Sh. Suraj Prakash Singh vs Smt. Kamlesh Prakash And Ors.
2011 Latest Caselaw 1147 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 25.02.2011

+           CS(OS) No. 1230/2009

SH. SURAJ PRAKASH SINGH                      .....Plaintiff

                           - versus -

SMT. KAMLESH PRAKASH AND ORS.                .....Defendant

Advocates who appeared in this case:
For the Plaintiff: Mr. A.K. Singhla, Sr.Adv. with Mr. Rama
                   Shankar
For the Defendant: Mr. Kishore M. Gajaria and Mr. Piyush
                   Sachdeva, for D-1 and 2
                   Mr. U. Bhagat, Adv. for D-5 and 6

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?                       No

2. To be referred to the Reporter or not?                No

3. Whether the judgment should be reported               No
   in Digest?

V.K. JAIN, J. (ORAL)

1. The learned counsel for the plaintiff gives up

defendants No.5 and 6, who are stated to be tenants in one

of the property, subject matter of the suit. Their names are

deleted from the array of parties. Amended memo of parties

be filed.

IA No. 5340/2010

2. This is an application under Order XII Rule 6 of the

Code of Civil Procedure. The admitted position is that late

Sh. Manmohan Prakash was the sole owner of properties

No.D-2/2586, Vasant Kunj, New Delhi and C-13, Green

Park Extension, New Delhi. Sh. Manmohan Prakash died

on 5th January 2006, leaving the plaintiff, who is his son,

defendant No.1, who is his widow, defendant No.2, who is

his other son and defendant No.3, who is his daughter, as

his Class 1 legal heirs. The case of the plaintiff is that late

Sh. Manmohan Prakash died intestate. A probate petition

being Probate Case No. 195/2001 was filed by late Sh.

Manmohan Prakash in his lifetime seeking probate of the

Will, which is father had executed in his favour. The

probate was granted in favour of late Sh. Manmohan

Prakash on 19th April 2004. According to the plaintiff,

defendant no.1 in this suit Smt. Kamlesh Prakash filed an

application in the above referred probate case admitting

therein that her husband had died intestate. The plaintiff

has accordingly sought a preliminary decree of partition in

view of the admission made by defendants 1 to 3.

3. The application has been opposed by defendants

No.1 and 2. In their reply, they have admitted that property

No.C-13, Green Park Extension, New Delhi was owned

exclusively by late Sh. Manmohan Prakash. They have

claimed that in the lifetime of late Sh. Manmohan Prakash

the plaintiff as well as defendants No.2 and 3 had executed

relinquishment deed with respect to property No.C-13,

Green Park Extension, New Delhi as also with respect to

property No.D-2/2586, Vasant Kunj, New Delhi. It is also

alleged that late Sh. Manmohan Prakash executed a Will in

his lifetime on 20th May 2005 whereby both the properties,

subject matter of this suit were bequeathed to defendant

No.1 Smt. Kamlesh Prakash.

4. As far as property No.C-13, Vasant Kunj, New

Delhi is concerned, admittedly that has already been sold by

defendant No.1 to defendant No.4. The plaintiff has sought

declaration to the effect that the sale deed executed in

favour of defendants No.1 to 4 is null and void. The relief of

declaration being a discretionary relief, even if plaintiff is

able to prove that he had one fourth share in the property,

subject matter of the sale deed, the Court may not grant

him the declaration sought by him and may instead direct

payment of one fourth of the sale consideration to him. The

Court may also grant him some other relief different from

the relief of the declaration sought by him with respect to

the aforesaid sale deed. Moreover, this is also the case of

defendants 1 and 2 that the plaintiff was given another

property in lieu of his share in Vasant Kunj property. In

these circumstances, the learned counsel for the plaintiff

does not press this application qua property No. D-2/2586,

Vasant Kunj, New Delhi.

5. It has been alleged in the written statement of

defendants 1 and 2 that property No.C-13, Green Park

Extension, New Delhi was inherited by late Shri Manmohan

Prakash from his father by virtue of a registered Will

executed in his favour. A probate in respect of the above-

referred Will has already been granted on a petition which

was filed by late Shri Manmohan Prakash. Since property

No.C-13, Green Park Extension, New Delhi admittedly

belonged to the grandfather of the plaintiff and was

bequeathed to his father, the plaintiff had no right, title or

interest in this property in the lifetime of his father.

Therefore, the Relinquishment Deed, if any, executed by him

in favour of his father, would be meaningless and would not

deprive him of a share in the aforesaid property, on the

death of his father. Assuming however that the plaintiff had

a share in property No.C-13, Green Park Extension, New

Delhi, which he relinquished in favour of his father in his

lifetime, that would not take away his legal right to a share

in that property on the death of his father, in his capacity as

one of his Class I legal heirs. Of course, this is on the

assumption that either late Shri Manmohan Prakash died

intestate or he did not execute a valid Will in respect of the

aforesaid property.

6. Coming to the property No.C-13, Green Park

Extension, New Delhi, I find that the Will setup by

defendant No.1 purports to be attested by only one witness.

Section 63 of Indian Succession Act, to the extent it is

relevant, provides that an unprivileged Will shall be

attested by two or more witnesses, each of whom has seen

the testator sign or affix his mark to the Will or has seen

some other person sign the Will, in the presence and by

the direction of the testator, or has received from the

testator a personal acknowledgment of his signature or

mark, or the signature of such other person; and each of

the witnesses shall sign the Will in the presence of the

testator, but it shall not be necessary that more than one

witness be present at the same time, and no particular

form of attestation shall be necessary.

7. In Lalitaben Jayantilal Popat vs. Pragnaben

Jamnadas Kataria (2008) 15 SCC 365 and Janki Narayan

Bhoir vs. Narayan Namdeo Kadam (2003) 2 SCC 91,

Supreme Court held that the requirement of attestation of a

Will by two or more witnesses is mandatory.

In Arun Kumar Sharma vs. Ashok Kumar

Sharma and Ors. 2007(95) DRJ 314, the Will was attested

by only one witness. No name was written at serial No. 2 in

the column of witnesses. The Will was executed on

23.05.1983 and attested by Notary Public on 27.05.1983.

The Trial Judge declined to grant the probate of the Will on

the ground that application attested by only one witness, it

did not fulfil the mandatory requirement of Section 63(C) of

Indian Succession Act, 1925. The decision of the Trial Court

was upheld by this Court. In the case before this Court, a

perusal of the photocopy of the Will shows that it purports

to be attested by only one witness and neither any name

has been written nor any signature appears at serial No.2 of

witnesses.

8. Admittedly late Sh. Manmohan Prakash was not a

soldier employed in an expedition or engaged in actual

warfare or an airman so employed or engaged, or a mariner

at sea. Therefore, the Will executed by him is an

unprivileged Will within the meaning of Section 63 of Indian

Succession Act and, therefore, it was required to be attested

by two or more witnesses. If a Will is attested by only one

witness, this is not a valid Will in the eyes of law and will

not confer any right, title or interest on legatee under the

Will. In these circumstances, it is difficult to dispute that in

view of the admission to the effect that property No.C-13,

Green Park Extension, New Delhi was owned by late Sh.

Manmohan Prakash, who died leaving behind the plaintiff

and defendants No.1 to 3 as his only Class 1 legal heirs, the

plaintiff has one fourth share in property No.C-13, Green

Park Extension, New Delhi. Accordingly a preliminary

decree for partition is passed declaring that the plaintiff and

defendants No.1 to 3 own one fourth share each in property

No.C-13, Green Park Extension, New Delhi.

The application stands disposed of.

IA No. 8584/2009

9. The learned counsel for the plaintiff as also the

learned counsel for defendants No.1 to 3 agree that they will

not create any third party interest in property No.C-13,

Green Park Extension, New Delhi, during pendency of the

suit.

10. As regards Vasant Kunj property, the admitted

position is that the sale deed was executed only by

defendant No.1 in favour of defendant No.4. The Will

purporting to have been executed by late Sh. Manmohan

Prakash in favour of defendant No.1 has been found to be

an invalid Will having not been attested by two or more

witnesses. Therefore, prima-facie it appears that defendant

No.1 had no right to sell the aforesaid property to defendant

No.4 without consent of other legal heirs of late Sh.

Manmohan Prakash. Admittedly, no such consent was

obtained from the plaintiff before selling the aforesaid

property. The case of defendant No.1 in respect of this

property is that the plaintiff had taken other properties of

the deceased in lieu of his share in Vasant Kunj property.

This, however, is disputed by the plaintiff. In these

circumstances, it will only be appropriate that defendant

No.4 is restrained from creating any third party interest in

property No. D-2/2586, Vasant Kunj, New Delhi.

Ordered accordingly.

CS(OS) 1230/2009

The parties are directed to appear before Delhi

High Court Mediation and Conciliation Centre at 3:00 PM

on 3rd March 2011 in order to make an effort for an

amicable resolution of all their disputes. Delhi High Court

Mediation and Conciliation Centre is requested to make the

services of a Senior Advocate available to the parties for

mediation.

List the matter before Court on 5th August 2011.

(V.K. JAIN) JUDGE FEBRUARY 25, 2011 Ag/BG