Ashok Bajaj vs Government Of Nct Of Elhi & Ors
2017 Latest Caselaw 2277 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment reserved on :01.05.2017
                                   Judgment delivered on : 08.05.2017
+      TEST.CAS. 60/2014

       ASHOK BAJAJ                                   ..... Petitioner

                          Through        Mr.Darpan Wadhwa, Senior Advocate
                                         with Mr. Albert Sebastian, Ms.Sonali
                                         Chopra and Mr. Arnav Kumar,
                                         Advocates.

                          versus

       GOVERNMENT OF NCT OF ELHI & ORS..... Respondents

                          Through        Mr.Nikhil Rohtagi, Mr. Shashank
                                         Khurana       and        Mr.Mohit
                                         Khubchandani, Advocates for R-2 to
                                         R-4.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

I.A.No.19641/2014 (u/O VII Rule 11 CPC)

1 Petitioner seeks probate of the Will dated 10.10.1976 of deceased

Jagdish Lal Bajaj. The petitioner is the son of the deceased. The second son

of the deceased was Rajiv Bajaj. He has since died. The respondents (No.2 to

4) are the legal representatives of Rajiv Bajaj i.e. his wife and two children.

Objections have been filed by them. In the course of these proceedings an

application under Order 7 Rule 11 CPC had also been filed by them.

2 Arguments have been addressed on the aforesaid application. On

behalf of the applicant, it is pointed out that this petition is liable to be

rejected for two reasons. The first is the ground of limitation and the second

is because of the contrary pleas which have been taken by the petitioner. On

the ground of limitation, it is pointed out that as per averments made in the

petition, the deceased had left a Will dated 10.10.1976 which was followed

by a Codicil dated 14.10.1976. Even as per the own showing of the

petitioner, the petitioner learnt about this Codicil from his mother in the year

1994. In the year 1994 itself, the petitioner had signed a registered

Declaration Deed wherein he had given up all claims qua the share of his

father in property bearing No. 1, Golf Links, New Delhi (subject matter of

the Will dated 10.10.1976 and the Codicil dated 14.10.1976). Submission is

that the limitation to file the present petition commenced in the year 1994.

Without prejudice to this contention, the additional submission of the

petitioner is that the petitioner in his petition has further stated the he became

suspicious about this Will (dated 10.10.1976) in the year 2006 when his

mother expired and he learnt about her Will (dated 05.05.2016) wherein one

third share in the suit property (owned by his mother) fell to the share of the

petitioner. Submission of the applicant being that even if this submission is

taken as correct limitation would even then expire on or before 05.10.2009.

Present petition which has been filed in the year 2014 by no stretch of

imagination can be said to be within the period of limitation. All RTI

queries/responses would not extend statute of limitation; at best it can be a

ground to condone laches but the statutory bar cannot be overcome. Counsel

for the applicant has placed reliance upon a Judgment of the Apex Court

reported as (2009) 11 Supreme Court Cases 537 Krishan Kumar Sharma vs.

Rajesh Kumar Sharma to substantiate his submission that the statute of

limitation is applicable to a probate petition; even presuming that the strict

application of a period of three years is not to be applied. Reliance has also

been placed upon the judgment of the Apex Court reported as 2010 VII AD

(DELHI) 442 Basant Dayal Vs. State & Others to support the submission

that the petition is time barred. Reliance has been placed upon a third

judgment of the Division Bench of this Court reported as RFA 575/2014

2013 SCC Online Del 3582 Om Prakash Vs. Shanti Swaroop; for the same

proposition; this petition is time barred.

3 The second submission of counsel for the applicant is that contrary

pleas have been taken by the petitioner (as is evident from pleadings in the

present petition); the petition is liable to be rejected on this ground also.

Submission being that the petitioner in the present petition [para 5(q)] has

stated that the signatures of the deceased on the Codicil dated 14.10.1976

were forged and fabricated. This contention of the petitioner in the petition is

distinct from the stand taken by the petitioner in the deed of declaration

dated 25.08.1994 (document filed and signed by the petitioner) wherein on

page 113 he has stated that the Codicil had been executed by the deceased

under duress and misrepresentation. Submission being that the stand of the

petitioner is conflicting, whereas in the petition he had stated that the

signatures of the deceased on the Codicil were forged yet in the registered

declaration deed he had set up the case that the signatures of the deceased on

the Codicil had been obtained under pressure and misrepresentation.

Submission being that the question of forgery is distinct from the stand of

misrepresentation. These two contrary pleas also make out a case of the

rejection of plaint. For this submission, counsel for the applicant has placed

reliance upon a judgment of the Bench of this Court reported as (2014) 5

High Court Cases (Del) 377 2014 SCC Online Del 2962 Pankaj Bajaj Vs.

Meenakshi Sharma and Ors; submission being that where there is a patent

contradiction as is so in this case a clear case of rejecting the plaint under

Order 7 Rule 11 CPC is made out.

4 Arguments have been refuted by the petitioner. Learned senior

counsel for the petitioner points out that the question of limitation is a mixed

question of law and fact and especially so in view of the avermetns made in

the present plaint. Submission is that for the rejection of a plaint under

Order VII Rule 11 of the Code the settled legal proposition is that the

averments in the plaint alone have to be looked into. There has to be a

meaningful reading of the plaint. A meaningful reading of the plaint clearly

show that all the times the petitioner has disputed the codicil dated

14.10.1976; this codicil has not seen the light of the day till today. On this

submission of the learned counsel for the petitioner a query had been put to

the learned counsel for the respondent who under instructions from his client

states that the codicil is not in his possession. It appears that the codicil is

nowhere in the picture.

5 Learned senior counsel for the petitioner to support his submission

that the question of limitation is a mixed question of law and fact has placed

reliance upon a judgment of the Apex Court reported as (2007) SCC 183

C.Natrajan Vs. Ashim Bai and Another as also another judgment of the Apex

Court reported as (2006) 5 SCC 658 Balasaria Construction (P) Ltd. Vs.

Hanuman Seva Trust and Others. Reliance has also been placed upon 2015

SCC Online SC 751 Vaish Aggarwal Panchayat Vs. Inder Kumar as also

(2014) 16 SCC 125 Surjit Kaur Gill and Anr. Vs. Adarsh Kaur Gill and Anr.

Submission is that the period of three years envisaged in Article 58 would

accrue from the date when the right to sue first accrues. In the instant case

Article 137 of Schedule 1 of the Limitation Act would be applicable and in

this case also the right to sue accrues from the date when knowledge could

be imputed to the petitioner; the petition on this parameter is clearly within

limitation. For the same proposition reliance has also been placed upon 167

(2010) DLT 702 Anil Singh and Anr. Vs. M.L.Ahuja and Ors. The

application under Order VII Rule 11 of the Code is liable to be dismissed.

Qua the second submission of the petitioner that there are variant pleas

adopted by the petitioner, it is pointed out that this submission is also

without merit; the declaration deed purported to have been executed by the

petitioner in the year 1994 was revoked by a registered cancellation deed

dated 04.6.2013; this latter document cannot be ignored. This was on the

premise that the signatures of the petitioner on the declaration deed had been

obtained under misrepresentation. The allegation that the signatures of the

deceased on the codicil are forged and the earlier plea in his declaration deed

that the signatures of the deceased on the codicil had been obtained under

misrepresentation can in no manner be treated as contrary in view of the fact

that a registered cancellation deed has been executed by the petitioner

cancelling the declaration deed of the year 1994. The arguments of the

respondent are futile. The application is liable to be rejected in toto.

6      Arguments have been heard. Record has been perused.

7      There is no doubt to the settled legal proposition that for dealing with

an application under Order VII Rule 11 of the Code it is only the averments

which are made in the plaint which have to be read. The defence set up by

the defendant cannot be looked into. The Apex Court has time and again

emphasized that what has to be extracted from the plaint is a meaningful

reading of the pleading and not a formal reading. It is only where the

meaningful reading of the plaint discloses that the plaint is barred by

limitation or for any other reason the plaint is liable to be rejected that the

suit can be nipped in the bud. An elaborate inquiry into complicated

questions of fact or law may not be gone into at that stage. The jurisdiction

of the Court is limited to ascertaining whether on the allegations made in the

plaint a case for rejection or dismissal of the plaint arises under Order VII

Rule 11 of the Code or not.

8 Applying the aforesaid test to the facts of the instant case, this Court is

not inclined to answer this prayer in favour of the applicant/respondent.

9 This is a testamentory case wherein the petitioner before this Court is

the son of late Jagdish Lal Bajaj. He is seeking a probate of the Will dated

10.10.1976 of his deceased father. The respondents before this Court are the

legal representatives of the brother of the petitioner namely the legal

representatives of deceased Rajiv Bajaj.

10 The testator Jagdish Lal Bajaj had died on 27.11.1976. At the time of

his death he had he had three legal heirs i.e. two sons namely Ashok Bajaj

and Rajiv Bajaj and his widow. The Will dated 10.10.1976 is a document

which is accepted by all the parties. In terms of this will the only

immovable property (subject matter of the present petition) bearing No.1,

Golf Links, New Delhi was to devolve as a life estate completely upon his

widow and upon her demise it was to fall in two equal shares to the two

brothers i.e. Ashok Bajaj and Rajiv Bajaj. The contents of the petition aver

that the Will dated 10.10.1976 was the last will and testament of deceased

Jagdish Lal Bajaj.

11 The history of this property dates back to a sale deed dated 24.5.1974.

The father of the petitioner Jagdish Lal Bajaj along with his nephew Ravi

Bajaj had purchased this property jointly for a total consideration of

Rs.1,80,000/-; 50% of the share in this property was owned by Jagdish Lal

Bajaj. The present petition is concerned with this 50% share. Further

averments in the petition disclose that both Jagdish Lal Bajaj and Ravi Bajaj

constructed their equal portions and a completiton certificate was obtained

by them. Both of them took respective possession of their dwelling units.

Mr.Jagdish Lal Bajaj died leaving behind his widow and his two sons. At

the cost of repetition, this Will had granted a life estate to Smt.Sudarshan

Bajaj (widow of the deceased); after her death the property was to devolve

upon the two sons of Jagdish Lal Bajaj namely Ashok Bajaj and Rajiv Bajaj

in equal shares. In 1993, the mother of the petitioner, the petitioner and

Rajiv Bajaj entered into an inter se memorandum of agreement with their

uncle dated 17.12.1993. This was to avoid any complication in the property.

Even in this memorandum of agreement it was clearly stated that after the

death of Jagdish Lal Bajaj his wife and two sons were his only legal heirs

under the Hindu Succession Act. The said memorandum of agreement was

signed by the parties.

12 In the beginning of 1994, the petitioner was informed by his mother

and his brother that late Jagdish Lal Bajaj had left behind a Will dated

10.10.1976 as also a codicil dated 14.10.1976. This codicil which had

apparently been made four days after the execution of the Will of Jagdish Lal

Bajaj purportedly revoked the bequeth earlier made in the Will and by the

said codicil 2/3rd share in the suit property was bequeathed in favour of Rajiv

Bajaj and the remaining 1/3rd in favour of Sudarshan Bajaj as her life

interest. Thereafter the same was to devolve exclusively upon Rajiv Bajaj;

meaning thereby that the petitioner in terms of this codicil was completely

ousted from the estate of his father. The petitioner was surprised as no Will

or Codicil had ever been mentioned before; he asked his mother and brother

to show him the Will and the Codicil but he was given an evasive reply.

13 The petitioner had blind faith in his mother. He executed a declaration

dated 25.8.1994 acknowledging the existence of both the Will and the

Codicil. This document had been prepared by Rajiv Bajaj and the petitioner

had only put his signatures.

14 The mother of the petitioner died on 23.7.2006. She left behind a Will

dated 05.5.2006. In this Will she had made no mention of the Will of their

father dated 10.10.1976 or of the codicil dated 14.10.1976. In this Will

(dated 05.5.2006) the mother stated that she was the owner of 1/3rd share in

the suit property. In terms of her Will since Rajiv Bajaj ahd his family had

been misbehaving with her she had bequeathed her 1/3rd share to the

petitioner Ashok Bajaj. Copy of the said Will is on record.

15 On coming to know about this Will dated 05.5.2006 the petitioner

questioned his brother about the Will dated 10.10.1976 and the codicil dated

14.10.1976 but he was again given an evasive reply.

16 Rajiv Bajaj passed away on 30.6.2009. Their uncle Ravi Bajaj called

upon the petitioner and respondent nos.2 to 4 to get the status of the property

converted from a leasehold to a freehold in terms of the memorandum of

agreement dated 17.12.1993. The petitioner was enquired about his status.

This was in view of the Will dated 10.10.1996 and the codicil set up by his

brother Rajiv Bajaj which he had not seen till date. The petitioner filed an

application dated 07.3.2011 under the Right to Information Act with the

Central Public Information Officer to know the status of this property; he

was not given any information. His application was declined on 10.6.2011.

He filed an appeal before the Appellate Body on 05.7.2011 requesting them

for a certified copy of the Will and the codicil of their father. His appeal was

allowed and for the first time in July, 2011 the petitioner saw the certified

copy of the Will dated 10.10.1976 and a copy of the alleged codicil dated

14.10.1976. The petitioner was shocked to see that the codicil was made

four days after the last will and there was no mention whatsoever for

revoking the bequeath made in the earlier Will dated 10.10.1976. It also did

not bear the correct signatures of his father Jagdish Lal Bajaj. The

signatures on the codicil were different from the signatures on the Will. The

first page of the codicil did not bear any signatures at all. This codicil had

been witnessed by his brother Rajiv Bajaj and his mother Sudarshan Bajaj,

both of whom were beneficiaries. The codicil apart from being forged and

fabricated also did not bear the true signatures of Jagdish Lal Bajaj. The

bequest under the codicil was void and invalid as the attesting witnesses to

the codicil were beneficiaries. The petitioner also sought information from

the Land and Development Officer, as to whether such a Will and the codicil

could be treated as valid in view of the information obtained by the petitioner

under the RTI Act. The Land and Deveopment Office vide their letter dated

12.03.2013 informed him that the codicil dated 14.10.1976 could not stand

the test of the judicial scrutiny. This letter dated 12.3.2013 has been placed

on record.

17 The petitioner further goes on to aver that these documents are liable

to be cancelled as the respondent has frabiracted this codicil. It is not

genuine. The petitioner learnt about this forgery in the codicil only when his

appeal was allowed under the RTI Act which was in July, 2011. The

present petition has been filed in July, 2014; as per him it is within time.

18 These averments as disclosed herein clearly show that the deceased

Jagdish Lal Bajaj had left a will dated 10.10.1976. None of the parties

before this Court have challenged the fact that a Will had in fact been

executed by Jagdish Lal Bajaj. Thereafter a codicil had been set up by Rajiv

Bajaj which is dated 14.10.1976 i.e., four days after the execution of the Will

dated 10.10.1976. The reason for a complete change of mind by the testator

four days later was not even whispered upon in the codicil. The petitioner

had executed a declaration deed on 25.08.1994 which as per his averments in

the petition was on the asking of his mother in whom he had blind faith and

upon her asking he had signed this declaration deed acknowledging the

codicil dated 14.10.1976. In 2006 his mother died. His mother had left a

Will dated 05.5.2006. It is not the case of any party that this will has not

been executed by their mother. This will had bequeathed 1/3rd share of the

mother (in the suit property) in favour of Ashok Bajaj for the reason that the

deceased (mother) was not looked after properly by her son Rajiv Bajaj. She

had accordingly bequeathed her 1/3rd share in the suit property to the

petitioner. The petitioner as is further clear from the petition had questioned

his brother about the codicil purported to have been executed by their father

but he was given no answer. The codicil even today is untraceable; it is not

with the respondent who had set it up. Rajiv Bajaj has also died. The

repeated queries by the petitioner to his brother on the codicil remained

unanswered. The status of the petitioner was till unclear. He was

constrained to file a petition before the Land and Development Office as the

uncle of the petitioner (Ravi Bajaj) had called upon the parties to get the

status of the property converted from a leasehold to a freehold which could

only be done jointly as Jagdish Bajaj and Ravi Bajaj were 50% owners in the

suit property. The petitioner filed an application before the Central Public

Iniformation Officer on 10.6.2011. His application seeking information on

the Will dated 10.10.1976 and the codicil dated 14.10.1976 was refuted. His

appeal was allowed in July, 2011 and for the first time he saw a copy of the

said codicil. This codicil being a two page document had the signatures of

the testator only on the second page; the first page contained the bequeath;

the witnesses to this codicil were also his mother and his brother.

19 There is no doubt to the proposition that the beneficiaries of a will can

be attesting witneses but at the same time where the document itself raises a

suspicion (as is so in this case) as admittedly the first page of the codicil

which contained the bequeath was not signed by the deceased and the

vehement submission of the petitioner that the signatures of the deceased on

the Will and the Codicil are different from one another and which also

appears to be prima facie correct on a perusal by the naked eye; this Court is

of the view that the period of limitation for filing the present petition would

arise from the date when the petitioner had knowledge that this codicil had

not been executed by their deceased father. This knowledge came in the

knowhow of the petitioner in July, 2011. The present petition has been filed

in May, 2014 i.e. within three years from the date of the knowledge.

20 Article 137 of the Limitation Act admittedly applies to a testamentary

disposition and this is clear from the judgment of the Apex Court reported

as AIR 2008 SCC 2058 Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur

While dealing with this issue the Apex Court had culled out the conclusion

in para 16; conclusion (c) would be relevant in the context of the instant case

which reads herein as under:

(c) such an application is for the Court's permission to perform a

legal duty created by a Will or for recognition as a testamentary trustee and

is a continuous right which can be exercised any time after the death of the

deceased, as long as the right to do so survives and the object of the trust

exists or any part of the trust, if created, remains to be executed."

21 The petitioner's right did not get extinguished to challenge this

testamentary bequeath i.e. codicil dated 14.10.1976 as he learnt about the

forgery/unvalidity of this document only in July, 2011 when his appeal

before the Central Information Officer was allowed for the first time; he got

a chance to view/see this codicil. At the cost of repetition, even on a

repeated query put to the learned counsel for the respondents in the court as

to whether this document is his only answer on the codicil is that he has not

seen it and even he does not know where it is lying.

22 In the view of this Court this petition cannot be thrown out at this

nascent stage. It requires trial. The rights of the parties need to be

adjudicated upon. The vehement argument of the applicant that the contrary

plea set up by the petitioner also makes out a case for rejection of the plaint,

is misconceived. This plea on the face of the plaint and the accompanying

documents is not evident. Admittedly, the declaration deed purported to

have been executed by the petitioner in the year 1994 ( on the blind faith that

he has reposed in his mother) was dispelled by the subsequent registered

cancellation document cancelling the aforenoted declaration deed which

cancellation document the petitioner had executed on 04.6.2013. The parties

need to be relegated to a trial.

23 Application under Order VII Rule 11 of the Code is dismissed.

INDERMEET KAUR, J MAY 08, 2017 ndn