Delhi High Court
Arjun Som Dutt & Anr vs Madhvi Bery & Ors on 1 April, 2014
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 1st April, 2014.
+ CS(OS) 1412/2007, I.As. No.8817/2007 (u/O 39 R-1&2 CPC),
6357/2010 (u/O 22 R-4 CPC), 6358/2010 (for condonation of 350
days delay), 14452/2012 (of D-1&2 u/O 7 R-11 CPC) & 8414/2013
(u/O 22 R-4 CPC)
ARJUN SOM DUTT & ANR ..... Plaintiffs
Through: Ms. Payal Juneja, Advocate.
Versus
MADHVI BERY & ORS ..... Defendants
Through: Ms. Sagari Dhanda, Adv. for D-1&2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The two plaintiffs have filed this suit, (i) for declaration of the
purported Codicil dated 7th April, 2006 executed by Ms. Kunti Verman as
invalid ab initio, illegal and null and void; (ii) for partition of the movable
and immovable assets of the said Ms. Kunti Verman including property
No.2A, Friends Colony (West), New Delhi; and, (iii) for ancillary reliefs of
injunction and rendition of accounts, pleading:
(a) that Ms. Kunti Verman aforesaid was the sister of the paternal
grandmother Ms. Parmeshwari Som Dutt of the two plaintiffs;
(b) that Ms. Kunti Verman made a Will dated 1st August, 1994
whereunder she bequeathed her property No.2A, Friends Colony
CS(OS) No.1412/2007 Page 1 of 15
(West), New Delhi jointly and equally to her two sisters Ms. Umi
Khanna and defendant No.1 Mrs. Madhvi Bery;
(c) that the paternal grandmother of the plaintiffs Ms. Parmeshwari
Som Dutt was also one of the beneficiaries of the aforementioned
Will dated 1st August, 1994 of Ms. Kunti Verman;
(d) that Ms. Parmeshwari Som Dutt, the paternal grandmother of
the two plaintiffs died on 29th September, 2005 leaving inter alia the
plaintiffs as her legal heirs.
(e) that Ms. Umi Khanna aforesaid also died on 1 st March, 2006
and since she was unmarried and had no issue, the share in the
property aforesaid bequeathed by Ms. Kunti Verman under her Will
aforesaid to Ms. Umi Khanna, devolved upon the brothers and sisters
of Ms. Umi Khanna and their legal heirs including the plaintiffs;
(f) that Ms. Kunti Verman died on 31st May, 2006;
(g) that after the death of Ms. Kunti Verman, the defendant No.1
has taken possession of the property aforesaid setting up the Codicil
dated 7th April, 2006 aforesaid of Ms. Kunti Verman whereunder the
entire property has been bequeathed to the defendant No.1;
(h) that the defendant No.1 has fabricated the Codicil aforesaid and
CS(OS) No.1412/2007 Page 2 of 15
if at all the thumb impression thereon is of Ms. Kunti Verman, the
same has been obtained through undue influence, fraud and coercion;
(i) that the Codicil dated 7th April, 2006 was purportedly executed
barely 53 days before the demise of Ms. Kunti Verman and Ms. Kunti
Verman was seriously ill at that time and not in a position to dispose
of her property;
(j) that the Codicil aforesaid is not executed in accordance with
law;
(k) that the plaintiffs are entitled to their lawful share in the assets
of Ms. Kunti Verman including those bequeathed by Ms. Kunti
Verman to Ms. Umi Khanna under the Will dated 1st August, 1994.
2. Summons of the suit and notice of the application for interim relief
were issued though no interim relief granted to the plaintiffs.
3. Only the defendants No.1&2 (defendant No.2 is the husband of the
defendant No.1) have filed their written statement and to which a replication
has been filed by the plaintiffs.
4. Else, the suit has been languishing for the last nearly seven years for
service of the other defendants (i.e. the other brothers/sisters of Ms. Kunti
Verman and their legal heirs) and for service of the legal heirs of the
CS(OS) No.1412/2007 Page 3 of 15
defendants No.3 & 6 who are stated to have died during the pendency of the
suit.
5. It is inter alia the plea of the defendants No.1&2 in their written
statement that the plaintiffs have no cause of action for the reliefs of
challenging the Codicil dated 7th April, 2006 of Ms. Kunti Verman and/or
for claiming partition of the property No.2A, Friends Colony (West), New
Delhi which admittedly belonged to Ms. Kunti Verman, because, (I) Ms.
Parmeshwari Som Dutt, grandmother of the plaintiffs through whom the
plaintiffs claim, herself had no right to or share in the said property; (II)
even if the Codicil is declared null and void, even then the plaintiffs do not
get any right or share in the property.
6. The plaintiffs in their replication, in response to the aforesaid defence
in the written statement, have pleaded that since the Will dated 1st August,
1994 of half share in property No.2A, Friends Colony (West), New Delhi in
favour of Ms. Umi Khanna did not provide for to whom, what was
bequeathed to Ms. Umi Khanna was to belong in the event of her death,
therefore what was bequeathed to her i.e. Ms. Umi Khanna has to be divided
between all the legal heirs of the deceased.
7. The defendants No.1&2 have also filed I.A. No.14452/2012 under
CS(OS) No.1412/2007 Page 4 of 15
Order VII Rule 11 of the Civil Procedure Code (CPC), 1908 for rejection of
the plaint on the same grounds as noted in para 5 above and to which
application a reply has been filed by the plaintiffs.
8. The application of the defendants No.1&2 under Order VII Rule 11 of
the CPC is for consideration today. The counsel for the plaintiffs has
chosen not to appear and has sent a proxy counsel who, except for seeking
adjournment has no knowledge of the case. Upon reason for the absence of
the counsel for the plaintiffs being asked, no reason also is forthcoming
except for stating that the counsel has desired that a date be given.
9. Suits cannot be allowed to be kept pending in this manner, specially
when there is no reason for non-appearance of the counsel for the plaintiffs
and when the application is posted today for hearing and has already
remained pending for a considerable length of time.
10. I have heard the counsel for the defendants No.1&2 on the application
under Order VII Rule 11 CPC and have perused the pleadings and the
documents.
11. Ms. Kunti Verman, in her Will dated 1st August, 1994, which is
accepted by the plaintiffs as well as by the defendants No.1&2, has stated:
(i) that she possessed of the following properties:
CS(OS) No.1412/2007 Page 5 of 15
(A) Property No.2A, Friends Colony (West), New Delhi;
(B) Monies in her bank accounts;
(C) Investments with National Thermal Power Corporation;
(D) Investments with Unit Trust of India and Industrial
Development Bank;
(E) Jewellery lying in her Safe Deposit Locker;
(F) Household and personal effects.
(ii) that she was the sole owner of all the aforesaid assets;
(iii) that her husband had pre-deceased her on 21st October, 1979;
(iv) that she had no offspring of her own;
(v) that her husband had two daughters from a previous marriage
but the said daughters had no claim over any of her aforesaid
properties.
12. Ms. Kunti Verman vide her Will dated 1st August, 1994, bequeathed:
(a) her property No.2A, Friends Colony (West), New Delhi to her
two sisters Ms. Umi Khanna and defendant No.1;
(b) a sum of Rs.1 lakh to the Institution of Electronics and
Telecommunication Engineers for establishing a memorial in the
name of her deceased husband;
CS(OS) No.1412/2007 Page 6 of 15
(c) a sum of Rs.1 lakh to her husband's Trust managed by the
Standards Engineers Society;
(d) Rs.25,000/- each to the six children of the daughters of her
husband from an earlier marriage;
(e) Rs.20,000/- to her domestic help;
(f) certain household goods to the daughters of her husband from
an earlier marriage;
(g) "the balance of her remaining assets, such as cash, securities,
investments, fixed deposits, jewellery, silverware, motor car,
household goods, furniture etc. that remained after the distribution of
the bequests listed in the Will, to her other five brothers and sisters
including to Ms. Parmeshwari Som Dutt, paternal grandmother of the
plaintiffs, equally".
13. Ms. Kunti Verman vide her registered Codicil dated 7th April, 2006
which is challenged in this suit, taking note of the demise of Ms. Umi
Khanna (to whom half share in property No.2A, Friends Colony (West),
New Delhi had been bequeathed) and of Ms. Parmeshwari Som Dutt and
another brother Major Avinash Chander Khanna (to both of whom certain
bequests had been made under the Will),
CS(OS) No.1412/2007 Page 7 of 15
(I) bequeathed property No.2A, Friends Colony (West), New
Delhi exclusively to the defendant No.1 and in the event of the
defendant No.1 also pre-deceasing Ms. Kunti Verman to defendant
no.1's heirs in equal share;
(II) bequeathed the residuary share which was to fall on Ms.
Parmeshwari Som Dutt to Mr. Arun Som Dutt (defendant No.6) son
of Ms. Parmeshwari Som Dutt;
(III) bequeathed the bequest which under the Will dated 1 st August,
1994 was made in favour of Major Avinash Chander Khanna, in
favour of Mr. Ashok Khanna (defendant No.8) son of Major Avinash
Chander Khanna;
(IV) nominated the defendant No.2 as the executor of her Will.
14. The question which arises for consideration is, whether in the factual
situation aforesaid, the plaintiffs, who are the son and daughter respectively
of another son of Ms. Parmeshwari Som Dutt, have any locus to challenge
the Codicil dated 7th April, 2006 aforesaid of Ms. Kunti Verman or are
entitled to a share in the estate left by Ms. Kunti Verman so as to be entitled
to claim partition thereof.
15. This Court, in O.N. Sharma Vs. Raj Kishore Gupta 187 (2012) DLT
CS(OS) No.1412/2007 Page 8 of 15
130 and in order dated 23rd July, 2012 in Test. Cas. No.41/1995 titled Prof.
B.R. Grover Vs. The State, has held that objections to a Will (as also to a
Codicil) can be filed either by legal heirs or others who inherit the property
of the deceased under the applicable law of succession or under a different
Will and that a person who is not entitled to the estate of the deceased has
no locus standi to file such objections. I have in order dated 31st May, 2013
in CS(OS) No.1166/2013 titled Vinod Kumar Vs. Virender Kumar also
discussed the law on this aspect and held that a challenge to a Will/Codicil
can be made only by a person having caveatable interest i.e. a right to
succession in the event of intestacy and a person who has no caveatable
interest is not entitled to challenge the Will/Codicil. In view thereof, need is
not felt to discuss the said aspect in detail. Though the question, in Jagjit
Singh Vs. Pamela Manmohan Singh (2010) 5 SCC 157 has been referred
to a larger bench, but on a different aspect.
16. Thus, only if it is found that the plaintiffs have a chance of
inheritance to the estate of Ms. Kunti Verman, whether as her natural heirs
under the law of succession applicable to her (in the event of the Codicil
dated 7th April, 2006 being held to be invalid) or under her Will dated 1st
August, 1994, can it be said that the plaintiffs have a locus standi to
CS(OS) No.1412/2007 Page 9 of 15
challenge the Codicil dated 7th April, 2006. Else, the challenge by the
plaintiffs to the said Codicil and on which the other reliefs claimed in the
suit are predicated, has to be summarily dismissed.
17. Under the Will dated 1st August, 1994, what was bequeathed by Ms.
Kunti Verman to Ms. Parmeshwari Som Dutt, paternal grandmother of the
plaintiffs, was only a 1/5th share in the cash, securities, investments, fixed
deposits, jewellery, silverware, motor car, household goods, furniture etc.
which remained after the distribution of the specified bequests under the
said Will. However, Ms. Parmeshwari Som Dutt, paternal grandmother of
the plaintiffs pre-deceased Ms. Kunti Verman. Section 105 of the Indian
Succession Act, 1925 provides that if the legatee does not survive the
testator, the legacy cannot take effect, but shall lapse and form part of the
residue of the testator's property, unless it appears by the Will that the
testator intended that it should go to some other person. The Will dated 1st
August, 1994 did not provide as to whom the share in the balance cash,
securities, investments etc. which was bequeathed by Ms. Kunti Verman to
Ms. Parmeshwari Som Dutt was to go in the event of Ms. Parmeshwari Som
Dutt pre-deceasing Ms. Kunti Verman. Thus, the same, as per Section 105
of the Indian Succession Act was to form part of the residue of the testator's
CS(OS) No.1412/2007 Page 10 of 15
property. The Will dated 1st August, 1994 also did not provide as to what
was to happen to the residue of the estate. In the absence of any such
provision in the Will, Ms. Kunti Verman is to be deemed to have died
intestate with respect to the said residue and which intestate estate is to
devolve as per the law of succession applicable to her.
18. Before proceeding to consider, whether the plaintiffs can, under the
law of succession applicable to Ms. Kunti Verman, be said to be legal heirs
of Ms. Kunti Verman qua estate qua which she died intestate, it is also
deemed appropriate to consider the position of the half share in property
No.2A, Friends Colony (West), New Delhi which was bequeathed by Ms.
Kunti Verman under her Will dated 1st August, 1994 to Ms. Umi Khanna,
who also pre-deceased Ms. Kunti Verman.
19. The Will dated 1st August, 1994 does not also make any provision qua
the said half share in property No.2A, Friends Colony (West), New Delhi
bequeathed to Ms. Umi Khanna, in the event of Ms. Umi Khanna pre-
deceasing Ms. Kunti Verman. Section 105 supra of the Indian Succession
Act would thus apply to the said half share also and the same also would
become part of the residue estate of Ms. Kunti Verman which will be
governed by the law of succession applicable to her. As aforesaid, there is
CS(OS) No.1412/2007 Page 11 of 15
no residual bequest in the Will dated 1st August, 1994.
20. Section 15(1) of the Hindu Succession Act, 1956 (which appears to
be applicable to Ms. Kunti Verman) provides the General Rules of
succession in the case of female Hindus. The same provides that the
property of a female Hindu dying intestate shall devolve firstly upon the
sons and daughters (including the children of any predeceased son or
daughter) and the husband; secondly upon the heirs of the husband; thirdly
upon the mother and father; fourthly upon the heirs of the father and lastly
upon the heirs of the mother.
21. Section 16 of the Hindu Succession Act lays down the order of
succession and manner of distribution amongst the heirs of a female Hindu
and provides that the heirs in one entry shall be preferred to those in any
succeeding entry i.e. if the female leaves son/daughter/husband, the question
of her estate being inherited by the heirs of her husband would not arise.
22. Clause (a) of Section 15(2) of the Hindu Succession Act provides that
property inherited by female Hindu from her father or mother, in the
absence of any son/daughter/ their heirs, shall devolve upon the heirs of the
father; Clause (b) thereof provides that property inherited by female Hindu
from her husband or father-in-law, in the absence of son/daughter/their
CS(OS) No.1412/2007 Page 12 of 15
heirs, shall devolve upon the heirs of the husband.
23. There is no plea, neither in the plaint nor in the replication that any of
the properties, movable or immovable, mentioned in the Will dated 1 st
August, 1994 were inherited by Ms. Kunti Verman from her father or
mother. There is no such statement, neither in the recitals in the Will dated
1st August, 1994 nor in the recitals in the Codicil dated 7 th August, 2006. In
the absence of any pleadings to the said effect, Clause (a) of Section 15(2)
of the Hindu Succession Act cannot be said to be applicable. Thus, the
succession to the estate of Ms. Kunti Verman, in the event of her intestacy,
is to be governed by Section 15(1) of the Hindu Succession Act and as per
which provision, the estate is to devolve firstly upon the son and daughter
including the children of any pre-deceased son or daughter and the husband.
Ms. Kunti Verman admittedly did not have any son or daughter of her own
and her husband had pre-deceased her. Thus, the heirs mentioned in the
said entry are not applicable and we have to proceed to the second entry.
The second entry is of the heirs of the husband of Ms. Kunti Verman. Such
heirs are available in the form of the two daughters of the husband of Ms.
Kunti Verman from an earlier marriage. Thus, it has but to be held that
even if Ms. Kunti Verman were to be said to have died intestate qua the half
CS(OS) No.1412/2007 Page 13 of 15
share in property No.2A, Friends Colony (West), New Delhi, which was
bequeathed to Ms. Umi Khanna and qua the bequest to Ms. Parmeshwari
Som Dutt, paternal grandmother of the plaintiffs, because of both Ms. Umi
Khanna and Ms. Parmeshwari Som Dutt have pre-deceased Ms. Kunti
Verman, the plaintiffs would not be heirs of Ms. Kunti Verman to be
entitled to a share in the said estate qua which Ms. Kunti Verman died
intestate.
24. Once it is so, it falls that the plaintiffs cannot have a locus standi to
challenge the Codicil dated 7th April, 2006 because even if the Codicil is to
be declared invalid, the plaintiffs would still not be heirs of Ms. Kunti
Verman and not have any share in her estate or be entitled to claim partition
thereof and the present suit is misconceived.
25. Before parting with the case, I may notice that the defendants No.1&2
have along with their application under Order VII Rule 11 CPC filed a copy
of a registered Gift Deed dated 5th December, 1963, vide which the husband
of the said Ms. Kunti Verman had gifted the plot of land underneath
property No.2A, Friends Colony (West), New Delhi, which is the bone of
contention in this suit, to his wife Ms. Kunti Verman. For this reason,
though there are no pleadings, the possibility of Ms. Kunti Verman having
CS(OS) No.1412/2007 Page 14 of 15
inherited the said property from her father or mother, does not exist.
26. The plaint on the averments contained therein thus does not disclose a
cause of action. The suit is found to be misconceived and in ignorance of
the position in law and is thus dismissed with costs of Rs.20,000/-.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
APRIL 01, 2014 Bs..
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