Satyawati Bhalla And Anr. vs Aruna Prabha Khanna And Anr.
1995 Latest Caselaw 954 Del

JUDGMENT

N.G. Nandi, J.

(1) In the suit challenging the Will dated 6th May, 1982 by Ms. Bimla Devi on the ground of coercion, undue influence and fraud and on that basis, the relief of declaration that the Will dated 6th May, 1982 is void, inoperative and not binding on the plaintiffs and for a further declaration that the plaintiffs are the owners of the entire assets, movable and immovable, of the deceased Ms. Bimla Devi and consequential relief of injunction, seeking to restrain the defendants from acting on the basis of the Will dated 6th May, 1982, besides other prayers, the plaintiffs, by this application seek to restrain the defendants in identical terms and also from Realizing the rents or income from the American Embassy, alienating, encumbering and or otherwise dealing with the movable and immovable properties of deceased Ms. Bimla Devi situated at 3/23, Shanti Niketan, New Delhi and also the moveable properties including the FDRs, bank accounts pending the hearing and disposal of the suit.

(2) The say of the plaintiffs is that plaintiff No. I, Smt. Shanti Devi and Ms. Bimla Devi are the daughters and plaintiff No. 2 is the son of one Shri Baisakhi Ram; that Ms. Bimla Devi was in Government service in Delhi as an assistant; that the marriage of Smt. Shanti Devi with her husband Shri G. Singh was dissolved due to incompatibility; that thereafter Smt. Shanti Devi and Ms. Bimla Devi came to Delhi and resided with plaintiff No. 2 at Delhi; that defendant No. 1 is the daughter of plaintiff No. I whereas defendant No. 2 is the husband of defendant No. 1; that in or around 'the year 1965, Ms. Bimla Devi and Smt. Shanti Devi jointly purchased leasehold rights in property admeasuring approximately 625 square yards bearing Municipal No. 3/23, Shanti Niketan, New Delhi (suit plot) and with the financial assistance by the plaintiffs to the tune of Rs. 25,000.00, Smt. Shanti Devi constructed a double storey house on the said plot in 1974; that Smt. Shanti Devi died on 26th April, 1982 and on her death plaintiff No. 1, plaintiff No. 2 and Ms. Bimla Devi became entitled to succeed to the estate of Smt. Shanti Devi in equal shares. That defendants I and 2 because of the death of Smt. Shanti Devi resided with Ms. Bimla Devi to condole the death of Smt. Shanti Devi; that during this time taking the advantage of emotional and psychological grief and stress of Ms. Bimla Devi the defendants schemed to coerce and unduly influence Ms. Bimla Devi to execute the Will bequeathing the property to defendant No. I under a threat to reveal to the Income-Tax Authorities, some alleged concealment of income by her and consequent prosecution. That she was also told that out of the funds by sale of Delhi property two flats would be purchased at Bombay, one to be purchased in her name whereas the other flat would be purchased in the name of defendant No. I and that she should stay at Bombay and Ms. Bimla Dev was influenced to part with substantial sum of Rs. 5,00,000.00 to purchase two flats at Bombay and a? a result of coercion and unduly influence exercised by defendants I and 2 Ms. Bimla Devi executed the Will dated 6th May, 1982 in favor of defendant No. I and that the name of defendant No. I was included in the FDRs, bank lockers and bank account in the revised lease-deed etc.

(3) It is not in dispute that in the year 1965 plot No. 3/23, Shanti Niketan, New Delhi was jointly purchased by Smt. Shanti Devi and Ms. Bimla Devi and the double storey house was constructed thereon in the year ' 974, according to the plaintiffs with the financial assistance to the tune of Rs. 25,000.00 - by plaintiffs I and 2. That Smt. Shanti Devi died on 18th April, 1982. Ms. Bimla Devi retired from Government service in 1983. That Smt. Shanti Devi and Ms. Bimla Devi were staying together after the divorce of Smt. Shanti Devi from her husband.

(4) MARK-A is the copy of the Will purported w have been executed by Smt. Shanti Devi on 23rd October. 1976. By the said Will Smt. Shanti Devi is said to have bequeathed all her movable and immovable properties including her share in House No. 3/25, Shanti Niketan, New Delhi to Ms. Bimla Devi daughter of Mr Baisakhi Ram. Annexure-F suggests the mutation of the plot in the name of Ms. Bimla Devi as the nominee or Smt. Shanti Devi, the co-sub-lessee of plot No. 3/23, Shanti Niketan, New Delhi.

(5) The copy of the Will under challenge purported to have been executed on 6th May, 1982 by deceased Ms. Bimla Devi who died on 9th November, 1991, is produced by the defendants at Annexure-A in defendantslist. Perusal of the same suggests that Smt. Shanti Devi who expired on 18.4.1982 executed a Will dated 23.10.1976 bequeathing all her movable and immovable properties including her half share in plot of land bearing No. 3/23, Shanti Niketan, New Delhi. Thus there is a reference of the Will Mark-A dated 23.10.1976 by Smt. Shanti Devi in favor of Ms. Bimla Devi in copy of the Will dated 6th May, 1982 at page:2 referred to above. It is pertinent to note that it is not the say of the plaintiffs that Will dated 6th May, 1982 is fictitious, forged or fabricated. The Will is challenged as observed above on the ground of undue influence, coercion and fraud. 7 he execution of the Will dated 6th May, 1982 by Ms. Bimla Devi is not disputed.

(6) In paragraph 9 it is stated that defendants I and 2 threatened Ms. Bimla Devi to reveal to the Income-Tax Authorities certain concealment of Income by Ms. Bimla Devi and that may result in prosecution; and that it was necessary for her to shift to Bombay. It may be appreciated that Ms. Bimla Devi was admittedly a Government servant. It is neither averred in the plaint nor suggested prima fade that deceased Ms. Bimla Devi had any other income which she could have concealed and it prima fade does not appear that Ms. Bimla Devi would submit to the threats of prosecution as she could have well taken legal advice being in Government service for number of years as she retired in 1983 on plaintiff's own say.

(7) It is averred in the plaint that at the time of execution of the Will dated 6th May, 1982 Ms. Bimla Devi was old lady of 57 years, i am prima fade not inclined to accept that at the age of 57 years a lady in Government employment could be coerced or induced to execute a Will in favor of some body and it could be prima fade expected that a person would not act emotionally or irrationally or under pressure. Simply because the Will dated 6th May, 1982 is executed within 10 days of the arrival of defendants I and 2 to condole the death of Smt. Shanti Devi that by itself cannot be a reason prima facie to suggest the execution of the Will by Ms. Bimla Devi on 6th May, 1982 as alleged by the plaintiffs.

(8) It is pertinent to note that as per paragraph 14 of the plaint Ms. Bimla Devi retired from Government service in 1983 and that thereafter she realised that defendants I and 2 had committed breach of faith and trust and that she narrated the breach of trust by defendants I and 2 to Mr. 0.P. Saxena who was in Central Bank of India in Delhi and that she told Mr. O.P. Saxena that she was coerced and threatened by defendants No. 1 and 2 to execute the Will dated 6th May, 1982. It is averred in paragraph 22 that even in the year 1988 defendant No. I resorted to fraudulent false promises to blackmail Ms. Bimla Devi by threatening her and in the year 1988 also Ms. Bimla Devi was persuaded by the exercise of coercion and fraudulent assurances, to help defendants Nos. 1 and 2 and get restored the allotment with regard to the allotment of Dda flat to defendant No. 2 with the help of Mr. O.P. Saxena, a trusted friend of Ms. Bimla Devi It may be appreciated that if Ms. Bimla Devi realised herself to have been deceived by defendants I and 2 and had also told her friend Mr. O.P. Saxena about she having been induced, coerced to execute the Will dated 6th May, 1982 and that she wished to delete the name of defendant No. I from her Fdr and the authority of defendant No. 1 to operate her bank account and locker, yet Ms. Bimla Devi did not cancel the Will or revoke the authority to operate bank account and the locker. It is difficult to prima fade conceive that Ms. Bimla Devi, if she had self-realization with regard to the motives of defendants No. I and 2 and that she was coerced to execute the Will dated 6th May, 1982, and when she had the advice of her friend Mr O.P. Saxena available, why she did not cancel the Will dated 6th May, 1982 in favor of defendant No. I when she had all the opportunities and the time in the world till 9th November, 1991 by which time she had enough experience of defendants No. 1 and 2 as averred in the plaint. Without expressing any opinion with regard to the merits of the contentions in the plaint, what has been averred in the plaint, for the purpose of considering prima fade case of the plaintiffs, does not prima facie sound probable looking to the conduct of Ms. Bimla Devi as averred in the plaint right from 6th May, 1982 till 9th November, 1991.

(9) Defendant No. 3 in the written statement paragraph 7 has averred that Smt. Shanti Devi expired onl 1th April, 1982 after executing the Will dated 23rd October, 1976 and her nomination in the records of Government Servants Co-op. House Building Society in favor of Ms. Bimla Devi and as such her half share in the said plot was mutated in favor of Ms, Bimla Devi as per defendant No. 3's letter dated 26th August, 1983 thus making.Ms. Bimla Devi, the sole sub-lessee of plot No. 3/ 23, Shanti Niketan, New Delhi.

(10) The copy of the Will dated 6th May, 1982 referred to above suggests that the Will dated 6th May, 1982 is a registered Will having a reference to Will dated 23rd October, 1976 by Smt. Shanti Devi in favor of Ms. Bimla Devi, would prima fade go to show that Smt. Shanti Devi did not die intestate as alleged in the plaint and plaintiffs No. 1 and 2. arid Ms. Bimla Devi would become entitled to equal share in the property i.e. one half snare in the property No. 3/23. Shanti Niketan, New Delhi.

(11) Considering prima facie the averments of the plaint in light of the conduct of Ms. Bimla Devi, as stated above, for the present limited purpose, the plaintiffs cannot be said to have suggested prima facie case and in absence of plaintiffs prima facie substantiating the Will dated 6th May, 1982 having been obtained by defendants No. 1 and 2 by coercion, undue influence and fraud the plaintiffs would not be entitled to the relief of injunction. In the result, this application being devoid of merits fail...