Kv Kohli Through Lrs. vs State And Others
2009 Latest Caselaw 3556 Del

                                    UNREPORTED
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             DATE OF RESERVE: AUGUST 11, 2009

                              DATE OF DECISION: SEPTEMBER 04, 2009

+             IA No.9664/2009 in TEST CAS.20/1997

      KV KOHLI THR LR'S                    ..... Petitioners
                    Through: Mr. H.L. Tikku, Sr. Advocate with
                             Ms. Mamta Mehra, Mr. Yashmeet and
                             Ms. Anupama, Advocates

                     versus

      STATE & ORS.                                  ..... Respondents
                              Through: Mr. Mahendra Rana, Advocate for R-1



CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1.    Whether reporters of local papers may be allowed
      to see the judgment?
2.    To be referred to the Reporter or not?
3.    Whether judgment should be reported in Digest?


:     REVA KHETRAPAL, J.

1. This is an application under Section 151 CPC read with Order VI Rule

17 CPC seeking amendment of the above-mentioned probate petition. The

application though was filed on 15th April, 1988 was ordered to be registered

and numbered on November 20, 2008. Reply to the application, however,

appears to have been filed sometime in May, 1988.

2. Probate proceedings were instituted by the petitioner Mr. K.V. Kohli

(now represented through his legal heirs) for grant of letters of administration

with will annexed based upon the last will executed in the hand of the mother

of the petitioner, namely, Dr. (Mrs.) Raseel Kohli. The said will is stated to be

executed in the hand of Dr. (Mrs.) Raseel Kohli, wife of late Shri D.V. Kohli

on the evening of 7th March, 1986, bequeathing her entire estate to the

petitioner. By way of the present application, the deceased petitioner claimed

that after persistent investigations on the part of the petitioner it had been

found that his mother Dr. (Mrs.) R. Kohli, in respect of whose estate the

present proceedings had been initiated, had also executed her will on the

morning of 07.03.1986 and the same was got registered in the office of the

Sub-Registrar, New Delhi and the same was duly attested/witnessed by an

Advocate. The papers of the said registered will, it is stated, came to the

knowledge of the petitioner only in the middle of March, 1988. Therefore, the

petitioner wants to incorporate the fact of the registered will in his favour

whereby the entire properties left by late Dr. (Mrs.) R. Kohli were bequeathed

to the petitioner and the sister of the petitioner, namely, Ms. Pamela

Manmohan Singh was debarred from inheritance of the said properties.

3. It is prayed that the following paragraph may be permitted to be added

in paragraph 2 of the existing application:

"That the petitioner after persistent search has been able to get hold of the registered will duly executed before the Sub

Registrar, New Delhi on 7.3.1986 and the same was written in the morning whereas the aforesaid hand-written will was executed by the deceased Dr. (Mrs.) R. Kohli in the evening on 7.3.1986 and the effect and the contents of both the wills do make it clear that only the applicant/petitioner has been bequeathed the entire estate to the exclusion of all others."

4. The respondent, Mrs. Pamela Manmohan Singh, in her reply, has

opposed the amendment of the probate petition on the ground that the said

probate petition is liable to be dismissed for the reason that the alleged last will

filed by the petitioner is not signed by Dr. (Mrs.) R. Kohli and the alleged

signatures are forged. Even otherwise, it is stated that the alleged will on

which the petitioner has based his claim stands revoked in view of the later

will of Dr. (Mrs.) R. Kohli dated 23rd September, 1987 executed by her at New

Delhi in the presence of witnesses for which a separate petition (bearing

probate case No.19/1988) is filed by the respondent No.2. It is categorically

denied that Dr. (Mrs.) R. Kohli executed the will on the morning of 7 th March,

1986 or the same was registered in the office of the Sub-Registrar, New Delhi.

It is submitted that the alleged will is also a forged and fabricated document.

Both the petitioner and the respondent Mrs. Pamela Manmohan Singh are joint

beneficiaries of the estate of the deceased. At any rate, it is contended that as

per the petitioner's own showing, the alleged registered will would stand

superseded by the unregistered holographic will of 7th March, 1986 alleged to

be executed in the evening of 7th March, 1986. It is also submitted that even

otherwise, the application for grant of letters of administration with the alleged

will annexed is liable to be dismissed as the alleged attesting witnesses have

not signed on the petition and the original will which is the basis of the petition

has not been filed in the Court. The proposed amendment cannot, therefore, be

permitted in law.

5. I have heard Mr. H.L. Tikku, the learned senior counsel for the

petitioner/applicant and Mr. Mahendra Rana, the learned counsel for the

respondent. The principal contention of the learned counsel for the respondent

is that the amendment sought for by the petitioner is forbidden by the mandate

of Section 276 of the Indian Succession Act, 1925 read with Section 62 of the

said Act, which read as under:

"276. Petition for probate.-(1) Application for probate or for letters of administration, with the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating-

                  (a)     the time of the testator's death,
                  (b)     that the writing annexed is his last will and
                          testament,
                  (c)     that it was duly executed,
                  (d)     the amount of assets which are likely to come
                          to the petitioner's hands, and
                  (e)     when the application is for probate, that the
                          petitioner is the executor named in the will.
           (2)     In addition to these particulars, the petition shall
           further state,-
                  (a)     when the application is to the District Judge,



                         that the deceased at the time of his death had
                        a fixed place of abode, or had some property,
                        situate within the jurisdiction of the Judge;
                        and
                (b)     when the application is to a District Delegate,
                        that the deceased at the time of his death had
                        a fixed place of abode within the jurisdiction
                        of such Delegate.
          (3)    Where the application is to the District Judge and

any portion of the assets likely to come to the petitioner's hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.

62. Will may be revoked or altered.- A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will."

6. The learned counsel contends that in view of the fact that a will is liable

to be revoked or altered by the maker of it at any time and that in the instant

case there is an evening will of the same date, i.e., 7th March, 1986 and by

virtue of the provisions of law the later will must prevail, the amendment

proposed is meaningless. On the one side, the petitioners have propounded the

alleged evening will dated 7th March, 1986 and on the other side are seeking to

set up the alleged morning will dated 7th March, 1986. In accordance with the

provisions of law, the morning will dated 7th March, 1986 is not and cannot be

the subject matter of the probate petition of which the alleged evening will

dated 7th March, 1986 is the subject matter. In accordance with the provisions

of law, when two wills are averred, the later one will prevail. Even otherwise,

the alleged morning will dated 7th March, 1986 has not been filed till date.

7. The learned counsel for the respondent further submits that though by

an order of this Court dated 21st July, 2005 it had been directed that will dated

23rd September, 1987 and the two wills dated 7th March, 1986 (morning and

evening) be sent for comparison of the signatures of Dr. (Mrs.) Raseel Kohli to

the CFSL, CGO Complex, New Delhi, the object of sending all the three wills

was only for the purposes of comparison of the signatures on all the three wills

with the admitted signatures of the testatrix on certain other documents.

However, by a subsequent order dated 16.11.2007, this Court had recorded the

fact that the morning will was not available on the record and accordingly the

CFSL shall examine the signatures on the remaining two wills, i.e., the will

dated 23rd September, 1987 and the handwritten will dated 7th March, 1986 (the

evening will). It was only after the receipt of a report dated 1st November,

2007 from the CFSL to the effect that the signatures on the evening will of 7 th

March, 1986 propounded by the petitioner could not be connected with the

admitted signatures of Dr. (Mrs.) R. Kohli on other documents that on

November 20, 2008 the learned counsel for the petitioner sought to press his

application for amendment filed on 15th April, 1988, which was thereupon

ordered to be numbered, and was numbered as IA No.9664/2009.

8. There can be no manner of doubt that the law is that it is the last will

and testament of a testator/testatrix which shall prevail over any earlier will.

The caveat is that the subsequent will must be a validly executed will. Thus,

the subsequent will would revoke the earlier will only if the subsequent will

was adjudged to be a genuine one. To put it differently, the previous will

would not be enforceable if a subsequent will and testament is propounded

which is found by the Court to be genuine. If, however, for any reason the

subsequent will is discarded either as a will which has not been validly

executed or as a will which is found to be forged, the grant of probate of an

earlier will cannot be ruled out. In the instant case, the earlier will is stated to

be a registered will, and the present application has been filed not long after the

institution of the petition seeking letters of administration in respect of will

dated 07.03.1986, inasmuch as petition for probate was filed in

November/December, 1987 and the present application for amendment was

filed on 15th April, 1988. Both the wills are stated to have been executed on

the same day, i.e., 7th March, 1986, one in the morning and the other in the

evening. The effect and purport of both the wills is stated to be the same, i.e.,

bequest of the entire estate to the petitioner to the exclusion of all others. The

morning will is registered with the Sub-Registrar. The evening will is a

holographic will. Neither will is admitted by the respondent. Thus, if for any

reason, this Court comes to the conclusion that the evening will was not

executed in accordance with law, the question will arise as to whether the

petitioner is estopped from contending that in such circumstances letters of

administration be granted in respect of the morning will. This, in my view, is a

question which goes to the root of the matter and is material in deciding the

controversy between the parties. I, therefore, see no reason to reject the prayer

of the petitioner for amendment of the petition.

9. Reliance placed by the learned counsel for the respondent on the

judgment of this Court in Rajan Suri (Shri) & Anr. vs. The State & Anr.

reported in 2005 VIII AD (Delhi) 878 is misconceived as in the said case the

undisputed position was that the later will had never been disputed. Not only it

had not been disputed, it had been specifically admitted by all the concerned

parties including the petitioner as a valid will. It was also not in dispute in the

said case that the said will of 1978 clearly revoked the earlier will of 1974. In

the circumstances, it was held by a learned Single Judge of this Court that the

petition for the grant of probate of an earlier will could not be entertained, as

such a course of action would be clearly contrary to the provisions of Section

276 read with Section 62 of the Act. The said facts are clearly inapplicable to

the instant case, which is on an entirely different footing.

10. In view of the aforesaid, in my view, the amendment prayed for must be

allowed. It is accordingly allowed. Let amended petition be filed within two

weeks with an advance copy to the counsel for the respondent, who may file

his written statement thereto within four weeks thereafter. The matter shall be

placed before the Joint Registrar for completion of pleadings and

admission/denial of documents on 06.10.2009. Any observations made in this

order shall not be construed as an expression of opinion on the merits of the

case and the onus of proof for the grant of letters of administration shall lie

entirely upon the petitioner.

The application stands disposed of in the above terms.

REVA KHETRAPAL, J.

SEPTEMBER 04, 2009 km