 1985. It again arose in the year 2012 when plaintiff went to both of his sisters namely Defendant No.1, Kamla Sehgal and defendant No.2, Smt. Urmil Suri for obtaining "No Objection Certificate" w.r.t the Will of his father It is admitted case that defendant No.2 gave her 'No Objection Certificate' with respect to the Will but the defendant No.1 refused to give her 'No Objection Certificate' and due to the said reason, there was genuine apprehension in his mind that his title to the suit property which was bequeathed as per the Will is under challenge and, therefore, the cause of action arose for filing of the present suit in the year 2012 and, therefore, in my view, the cause of action to file the present suit existed. This issue is accordingly decided in favour of plaintiff and against the defendants No.1 & 2.
Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....9 of 45 : 10 :
ISSUE NO.2 :
"Whether the suit is filed on the basis of forged and fabricated documents, if so, its consequences? OPD 12"
16 The burden to prove this issue was upon the defendants No.1 & 2.
Section 68 of Indian Evidence Act provides that where a document is required by law to be attested, it shall not be used in evidence until one of the attesting witness at least has been called for the purpose of proving its execution, if there be an attesting alive, and subject to the process of the Court and capable of giving evidence. In AIR 1964, Supreme Court 529, it was held that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in a case of the Will by Section 63 of Succession Act.
17 From the reading of Section 68 of Indian Evidence Act read with Section 63(c) of Succession Act, it is clear that it is sufficient even if one attesting witness is examined. In Janki Narayan Boir Vs. Narayan Namdeo Kadam, AIR 2003 SC 761, it was held that : simply proving that signatures on the Will was that of testator is not enough. Requirement of its attestation by two or more witnesses is mandatory and attestation must be proved to have been made as required by Section 63(c) of Succession Act.
In Savithri Vs. Karthyayni Amma & Ors., JT 2007 (12) SC 248, Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....10 of 45 : 11 :
the legal requirements for proving the Will were stated in para 14 of the judgment which is reproduced as under :
"The legal requirements in terms of the said provision are now wellsettled. A Will like any other documents is to be proved in terms of the provisions of the Indian Succession Act and the Indian Evidence Act. The onus of proving the Will is on the propounder. The testamentary capacity of the propounder must also be established. Execution of the Will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time he was in sound deposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the Will in the presence of two witnesses who attested his signatures in his presence or in the presence of each other. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine."
The defendants have strongly relied upon the judgment cited as Jaswant Kaur Vs. Amrit Kaur, 1977 SCR (1) 925; wherein it was held that "As such the duty of propounder of Will is not only to prove execution and attestation of Will but also to remove suspicious circumstances surrounding the the making of Will."
They have also relied upon Reeta Ramesh Sawhney Vs. State Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....11 of 45 : 12 :
wherein it was held as under :
"The legal burden to prove due execution always lies upon the person propounding a Will. The propounder must satisfy the judicial conscience of the court that the instrument so propounded is the last Will of a free and capable testator.
A Will is a solemn document, being written by a person who is dead and who cannot be called in evidence to testify about the due execution of the Will. It is the livings who have to establish the Will. It naturally throws a heavy burden on the court to satisfy its judicial conscience that the burden of proof of due execution is fully discharged and every suspicious circumstance explained.
No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its own circumstance. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of the Will which is propounded. Courts have to be vigilant and zealous in examining evidence."
The last judgment relied upon the defendants is Vidya Rani Vs. Surinder Kaur of Hon'ble High Court of Delhi wherein it was held as follows :
"The principal of law as to how genuineness and authenticity of a Will has to be established came up before the Apex Court in the case of Kalyan Singh Vs. Smt. Chhoti and Ors. In that case the plaintiff as per the Will wanted to be declared as the sole legatee with no right whatsoever to the testator's wife. The Apex Court observed that this casts a serious doubt on genuineness of the Will. Moreover, the Will had not been produced for very many Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....12 of 45 : 13 :
years before the Court or before authorities even though there were occasions to produce it for asserting plaintiff's title to the property. This was considered to be a suspicious circumstance."
On the other hand, the plaintiff has relied upon the following judgments :
In Santosh Kakkar & Ors. Vs. Ram Prasad passed by Hon'ble Mr. Justice J.B. Goel of Delhi High Court, it was held that :
"The law about proof of Will is well established. The onus of proving the Will is on the propounder and in the absence of suspicious circumstance surrounding the execution of the Will, proof of testamentary capacity and the signatures of the testator as required by law is sufficient to discharge the onus. Ordinarily, when the evidence is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signatures as required by law, Courts would be justified in making a finding in favour of the propounder. Where however there are suspicious circumstances the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court and if the propounder succeeds in removing the suspicious circumstances the Court would grant probate even if the Will might be unnatural and might cut off wholly or in part near relations.
In Ramabai Padmakar Patil (dead) by LR's and others Vs. Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....13 of 45 : 14 :
Rukminibai Vishnu Vekhande and others passed by Hon'ble Mr. Justice Y.K. Sabharwal and Hon'ble Mr. Justice G.P. Mathur, it was held that :
"Before we advert to the submissions made by learned counsel for the parties, it will be useful to briefly notice the legal position regarding acceptance and proof of a Will. Section 63 of Indian Succession Act deals with execution of unprivileged Will.s It lays down that the testator shall sign or shall affix his mark to the Will or it shall be signed by some other person in his presence and by his direction. It further lays down that the Will shall be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the Will or has seen some other sign the Will, in the presence and by the direction of the testator and each of the witnesses, shall sign the Will in the presence of the testator. Section 68 of the Evidence Act mandates examination of one attesting witness in proof of a Will whether registered or not. The law relating to the manner and onus of proof and also the duty cast upon the Court while dealing with a case based upon a Will has been examined in considerable detail in several decisions of this Court viz. H. Venkatachala Iyengar Vs. B.N. Thimmajamma and others, AIR 1959 SC 443, Rani Purnima Debi and another vs. Kumar Khagendra Narayan Deb and another, AIR 1962 SC 567 and Shashi Kumar Banerjee and others Vs. Subodh Kumar banerjee and otheers, AIR 1964 SC 529. It will be useful to reproduce the relevant part of the observations made by this Court in the Constitution Bench decision in Shashi Kumar Banerjee (supra) which are as under :
The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by S.63 Succession Act. The onus of proving 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 signatures of the testator as required by Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....14 of 45 : 15 :
law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion the onus is on him to prove the same."
"In Pushpavati and others v. Chandraja Kadamba and others, AIR 1972 SC 2492, it has been held that if the propounder succeeds in removing the suspicious circumstance, the Court would have to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. In Rabindra Nath Mukherjee and another vs. Panchanan Banerjee (dead) by LR's and others (1995) 4 SCC 459, it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of he Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly. The concurrent finding recorded by the District Court and the High Court for doubting the genuineness of the Will on the aforesaid ground was reversed."
"As discussed earlier, in view of S. 63 of Indian Succession Act and teh proviso to S. 68 of the Evidence eAct, the requirement of law would be fully satisfied if only one of the attesting witness is examined to prove the Will. That this had been done in the present case by examining PW.2 Raghunath Govind Sogale cannot be disputed. No infirmity of any kind had been found in the testimony of this witness. Chhaya Dighe merely typed the Will and she is not an attesting witness nor it is anybody's case that Smt. Yamunabai had put her thump impression on the Will in her presence, therefore, her examination as a witness was wholly redundant. The mere nonexamination of the Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....15 of 45 : 16 :
advocate who was present at the time of preparation or registration of the Will cannot, by itself, be a ground to discard the same.
In Amalorpava Mary and another Vs. Kulandai Ammal and others, AIR 2004 Madras 291, it was held that :
"It is relevant to refer the decision of T. Ramaprasada Rao, J., in the case of Andal Ammal. In re, reported in (1968) 1 Mad LJ 356. While considering an application filed under Section 232 of the Indian Succession Act, 1925, the learned Judge held that examination of one of the attestors is sufficient if he states that the other attesting witness also was present and he attested the saem in the presence of testator. In the case before the learned Judge, the Will was executed on 16.2.1955. The testator lived for 7 long years thereafter and died on 19.01.1962. Only one attestor was examined and in his evidence he explained that the other attesting witnesses also was present and he attested the same in the presence of testators of the Will. The learned Judge has held that the evidence of one of the attestors that the other attesting witness also was present and he attested the same in the presence of testator will satisfy the requirement and therefore, it has to be held that the Will has been duly executed and signed by the deceased and it is the last Will of the free and capable testator."
In Ammu Balachandran Vs. Mrs. O.T. Joseph (died) and others, AIR 1996 Madras 442, it was held that :
"As in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in the such matters.
However, there is one important feature which distinguishes Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....16 of 45 : 17 :
Will from other documents. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally.
Introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of document. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understanding the nature and effect of the disposition and put his signatures to the document of his own free Will. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signatures as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
From the above paragraph, it is clear that if sufficient explanation is given in the Will for not providing of legal heir, that itself will dispel the suspicious circumstances, it is not the explanation by the propounder for not providing a legal heir but the explanation by the testator himself why he intentionally excluded the legal heir or only provided less for him.
Regarding the nonregistration of Will, the same decision says that the registration is not necessary for proving the genuineness of a Will, though it will go a long way to dispel the doubt regarding the same. Regarding nonregistration, Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....17 of 45 : 18 :
it was held that :
"It is true that registration will go a long way to dispel the doubt as to the genuineness of the Will. But where the execution is proved by cogent and acceptable evidence, the Court should not disbelieve the Will merely because it is not registered."
The above are the principles on the basis of which a finding regarding the genuineness of a Will has to be arrived at. It also follows that if the provisions of the Will are natural and rationale in character, the question of challenging the Will on the above grounds loses much of its importance. Further, if the testator himself has explained the reason why he does not want to provide a particular heir, a suspicious circumstance cannot be alleged, if the execution is properly proved.
The other suspicious circumstances are that there eis no signatures in page 1 & 2 and those pages are also not numbered in the Will. The argument that is taken is that pages 1 & 2 must have been subsequently substituted, and that is why page number is not found in those pages. If pages 1 and 2 have been subsequently substituted, in that attempt, the numbering of pages 1 and 2 would not have been forgotten as it is an obvious thing. Again pages 1 and 2 are appearing on a single sheet of paper, and as such, there is no necessity for numbering the first sheet and there was only one more sheet and since it was a separate sheet, the page number was given. We must also remember that PW.2 has stated that when he signed in the Will, there were two sheets pinned together. In the absence of any other positive evidence, no inference can be drawn that pages 1 and 2 were subsequently substituted. The other suspicious circumstance alleged is that the Will is not signed in all the pages. That also cannot be said to be a suspicious circumstance since the Will is only a declaration of the last Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....18 of 45 : 19 :
Will of the testator. Law does not say that every page should be signed. In paruck on The Indian Succession Act, Eighth Edition, 1993, the learned Author has commented on this point, at pages 118 and 119 of that book. The learned Author says that if a Will is written on several sheets of paper, it is not necessary that all the pages should be severally signed. One signatures on the last sheet, made with the intention of executing the Will is sufficient. Section 63 of the Indian Succession Act only says that the signatures of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as Will. The signatures or mark of the testator can be either at the commencement or at the end, but it must be so placed that it shall appear that it was intended to give effect to the instrument of a Will."
18 I have gone through all the judgments carefully given by both the sides. It is clear from the judgments that the it is the propounder of the Will who has to prove the veracity of the Will. It is his duty to remove all the suspicions which are attached with the Will. In the present case, challenge by the defendants with respect to the suspicious circumstance is :
i. that all the pages of the Will have not been signed and only the last page had been signed.
ii. Secondly, the first page of the Will mentions the date as 31.01.1974 whereas on the last page, the date mentioned is 30.01.1974.
iii. The third objection is that the first two unsigned pages of the Will mentioning the name of one of the legal heirs as Nirmal Behl but the last Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....19 of 45 : 20 :
page of the Will mentions her name as Nirmala Behl. The same is the objection with respect to the name of another sister as Urmil Behl whereas her name is Urmila Behl.
iv. The last objection is that in crossexamination of PW.1, the witness deposed that his address at the time of execution of Will was 1120, Laxmi Bai Nagar, New Delhi. However, in the Will, his address is mentioned as Laxmi Nagar, New Delhi and these two are different places.
19 If I take up all these objections, it is quite clear that all the mistakes, as I may say so, are clearly typographical errors and do not affect the sanctity of the testator. It is clear that there can be a typographical error by putting 31st day of January instead of 30th day as we all are aware that there were no computers or technology available in the year 1974 and such mistakes of wrong noting of date on the page No.1 can be attributed to the mistake of Typist. On the contrary, if I accept the arguments of defendants that first two pages of the Will have been changed, the person who had changed the pages i.e the plaintiff herein would have made sure that the date on page No.1 is shown as 30.01.1974 as has been mentioned on the last page. The other objection regarding the name of the sisters as Urmil and Nirmal instead of Urmila and Nirmala is also of no consequence as in Indian Context, we normally add or delete the alphabet 'a' with the first name and even otherwise, it does not affect the contents of the Will and it does not raise any suspicion that the Will is Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....20 of 45 : 21 :
forged or fabricated. Similarly the address of the attesting witness to be Laxmi Nagar which is shown in the Will and his recording the address in his cross examination as Laxmi nagar is also clearly a typographical error. As far as the last page is concerned, the same had been dealt in the judgment cited as Ammu Balachandran Vs. Mrs. O.T. Joseph (died) and others, AIR 1996 Madras 442 (supra), wherein in para No.49 it had been clearly stated that non signing of Will on all the pages cannot be said to be a suspicious circumstance since the Will is only declaration of the last Will of the testator. The law does not require that every page should be signed. Reference has also been made to Paruck on the Indian Succession Act where the author has stated that if the Will is written on every sheet of paper, it is not necessary that all the pages have to be separately signed and one signatures on the last page made with the intention of executing the Will is sufficient. Section 63 of the Indian Succession Act only shows that signatures or mark of the testator shall be so placed that it appears that he intended to give effect to writing the Will.
20 The plaintiff has clearly proved that the Will has given a fair distribution of his property. It is clearly stated in the Will that he had bequeathed the entire property to his wife Smt. Rekhi Devi by giving her life interest in the property without any right to alienate the same in any manner. As per the Will, after the death of Smt. Rekhi Devi, the property shall revert back to his first son, Sh. Swaraj Kumar Thapar, his unmarried daughter Kumari Vimla Thapar and Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....21 of 45 : 22 :
married daughter Smt. Nirmal Behl : that his first son, Swaraj Kumar Thapar and daughter Kumari Vimla Thapar will be the owner and will have the front side three rooms and back side rooms (ground floor) and his married widow daughter Smt. Nirmal Behl will inherit the two rooms on the first floor of the backside and two rooms of the above noted house. His daughter Kumari Vimla Thapar will only have life interest in the property and after her death, the share will revert back to the sons of Sh. Swaraj Kumar Thapar (plaintiff). The Testator has further explained that his other two daughters namely Smt. Kamla Sehgal and Smt. Urmil Suri are married and he had given sufficient money by way of presents in marriage and, therefore, they had no right or claim in his property.
As far as the other son Balraj Kumar Thapar is concerned, he had disinherited him for the reason that he married a Christian widow who was already having children from her previous Christian husband and therefore, he had completely severed all his relations with him. Balraj Kumar Thapar was not living with him and therefore, he had deprived Bal Raj Kumar Thapar of all his rights in the property. He has further stated that after death of his daughter Smt. Nirmal Behl, her share in the property shall revert back to her two sons namely Niraj and Dhiraj i.e. Defendants No.3 & 4. It is further stated that in case his wife, Smt. Rekhi Devi dies before him, his son, Sh. Swaraj Kumar Thapar and other two daughters namely Kumari Vimla Thapar and Smt. Nirmal Behl will inherit the property in the above noted manner.
Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....22 of 45 : 23 :
21 Considering the aforesaid contents of the Will and the objections raised by defendants No.1 & 2 who have not got any share in the property, I am of the opinion that the Testator has reasonably and fairly divided his property by giving logical reasons. Defendants No.1 & 2 have admitted the signatures of testator on page No.3 on the Will and have not challenged the same. The requirement of Section 63 & 68 of Indian Evidence Act have been duly discharged by examination of attesting witness i.e. PW.1. In my opinion, there are no suspicious circumstances with respect to the Will and nothing could be proved by defendants no.1 & 2 that Will is forged or fabricated. Some delay in seeking the declaration can never be a ground for stating the Will to be forged and fabricated if the surrounding circumstances do not speak of any forgery or fabrication and delay has been explained as has been the case in the present case. In view of the same, this issue is decided in favour of plaintiff and against the defendant ISSUE NO.3 :
"Whether the suit is within the prescribed period of limitation? Onus on parties."
22 The burden to prove this issue was upon both the parties. The case of the plaintiff is that after the death of his father in the year 1985, he was in possession of the entire property and there was never any occasion or any objection from the side of his sisters including defendant No.1 and original Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....23 of 45 : 24 :
defendant No.2. It is the admitted position of the defendants No.1 & 2 in their crossexamination that no demand for any share or any partition was made.
The limitation period shall start from the day when there was apprehension in the mind of the plaintiff with respect to threat to his title as per the Will which arose in the year, 2012 when defendant No.1 refused to give her 'No Objection Certificate' with respect to the Will. Hence, in my opinion, the suit is within the period of limitation. Accordingly, this issue is decided in favour of plaintiff and against the defendants.
ISSUE NO. 4 :
"Whether the plaintiff is entitled for a decree of declaration against the defendants as prayed in prayer clause (a) of the plaint? OPP"
23 The burden to prove this issue was upon the plaintiff.
Section 34 of Specific Relief Act reads as follows :
"Where any person is entitled to institute a suit against another denying or interested to deny, his title to a right, the Court in its discretion, is empowered to make a declaration that he is so entitled although the plaintiff has not asked for any other relier. The plaintiff must be incompetent at the time of institution of such declaratory suit to ask for any further relief relating to the delivery of possession of property or recovery of any sum of money. If, at the time of declaration suit, the plaintiff could successfully seek for the other relief of delivery of possession or recovery of money, it is not permissible for him to seek only for a declaration without asking for the other requisite relief. The further relief Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....24 of 45 : 25 :
that he can seek in addition to the declaration of title must be only against the same defendant but not against any other person. It cannot be said that the Court has no jurisdiction to entertain such a suit provided the requisite conditions specific in S.34 of the Specific Relief Act, 1963, are satisfied. The Court has to exercise the discretion vested in it judiciously but not arbitrarily."
24 It is well settled las that a person who is in possession of the property has a right to seek declaration simplicitor on the basis of documents in his possession. It is not disputed that the father of the plaintiff was the owner of the suit property. I have already decided the issue of maintainability of the present suit in favour of plaintiff. I have also decided that the Will of father of the plaintiff was genuine Will and not a forged and fabricated Will and the delay has also been reasonably explained. The requirement of law with respect to proving of the Will has also been discussed and requirement of law as per S.68 of Indian Evidence Act where attesting witness should come before the court and prove that Testator signed the Will in his presence and in the presence of two witnesses including himself and the Testator is in free and sound mental state. All the ingredients of Section 68 read with Section 63 of Indian Evidence Act have been satisfied in the present case and in view of the same, I am of the opinion that the plaintiff is entitled for a decree of declaration of three rooms on the ground floor of property bearing C5, Hauz Khas, New Delhi110016 as has been bequeathed to him by the Testator through his Will. The propounder is accordingly entitled to declaration as sought as per Will of late Sh. Ram Lal Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....25 of 45 : 26 :
Thapar. This issue is accordingly decided in favour of plaintiff and against the defendants ISSUE NO.5 :
"Whether the plaintiff is entitled for a decree of declaration against the defendants as prayed in prayer clause (a) of the plaint? OPP"
25 The burden to prove this issue was upon the plaintiff. According to defendants, the plaintiff is seeking declaration relief where impliedly consequential relief is being prayed. The argument is that even though it is a simplicitor suit for declaration, the plaintiff is seeking the relief wherein defendants No.1 & 2 shall be debarred from inheritance of the property of their father and thus it is a consequential relief and advalorem court fees should be paid.
26 Ld. Counsel for plaintiff has argued that the present suit is simplicitor for declaration without any consequential relief and has been filed under Article 17 Subclause (III) Schedule (II) of the Court Fees Act which pertains to suit for declaration. He has also relied on section 4 of the Suit Valuation Act, 1887 wherein it has been categorically stated that with respect to Article 17 Schedule III which relates to land or interest in land, the court fees shall not exceed the amount for the purpose of jurisdiction and shall not exceed the value of land as determined by rules framed by the government. It is the Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....26 of 45 : 27 :
case of the plaintiff that he is required to pay the court fees on a notional value and is not required to pay the advolerm court fees. His further argument is that the notional value shall not exceed the valuation fixed by the State Government and there is no minimum value at which suit under this category can be valued. In view of this submission that he has valued the suit for pecuniary jurisdiction at Rs.15 lacs.
27 I am in agreement with Ld. Counsel for the plaintiff. There is no consequential relief prayed by the plaintiff and the present case is a simplicitor suit for declaration. The plaintiff is in possession of the suit property and is not seeking possession or declaration debarring the defendants No.1 & 2 of their right of inheritance even if the suit is decreed. The defendants are still at liberty to seek their legal remedies regarding partition or possession even if they could prove the same in the court of law. It is well settled law that in the declartory suit, the value shall be on the basis of the pleadings in the plaint and the plaintiff is not required to pay advolerm court fees. My view is supported by the judgment of Punjab & Haryana High Court in Ram Singh & Ors. Vs. Labh Singh & Ors, AIR 2006 PH 129 (2006) 142 PLR 259; wherein it was held that in a simple suit for declaration regarding claim of ownership by virtue of various sale deeds, the plaintiffs were not required to pay any advolerm court fees. In another case of Allahabad High Court, titled Suresh and Ors. Vs. Chand And Ors, AIR 2007 ALL 113, 2007 (3) AWC 2638; wherein the plaintiffs had Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....27 of 45 : 28 :
filed the suit for declaration that they should be declared to be half owners of property in question on the basis of registered Will left by their mother, it was held that such suits are covered under Article 17(III) of second schedule of the Court Fees Act and not under Article 7(IV) (a) of the Court Fees Act. Reliance was also placed upon a judgment of Supreme Court in the State of UP Vs. Ram Krishan Burman(dead); wherein it was held that for granting declaration that plaintiff is the owner of certain properties, the suit shall not fall under under Section 7(IV) (a) of the Court Fees Act. It was held as follows :
"In my view, section under Section 7(IV) (a) of the Court Fees Act, as applicable, in the State of UP, is not applicable to the present case, for the simple reason, that it is not a suit for the cancellation of an instrument securing money and other property having a market value. The suit is for a declaration to the effect that the plaintiffs should be declared to be the half owners of the property in question on the basis of a registered Will. The suit is not for the cancellation of the Will nor is the suit for a declaration that the Will should be declared and null and void. Consequently, the judgment cited by the learned counsel for the respondents has no application to the present facts and circumstances of the case. Even though, the Will is an instrument securing money, the present suit is not a suit, for declaration seeking the Will to be null and void nor the suit has been filed for the cancellation of the Will. Consequently, the provision of section 7 (ivA) of the Court Fees Act is not applicable.
Similarly, Article 17(iii) of the Court Fees Act relates to a case where no consequential relief is prayed in a suit for a declaration. In the present case, the petitioners have prayed for a declaration that they should be declared to be the half owners of the property Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....28 of 45 : 29 :
in question on the basis of a registered Will and has further prayed for a consequential relief, namely, that the sale deed should be cancelled. Therefore, article 17(iii) of the Court Fees Act will not be applicable and Section (iv) (a) of the Act would be applicable, in as much as, the said provision / section applies to a suit filed for obtaining a declaratory decree with a consequential relief."
In Bhagwan Kaur And Ors. Vs. Amrik Singh and Ors., AIR 2007 PH 100, (2006) 144 PLR 649; it was held that if no consequential relief is claimed or could be claimed in the suit, then Section 7(iv)(c) of the Act will not be attracted. In a suit to obtain declaratory decree where no consequential relief is prayed, Subclause (iii) of Article 17 of Schedule II of the Act shall be applicable.
Lastly, it was held in Bhag Singh Vs. Jarnail Singh and Ors, (19902) 98 PLR 223; that where the plaintiff is in possession, ad valorem court fee not required to be affixed.
28 In view of the above discussion and the fact that the plaintiff is praying for a simplicitor suit for declaration of his legal title and no consequential relief has been prayed as admittedly he is already in possession of the suit property, I am of the view that the plaintiff is not required to pay advalorem court fees and his fixation has to be notional. Therefore, in my opinion, this issue is decided in favour of the plaintiff and against the defendants. Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....29 of 45 : 30 :
ISSUE NO.6 :
"Whether the suit has been properly valued for the purposes of pecuniary jurisdiction? OPP"
29 Upon the issue of maintainability, both the parties have relied upon various judgments and I propose to discuss the judgments and the law laid down in those judgments.
30 The law with respect to maintainability is dealt with in Indian Succession Act and the relevant sections are section 213 and section 57 (a& b). It is not disputed that probate of Will is not necessary in Delhi with respect to the property situated in Delhi and I shall discuss the same, as has been discussed by various judgments relied upon by both the sides.
31 The burden to prove this issue was upon the defendants. The defendants No.1 & 2 have objected to the maintainability of the present suit as no probate has been obtained from the competent court. Further, the defendants No.3 & 4 have supported the case of the plaintiff and stated that no probate is required in Delhi for property in Delhi with respect to Will made in Delhi. In order to support his arguments, Ld. Counsel for defendants No.1 & 2 has relied upon the following judgments :
Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....30 of 45 : 31 :
32 In Manmohan Singh & Anr. Vs. Joginder Kaur and Ors. 2002 (64) DR 1293; wherein Hon'ble Mr. Justice J.D. Kapoor of Delhi High Court held that Indian Succession Act 1925 - Section 276 - Probate - Specifically provides for petition for probate any other remedy is forbidden plaintiff did not seek a probate on the basis of the Will - Suit for declaration filed - Suit under Sections 208, 214 and 295 can be filed only for obtaining specific relief like against dispossession - Suit for declaration by way of substitute to a probate petition is not allowed - suit is not maintainable.
33 The second judgment relied upon by the defendants No.1 & 2 is Shri Gurmeet Singh Chopra Vs. Taruna Chopra & Ors, wherein it was held by Hon'ble Mr. Justice Shiv Narain Dhingra of Delhi High Court that the only court which has jurisdiction to adjudicate about the genuineness and validity of the Will is the Probate Court. The Probate Court has exclusive jurisdiction to decide about the Will and the Civil Court does not have jurisdiction to adjudicate about the genuineness of the Will.
34 On the other hand, plaintiff has relied on a number of judgments which are as follows :
The plaintiff has relied on the judgment Santosh Kakkar & ors.
Vs. Ram Prasad & Ors passed by Hon'ble Mr. Justice of J.B. Goel of Hon'ble Delhi High Court wherein it was held as follows :
Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....31 of 45 : 32 :
The relevant provisions of law as contained in Section 213 and Section 57 of the Indian Succession Act, 1925 read as Under :
"Section 213. Right as executor of legatee when established (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted Letters of Administration with the Will or with a copy of an authenticated copy of the Will annexed.
(2) This section shall not apply in the case of Wills made in by Muhammadans, and shall only apply :
(i) in case of Wills made by an Hindu, Budhist, Sikh or Jaina where such Wills are of the classes specified in Clauses (a) and (b) of Section 57; and
(ii) xxxxxxxxxx "Section 57, The provisions of this part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply :
(a) to all Wills and codicils made by any Hindu, Budhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date wire subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras, and Bombay; and
(b) to all such Wills and codicils made outside those territories and limits so far as relate to immovable property situated within those territories or limits; and
(c) to all Wills and codicils made by any Hindu, Budhist, Sikh or Jaina on or after the first day of January, 1927, to which these provisions are not applied by clauses (a) and (b) Provided that marriage shall not revoke any such Will or codicil."
A reading of these provisions make it clear that Section 213(1) Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....32 of 45 : 33 :
requiring probate does not apply to Wills made outside Bengal and the local limits of the ordinary original jurisdiction of the High Court of Madras and Bombay except where such Wills relate to immovable properties situated within those territories. This has also been so held by this Court in the case of Arjun Dass (supra), by the Punjab High Court in Ram Chand Vs. Sardara Singh, AIR 1982 Pun. 382 and M/s Bihari Lal Ram Charan (supra) and by Allahabad High Court in Bhaiji (supra).
The plaintiff has further relied on the judgment Mrs. Winfired Nora Theophilus Vs. Mrs. Lila Deane and others, AIR 2002 Delhi 6;
wherein it was held by Hon'ble Mr. Justice A.K. Sikri as follows :
On the other hand learned counsel for the defendants submitted that in Delhi no probate was required in respect of a Will to administer the property. In support of his submission be relied upon the following judgments :
i. Murli Dhar Dass Vs. Shashi Mohan, (1997) 68 Delhi LT 284;
ii. Arjan Dass Vs. Madan Lal, (1970) 2 Ren CR 785 (Delhi); iii. Didar Singh Cheeda Vs. Sohan Singh Ram Singh, AIR 1966 Punjab 282;
iv. Behari lal Ram Charan Vs. Karam Chand Sahni, AIR 1968 Punjab 108.
On interpretation of Section 213 read with section 57 (a) and (b), the Courts have opined that where the Will is made by Hindu, Budhist, Sikh and Jaina and were subject to the Lt. Governor of Bengal or within the local limits of Ordinary Original Civil Jurisdiction of High Court of Judicature at Madras and Bombay or even made outside but relating to immovable property within the aforesaid territories that embargo contained in Section 213 shall Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....33 of 45 : 34 :
apply. From this it stands concluded that if Will is made by Hindu, Budhist, Sikh or Jaina outside Bengal, madras or Bombay then embargo contained in Section 213 shall not apply. This is what the various judgments cited by the learned counsel for the defendants decide. Therefore, there is no problem in arriving at the conclusion that if the Will is made in Delhi relating to immovable property in Delhi by India, Budhist, Sikh or Jaina, no probate is required.
The plaintiff has further relied upon the judgment titled Murli Dhar Dua & Ors. Vs. Shashi Madan passed by Hon'ble Mr. Justice K.S. Gupta of Delhi High Court wherein it was held that there is no necessity of probate of Will executed in Delhi when the suit property is also in Delhi.
The plaintiff has further relied on the judgment titled Sh. Baldev Raj Vs. Sh. Man Mohan & Ors passed by Hon'ble Mr. Justice S.K. Kaul of Delhi High Court wherein it was held that :
"In so far as the submission of the learned senior counsel for the appellant in respect of the alleged Will is concerned, we are unable to agree with the submission that the validity of the Will cannot be decided in the suit filed by the plaintiff in which the defendant has set up the Will. The validity of the Will can always be determined in a collateral proceeding. The present suit is one for partition and the respondents have in their defense prepounded the alleged Will. In determining whether the appellant is entitled to a decree for partition or not, the title of the respondents will depend on the alleged Will and thus the validity of the same can be adjudicated upon in the present proceedings. The Supreme Court in T. Venakata Narayana case (supra) was dealing with a suit for mere injunction and in that context Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....34 of 45 : 35 :
observations were made which have no application to the fact of the present case."
The plaintiff has further relied upon the judgment titled Arjan Dass Vs. Madan Lal passed by Hon'ble Mr. Justice Om Prakash of Delhi High Court wherein it was held that :
"A plaintiff reading of Section 213 and section 57 aforesaid makes it abundantly clear that the provisions of section 213 requiring probate do not apply to Will made outside Bengal and teh local limits of the ordinary original jurisdiction of the High Courts of Madras and Bombay except when such Wills relate to property situated in the territories of Bengal or within the aforesaid local limits. If any authority is required, reference may be to Ram Chand Vs. Sardara Singh. The property bequeathed, in the present case, is not situated with the local limits of the ordinary jurisdiction of High Courts of Madras and Bombay or in the territories of Bengal. The provisions of section 213 were not attracted and Shri Madan Lal could maintain the application for execution of the eviction order without obtaining probate of the Will of Shri Lakhu Ram."
Plaintiff has further relied upon the judgment titled M/s Behari Lal Ram Charan Vs. Karan Chand Sahni, AIR 1968 Punjab and Haryana 108 passed by Hon'ble Mr. Chief. Justice Mehar Singh and Hon'ble Mr. Justice J.S. Bedi wherein it was held that :
"Agreeing with the view of Falshaw, J., we hold that in a suit instituted in Delhi it is not necessary to obtain probate of a Will before any claim could be based on that Will. This petition is, consequently, dismissed with no order as to costs."
Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....35 of 45 : 36 :
Plaintiff has further relied upon the judgment titled Col. Adarsh Rattan and others Vs. State bank of India, Jalandhar, AIR 1987 Punjab and Haryana 232 passed by Hon'ble Mr. Justice M.M. Punchhi wherein it was held that :
"Equally fallacious is the argument that in face of the provisions of the Succession Act whereunder letters of administration and obtainable, S.34 of the Specific Relief Act and S.9 of the CPC would debar the maintenance of the suit. There is no such impediment on the rights of the plaintiffs to claim the estate of the deceased wherever it was lying."
Plaintiff has further relied upon the judgment titled Pradeep Bhalla Vs. Sangeeta passed Hon'ble Mr. Justice Pradeep Nandrajog of Hon'ble Delhi High Court wherein it was held that :
"I need not note the large number of authorities which, while dealing with section 57 and section 213 of the Indian Succession Act, 1925 have opined that pertaining to Hindus and in relation to Wills executed in the Union Territory of Delhi, probate of the Will is not a sine qua non for enforcing a right under the Will.
Decision of S.K. Kaul J, reported as 2005 (vii) AD (Delhi) 878, Rajan Suri vs. State & Anr may be noted. The said decision has noted various authorities of this court as also Punjab High Court on the point that for Hindus, pertaining to Wills executed in Delhi, there is no requirement of obtaining a probate as a sine qua non before enforcing a right under the Will.
Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....36 of 45 : 37 :
Latest decision of this Court on the point is pronounced by J.P. Singh, J reported as 2006 (VII) AD (Delhi) 652, Shashi Roy vs. Archana Chopra & Ors."
Plaintiff has further relied upon the judgment titled Rajan Suri & Anr. Vs. State & Another passed by Hon'ble Mr. Justice Sanjay Kishan Kaul, AIR 2006 Delhi 148 wherein it was held that :
"In our opinion, it is clear that a decision as to the proof of the Will given by any civil Court can under no circumstances operate as 'res judicata' in probate proceedings taken out in the Probate court. In a civil suit the Court is only concerned with deciding the rights between the parties. In a Probate Court the position is entirely different.
The Probate Court is a Court of conscience and it does not decide rights between parties but has to deliver a judgment which would become a judgment 'in rent' and this judgment will bind not only the parties before it but the whole world. Therefore, the approach of a Probate Court to the question before it is different from the approach of a civil Court adjudicating upon the rights between the parties, and this position is made clear by the provisions of Section 41, Evidence Act.
It is only a final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant, and such judgment, order or decree has been made conclusive proof with regard to the legal character which it declares.
Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....37 of 45 : 38 :
Therefore, a judgment 'in rent' which is the judgment with which S.41 deals, is a judgment passed by a Court as the exclusive Court dealing with probate matters. A civil court dealing with the same question, deciding the same issue, cannot pass a judgment which would bind the world and would constitute a judgment 'in rent'. Therefore, even though the civil Court here was deciding a question as to the proof of the Will and the codicil have been proved, even so in judgment Will have no binding effect as a judgment 'in rent'. From this it must follow that this decision cannot operate as 'res judicata' and cannot bind the Probate Court. The Probate Court must applyits own mind and must satisfy its own conscience that the Will or the codicil put forward as the last Will or codicil of the deceased is his last Will and codicil. It must be satisfied as to the execution of the document, it must be satisfied as to the testamentary capacity of the deceased, and that satisfaction cannot be influenced or affected by any decision given by any Civil Court although the issue raised was identical."
Plaintiff has further relied upon the judgment titled Rajesh Vs. Munni Devi passed by Hon'ble Ms. Justice Indermeet Kaur of Hon'ble High Court of Delhi wherein it was held that :
"This is a second appeal. It is yet at the stage of admission. On behalf of the appellant, it has been urged that the question about the genuineness of the Will could only be decided by the Probate Court and civil court has no jurisdiction to go into the matter. Reliance has been placed upon 154 (2008) DLT 354, Priyanka vivek Batra Vs. Neera Malik & Ors., to support the submission that under Section 34 of the Specific Relief Act, declaration can be granted only of any legal character or right to any property. It is pointed out that in this case, the Bench of the Delhi High Court had held that no declaration can be made during the pendency of probate proceedings. Reliance upon this judgment is totally Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....38 of 45 : 39 :
misplaced. Admittedly, in this case, there are no probate proceedings pending. It is also an admitted case that in Union Territory of Delhi, probate of a Will is not mandatory. The judgment of 2002 V AD (Delhi) 733 Manmohan Singh Vs. Smt. Joginder Kaur & Ors., also does not help the case of the appellant. In this case, it had, in fact, been held that a suit for declaration is maintainable where either a party has been evicted from possession, secondly, a person must possess a letter of administration before filing the suit and thirdly, where there is a contention of the fact that proceedings shall take as nearly as may be a form of a regular suit. Condition No.1 has been fulfilled; plaintiff has categorically averred that she had been evicted from her possession; suit was maintainable. Reliance upon the judgment of the Madras Bench reported in AIR 1992 Madras 136 Alaggmai and Ors. Vs. Rakkammal is also unwarranted. In this case, court has held that where a decision is rendered by an ordinary civil court and a decision is rendered by a Probate Court on question of truth, validity, genuineness and due execution of a Will, the decision of Probate Court is a judgment in rem, which will bind not only the parties before it, butt the whole world. There is no dispute to this proposition. It is wholly inapplicable to the present case as admittedly there are no probate proceedings filed or pending."
The latest judgment on this issue has been given Hon'ble High Court of Delhi Plaintiff titled Chetan Dayal Vs. Aruna Malhotra & Ors passed by Hon'ble Mr. Justice V.K. Jain wherein it is held that there is no necessity of probate in Delhi and suit for declaration is maintainable. The relevant portions of the judgment are as follows :
"As regards jurisdiction, the learned counsel for the defendants No.1 & 2 has placed reliance upon T. Venkata Narayana and Others Vs. Venkata Subbamma and Ors. (1996) 4 SCC 457 Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....39 of 45 : 40 :
and Chiranji Lal Shrilal Goenka Vs. Jasjit Singh and Others (1993) 2 SCC 507. In the case of Chiranjilal Shrilal 9supra), one Chiranjilal Shrilal Goenka, who was involved in several suits, one of which was pending at the stage of appeal, died leaving behind a Will whereby he appointed his younger daughter as the sole executrix of the Will. One Radhey Shyam, claimed to be adopted son of Shri Chiranji Shrilal. He along with his wife filed substitution application u/o 22 Rule 3 CPC setting up rival claim.
When a dispute arose as to who would represent the estate of Chiranjilal Shrilal, all the three were brought on record by the Court. By a further order, an arbitrator was appointed to settle the dispute as to who would be the legal heirs of the estate of late Chiranjilal Shrilal. Pursuant to the order, the arbitrator Justice V.S. Deshpande entered upon teh arbitration. The counsel for Radhey Shyam gave a letter giving details of all the pending suits and one of the items mentioned therein was the suit title S.N. Rungta Vs. R.C. Goenka. The schedule of the suits was annexed to the order whereby the arbitrator was appointed. One of the issues framed by the Arbitrator was with respect to execution of the Will dated 29.10.1982. Another issue was with respect to the execution of the Will dated 04.07.1978 in case the execution of the Will dated 29.10.1982 was not proved. Simultaneous proceedings in the probate suit were pursued in Bombay High Court where the learned Judge expressed doubt as to whether the arbitrator had jurisdiction to decide the probate suit. Similarly on an application made before the arbitrator for clarification, he too stated that when the order of his appointment was passed and all the pending proceedings were referred to in the schedule, it will be assumed that the Court had applied its mind and referred for arbitration the probate suit as well. But, he could not give any clarification in that behalf. He felt that it would be expedient to the applicant seek clarification from this Court.
It was contended before Supreme Court that the Probate Court had exclusive jurisdiction to grant probate of the Will to the applicant for due implementation of the directions contained in the Will and such an issue could not be referred to arbitration. The contention of the respondent, on the other hand, was that the Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....40 of 45 : 41 :
applicant had consented to refer the probate suit for arbitration and the plea taken by him was just and afterthought. It was also submitted that since the Court had with a view to decide all the disputes referred them for arbitration, the arbitrator alone had got jurisdiction and the award would be subject to the approval or disapproval of the Court. His contention was that instead of parallel proceedings before the probate court and the arbitrator to be permitted to continue, it was desirable that the arbitrator should decide issues No.1 & 2 with other issues and determine as to who would be the legal heirs and his decision would be binding in the probate suit. It was in these circumstances and on these facts that Supreme Court concluded that it is the Probate Court which has been conferred with exclusive jurisdiction to grant probate of the Will or refuse the same. It was observed that grant of probate by a Court of competent jurisdiction is in the nature of the proceeding in rem which binds not only the parties before the Court, but also all other persons in all proceedings arising out of the Will or claims under or connected therewith. It was further observed that the award deprives the parties of their statutory right of appeal provided under section 299 of Indian Succession Act. It was also observed that the Probate Court alone had exclusive jurisdiction and the Civil Court on original side or the Arbitrator does not get jurisdiction even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix, the applicant. It was made clear that his exposition of law was only for the purpose of finding the jurisdiction of the arbitrator.
In T. Venkata Narayana (supra), the scope of the suit was limited to interpretation of the compromise decree passed in the partition suit. The only question before the Supreme Court was as to whether the respondent was entitled to adduce secondary evidence to prove the alleged Will said to have been executed in her favour. In that case, a compromise decree for partition came to be passed by the District Court. Thereafter, a civil suit was filed for perpetual injunction against alienation of the said property. On death of the defendant, the respondent came on Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....41 of 45 : 42 :
record as her legal heirs. They claimed that the deceased defendant had executed a Will in their favour. The question which came up for consideration before Supreme Court was as to whether the respondents were entitled to adduce secondary evidence to prove the Will which they were setting up. It was in this context that Supreme Court observed that a same suit for injunction could not be converted into a suit for probate of a Will which has to be proved, according to law, in the Court having competence and jurisdiction, according to the procedure provided under the Indian Succession Act and a mere suit for injunction could not be converted into a probate suit.
In the case before this Court, no parallel proceedings with respect to the Will set up by the plaintiff are pending. Infact, no proceedings with respect to genuineness or otherwise of the Will dated 04.02.1997 have been initiated except two suits in Punjab, one filed by the plaintiff seeking declaration that the Will dated 04.02.1997 was the last Will of Shri Dayal Chand Kaith and the other filed by defendant No.2 through defendant no.1 as his attorney, seeking to challenge the aforesaid Will. Admittedly, both those suits were decided in favour of the plaintiff. In those suits, it was held that the Will dated 04.02.1997 was the last and final Will of late Shri Dayal Chand Kaith. As regards partition of Delhi property, it was held that Chetan Dayal was at liberty to file a suit at the place where the property is situated. In this Court, in the proceedings initiated by defendant No.2 for obtaining Letter of Administration in respect of the estate of late Shri Dayal Chand Kaith, the Court, while dismissing the petition on the ground of limitation, took the view that he decision of the Courts at Punjab was not binding on this Court in those proceedings. Another reason given by the Court for dismissing the petition was that an earlier petition filed by the executor of the Will had already been dismissed.
In a civil suit whenever a party to the litigation set up a Will, which is disputed by the other party, the Civil Court with a view to decide the controversy involved in the suit is required to Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....42 of 45 : 43 :
adjudicate upon the execution and validity of the Will set up in the pleadings, through the finding of the Civil Court not being judgment in rem will not bind those who are not parties to the suit. It is not in dispute that probate of the Will of a Hindu is not obligatory through there no bar to grant of probate or Letter of Administration, as the case may be. Section 213(1) of Indian Succession Act provides that no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. However, subsection (2) of the aforesaid Section, to the extent it is relevant, stiuplates that the said Section shall only apply in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of Section 57. Section 57(a) applies to all Wills made by any Hindu, Buddhist, Sikh or Jaina on or after 01.09.1870 within the territories which at the said date were subject to the Lt. Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of judicature at Madras and Bombay and clause (b) applies to all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits. Therefore, if one or more Wills are set in civil suit, the Court cannot refuse to adjudicate upon the genuineness and execution of the Will and compel the parties to seek probate before relying upon the Will. Doing that would amount to making probate of the Will a Hindu mandatory, which would not be in consonance with the provisions of Indian Succession Act.
The plaintiff has further relied upon the judgment titled Kanwaljeet Singh Dhillon Vs. Hardyal Singh Dhillon & Others wherein Hon'ble Mr. Justice Tarun Chatterjee and Hon'ble Mr. Justice Dalveer Bhandari held as follows :
"Specific Relief Act (47 of 1963), S.34 - Succession Act (39 of Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....43 of 45 : 44 :
1925), S.217, S.227 - suit for declaration of title and permanent injunction - Mere fact that probate of Will was granted by competent Court in respect of property - Does not bar civil suit for declaration of title and permanent injunction in respect of selfsame property - Probate Court is not competent to decide title or whether property was joint ancestral property."
"It is well settled law that the functions of a probate Court are to see that the Will executed by the testator was actually executed by him in a sound disposing state of mind without coercion or under inference and the same was duly attested. It was, therefore, not competent for the Probate Court to determine whether Late S. Kirpal Singh had or had not the authority to dispose of the suit properties which he purported to have bequeathed by his Will. The Probate Court is also not competent to determine the question of title to the suit properties nor will it go into question whether the suit properties bequeathed by the Will were joint ancestral properties or acquired properties of the testator."
35 Upon perusal of the above judgments, it is quite clear that there is no necessity for obtaining probate when Will is executed in Delhi for the property situated in Delhi. The proceedings before the Probate Court are different and distinct from the Civil Court and, therefore, in view of the above discussed laws in the aforesaid citations by plaintiff, I am of the opinion that suit of the plaintiff is maintainable. The plaintiff is in possession of his portion which has been bequeathed by the said Will and, therefore, there is no necessity for obtaining any consequential relief and simplicitor suit for declaration of his legal title is maintainable. The judgment of Chetan Dayal Vs. Aruna Malhotra by Hon'ble Mr. Justice V.K. Jain decisively laid down law on the maintainability of Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....44 of 45 : 45 :
the present suit after discussing the law set by various judgments in favour of plaintiff. This issue is decided in favour of plaintiff and against the defendant.
36 In view of the position of the aforesaid issues, I declare that the plaintiff is the owner of front side three rooms on the ground floor of the suit property, as has been stated in the Will dated 31.01.1974. Decreesheet be drawn accordingly. No orders as to costs.
37 The file be consigned to Record Room after completion of necessary formalities.
Dictated and announced in the open court on 29.05.2014 (SIDHARTH SHARMA) ADJ04 (South) Saket Courts / New Delhi 29.05.2014 Sh. Swaraj Kumar Thapar Vs. Smt. Kamla Sehgal and others Contd....45 of 45