Naveen Chander Kapur vs State & Ors
2017 Latest Caselaw 6452 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                           Reserved on: 08th November, 2017
                                           Pronounced on: 15th November, 2017

+      TEST.CAS. 3/2011

       NAVEEN CHANDER KAPUR
                                                                   ..... Petitioner
                                Through :        Mr.Raman Kapur, Sr Advocate
                                                 with    Mr.Dhiraj      Sachdeva,
                                                 Advocate.

                                versus

       STATE & ORS
                                                                   ..... Respondents
                                Through :        Mr.Rahul        Sharma         and
                                                 Mr.C.K.Bhatt, Advocates for
                                                 respondent No.1/State.
                                                 Mr.Peeyoosh Kalra, Mr.Sanad Kr
                                                 Jha    and    Mr.Amit       Bhagat,
                                                 Advocates for respondent Nos.3 to
                                                 5/applicant.
                                                 Mr.Jaswinder Singh, Advocate for
                                                 L & DO.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA

YOGESH KHANNA, J.

IA Nos.13055/2017 and 13056/2017

1. The respondent nos. 3 to 5 have moved two applications (a) IA No.13055/2017 under Order 14 Rule 5 read with section 151 CPC for framing of additional issues and; (b) IA No.13056/2017 for directing the petitioner to carry out the admission and denial of documents filed by the

L&DO and for permitting the respondent nos. 3 to 5 to file affidavit of admission and denial to the documents filed by the petitioner.

IA No.13055/2017

2. In application IA No. 13055/2017 qua framing of additional issues the following facts are alleged:

a) the petitioner has filed this petition for probate of Will dated 03.10.1996 allegedly executed by Smt.Ved Vati Kapur. The respondent nos. 3 to 5 are the legal heirs of the deceased brother of the petitioner and are opposing the grant of probate. Respondent no.6 is also one of the legal heirs of deceased brother of the petitioner;

b) the subject matter of the dispute is property bearing no. 3, Nizamuddin East, New Delhi. It is the case of the respondents that this property was HUF property and was partitioned by way of memorandum of family settlement dated 21.02.1994 and the said settlement was acted upon by the parties including the petitioner. It recorded division of property amongst the brothers with life interest in favour of their mother namely Smt.Ved Vati Kapur;

c) at the time of settlement, the property had only two floors-ground floor and 1st floor and it conferred upon the petitioner the right to construct the second floor and that in terms of the MoU the petitioner had constructed the said floor and is the occupation of the same;

d) the petitioner along with his two brothers had applied for mutation of the property before the L&DO enclosing the Will dated

12.07.1995 of Mr.K.N.Kapur father which recorded the division of the property in terms of the MoU and the said application was signed by the petitioner, his two brothers and accompanied by 7 affidavits of all other legal heirs of late Shri.K.N.Kapur. The property was divided amongst the three brothers with life interest in favour of late Smt.Ved Vati Kapur vide communication dated 12.03.1998 of L&DO.;

e) it is alleged that Smt.Ved Vati Kapur had no power to make a Will dated 03.10.1996 as property had already been partitioned by a memorandum of settlement recorded in the Will of the father.;

f) it is also alleged that the Will dated 03.10.1996 of the late Smt.Ved Vati Kapur is in violation of section 152 of the Indian Succession Act since the property stood adeemed and there was nothing left to be bequeathed in the Will dated 03.10.1996.;

g) though the petitioner has claimed that he was in the possession of the Will of the mother as well as the copy of the Will of late Shri.K.N. Kapur but signed the application for mutation filed before the L&DO, the contents of which application were contrary to the alleged Wills. Rather the petitioner did not inform the Will of his mother was in his possession and hence the Will dated 03.10.96 is shrouded by suspicious circumstances as she had no right to bequeath and there was no reason for her to execute the Will since she herself had executed various documents to the contrary and to prove these contentions following additional issues need to be framed:-

"i) Whether on account of family settlement dated 21.02.1994, the Will dated 03.10.1996 executed by Late Smt. Ved Vati kapur is adeemed under law?

ii) Whether the Testatrix, i.e. Late Smt. Ved Vati Kapur had testamentary capacity to the nature and extent of the property in question?

iii) Whether the present probate petition is liable to be dismissed on account of concealment and suppression of material facts?

iv) Whether Will dated 03.10.1996 executed by Late Smt. Ved Vati Kapur is shrouded by suspicious circumstances?"

3. The issues in the present case were framed on 27.01.2016. The facts alleged now in this application were well within the knowledge of respondents no.3 to 5 even at such stage but they did not press for the issues narrated above. Admittedly the respondents knew of the memorandum of settlement being alleged basis for recording mutation with the L&DO. Rather an application under Order 12 Rule 6 CPC( IA No. 13399/2014) was moved by respondents no.3 to 5 alleging all facts as are alleged in this application but the court vide its order dated 27.01.2016 had dismissed the application and recorded as follows:

"This application is not pressed in view of the observations which are made by this Court and which are that decision of this probate petition will not in any manner be reflection on title/ownership of immovable property bearing no.3, Nizamuddin East, NewDelhi in view of the catena of the judgments of the Supreme Court that a probate petition does not in any manner decide title of the property which is subject matter of the Will and the probate petition. A probate even if

granted in favour of the petitioner will not in any manner mean that petitioner has title/ownership to the property no.3, Nizamuddin East, New Delhi. Issue of title with respect to the property is an issue which will necessarily have to be decided in appropriate civil proceedings. The issue of. petition being baited by limitation is left open to be decided at the stage of final arguments. I.A. stands disposed of with the aforesaid observations."

4. Thus issues which now are sought to be framed have already been taken care of on 27.01.2016 when an application of respondents filed under Order 12 Rule 6 CPC was not only dismissed but it was rather observed the issue of determination of title to property shall not be within the jurisdiction of this Court. Even otherwise proposed issues i)the property being adeemed per section 152 of the Indian Succession Act and

ii) qua the testamentary capacity of late Smt.Ved Vati Kapur to execute her Will dated 08.10.96 are well covered in issue no.1 framed on 27.01.2016 and the reasoning given in the said order. Even the proposed issues no. 3 and 4 viz. probate petition is liable to be dismissed on account of the concealment and/ or the Will dated 03.10.1996 is shrouded with suspicious circumstances, is also covered by issue no.1 framed on 27.01.2016, wherein the respondents no.3 to 5 would get ample opportunity in their evidence to prove the Will dated 03.10.1996 is allegedly not valid due to circumstances they allege.

5. Here I would also like to refer to an order dated 13.10.2006 passed in probate case 35/1999 by this Court and it note :-

"It appears that in the present mater, some of the respondents have pleaded and set up family settlements which they have entered into on 22nd August, 1990 and 31st March, 19987. Based thereon, it has been contended that the Will dated 18th September, 1978 cannot be given effect to. In my view such a question does not arise for consideration in the present proceedings which shall remain confined to the execution and validity of the Will relied upon by the petitioner. Accordingly, the issue nos.2 and 3 which were framed in respect of these family settlements on the 17th May, 2006 cannot be adjudicated upon in the present proceedings and are consequently directed to be deleted. The respondents who are placing reliance on such family settlement shall be at liberty to seek adjudication thereon in appropriate proceedings in accordance with law. "

6. Thus for reasons aforesaid application IA No.13055/2017 is dismissed.

IA No.13056/2017

7. The second application IA No.13056/2017 is for directing the petitioner to admit or deny the documents filed by the L&DO on the ground the petitioner as well as his deceased mother had signed documents viz the family settlement as also an application filed with the L&DO for mutation is also frivolous because the petitioner did not deny signing such alleged documents but also narrate the circumstances under which such documents were got signed from him or from his mother, as is stated by the petitioner in his reply to the objections filed by the respondent nos. 3 to 5. The averments in the reply are as follows:

xxxx "C. It is stated that the petitioner had no cause or motive to alter shri K.N. Kapurs will for the purpose of inheriting the property via an application to the L&DO since the petitioner had in his possession smt. Ved Vati Kapur's Will, that is being probated, at least a year before the application to the L&DO was made. In this Will Smt Ved Vati Kapur had willed the property to her three sons, including the petitioner, xxxx It is further submitted that for the first and last time the word 'HUF' was ever used in respect of. the said property was when Shri Satish Chander Kapur and his family pressurized late Shri K. N. Kapur to execute the documents titled as Memorandum of Family Settlement dated 21st February, 1994 in order to ensure that his sisters are excluded from the said property' It is stated that the said document was prepared by late Shri Satish Chander Kapur and his father agreed to sign the same as he was constantly being pressurized by Shri Satish Chander Kapur to execute the same. on the asking of the father, the petitioner herein as well as late Shri Subhash Chander Kapur also signed the said document. lt is pertinent to add that the said family settlement was never acted upon, and even otherwise the same is not a legally valid document.

xxxx With respect to the documents signed by the petitioner and submitted to the L&DO and the MCD, it is stated that Shri Satish Chander Kapur first asked the petitioner for a Power of Attorney made out to him for the purpose of settling their fathers Will. The petitioners mother told the petitioner not to give the power of attorney under

any circumstance. Mother asked the petitioner to speak to her before signing any paper since the petitioner had no knowledge of how the family matter were being taken care of, as he had been living in USA since the age of 22. The petitioner had full faith and trust in Shri Satish Chander Kapur and Geeta Kapur and had NO inkling of the fraud being committed by them. The petitioner was then sent the application to be submitted to the L&DO by his brother, late Shri Satish Chander Kapur and Geeta Kapur There were no enclosures sent with the application. The petitioner again spoke to his mother, Who asked him to sign the papers sent by Satish Chander Kapur, as she did not want any further problems and wanted to live peacefully. She told the petitioner that she had already bequeathed the property to her three sons so it did not matter what the papers said with respect to her share. And that it was better for her peace of mind if the sons inherited the property before her death rather than after it. Had the enclosures been sent to the petitioner he would have never signed the documents and would have stopped his brother and the objectors from going further with the forged documents as the mother's Will in the petitioner's possession had already bequeathed the property to the three brothers, and as such, there was no reason for Shri Satish Chander Kapur and the objectors to fear that the property would pass on to the sisters or anyone else.

8. The aforesaid submissions do clarify the admission and denial of such documents is not at all necessary since the petitioner himself has explained the circumstances under which the documents were got signed. Suffice is to refer to an order dated 23.07.2014 of this court in IA No.5816/2014 which notes:

"I.A.5816/2014 This is an application filed by the defendants no.3 to 5 seeking a direction to L&DO and MCD to place true attested copies of the record pertaining to the suit property in the Court. L.&DO has already filed the record in terms of the order dated 15.3.2011 read with Order dated 21.7.2011 and 28.3.2014. It is pointed out that MCD has failed to comply with the orders. Leave is granted to the parties to summon the record in accordance with law. Application stands disposed of."

9. In the circumstances stated above there is no reason to give any direction to the petitioner to carry the admission and denial of the documents filed by the L&DO and also to allow the respondent to file now an affidavit of admission/denial to the document of the petitioner once the matter is listed for evidence.

10. The applications are dismissed being devoid of merits.

TEST.CAS. 3/2011

11. List on 30.01.2018.

YOGESH KHANNA, J NOVEMBER 15, 2017 DU