Delhi High Court
Kanchan Babbar And Ors. vs State And Anr. on 13 October, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.387/2017
Reserved on: 10th October, 2017
% Pronounced on: 13th October, 2017
KANCHAN BABBAR AND ORS. ..... Appellants
Through: Mr. Gagan Deep
Sharma, Advocate.
Versus
STATE AND ANR. ..... Respondents
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
FAO No.387/2017 and C.M. No.36356/2017 (stay)
1. This first appeal is filed under Section 299 of the Indian
Succession Act, 1925 impugning the judgment of the probate court
below dated 1.2.2017 which has allowed the petition and has granted
probate with respect to the Will dated 23.9.1997 executed by the
deceased testator Ex.MWO Nand Lal Surma with respect to his
property being industrial plot no.38A, Functional Industrial Estate of
Electronics, Okhla Industrial Estate Phase II, New Delhi. By this Will
the subject property was bequeathed in favour of the respondent no.2
herein, the son of the deceased testator by excluding the four
daughters of the deceased testator. Probate petition was filed by the
respondent no.2 herein who is the son of the deceased testator. The
daughters of the deceased testator, i.e the sisters of the respondent no.2
herein were the respondents in the probate petition filed in the court
below. The Will dated 23.9.1997 is duly registered with the Sub-
Registrar office at Janakpuri, New Delhi vide registration no.60774 in
Additional Book no.3 Volume No.129/4001.
2. The facts of the case are that the respondent no.2
herein/petitioner in the court below, applied for probate of the Will
dated 23.9.1997 executed by his father Ex.MWO Nand Lal Surma.
Respondent no.2 was appointed as the executor of the Will. In the
probate petition, the four daughters of the deceased testator were
arrayed as respondent nos.2 to 5. The objections which were filed by
the respondent nos.2 to 4 in the probate court below were rejected vide
order dated 18.8.2008 of the trial court and which order has become
final. It is seen that the respondent nos.2 to 4 in the probate court
below therefore have filed no objections/written statement, and have
therefore also led no evidence. The probate petition in the court below
was contested by the respondent no.5 in the court below Smt. Kanchan
Babbar and who is the appellant no.1 in the present appeal.
3. From the records of the probate petition, it is seen that the
deceased testator owned two immovable properties. One property was
the subject property being industrial plot no.38A, Functional Industrial
Estate of Electronics, Okhla Industrial Estate Phase II, New Delhi.
The second property was the residential property of the deceased
testator being residential plot no.B-18, Nilamber Apartments, Rani
Bagh, New Delhi. With respect to the aforesaid two properties being
the industrial plot and the residential plot, there were a total of five
Wills which were executed by the deceased testator. The five Wills
were in two chains with one chain of Wills being only for the
industrial plot and the other chain of the Wills was with respect to the
residential plot. The first Will Ex.PW1/13 dated 19.2.1993 and the
third Will dated 23.9.1997 Ex.PW1/2 (Will in question in probate
case) were with respect to the industrial plot. The second Will
Ex.PW1/14 dated 24/25.2.1993, the fourth Will Ex.PW1/15 dated
2.12.1998 and the fifth Will Ex.PW1/16 dated 20.5.2002 are with
respect to the residential property. Whenever the deceased testator
Ex.MWO Nand Lal Surma made his Will, the Will was made only
specific to one property i.e each of the five Wills deals with only
either the residential property or the subject industrial plot. By all the
Wills the son of the deceased testator was the beneficiary or the
ultimate beneficiary.
4. The facts with respect to these five Wills are stated in
paras 58 to 63 of the impugned judgment and these paras read as
under:-
"58. The first Will Ex. PW-1/13 is dated 19.02.1993. The will is
notarized and attested by two witnesses, namely, Sh. Vinod Kumar Sharma
and Mrs Raksha Surma. No witness examined by petitioner. Witness Mrs
Raksha Surma, stated to be died. This will states about the allotment of plot
No. 136 ( New No. 38 A) measuring 250 Sq. Yards in Functional Industrial
Estate in favour of deceased testator by the Oakhla Authorities. In this will
the beneficiary is Avinash, son and also appointed as executor. This will is
not proved by the petitioner or respondents as per Section 63 (C) of Indian
Evidence Act but it is essential to establish the fundamental intention to rely
this will.
59. The Second Will is Ex. PW-1/14 dated 24-25.02.93. This will is a
registered will. This will is attested by two witnesses namely, Sh. Tilak Raj
Jaggi and Sh. G.P. Goyal, advocate. The deceased testator in this will states
that he is owner of society built flat bearing No. B-18, Ground floor, Under
MIG category, situated at Neelamber Appartment, Sainik Vihar, Pitam Pura,
Delhi-34. In this will the deceased testator described about his son and
daughters and the beneficiary is his wife Smt. Raksha Soor and after her
death it shall devolve upon son and all four daughters jointly. It was as per
submissions registered with Sub- Registrar on 24.2.1993. The first page of
the will mentioned dated 25.02.1993. It seems to be bonafide error.
60. The third Will is dated 23.09.1997 Ex. PW-1/2 ( Will in question).
It was executed and also got registered. There are two attesting witnesses of
this will i.e Sh. Anil Kumar and Sh. Rajan Mahajan, Advocate. The
deceased testator vide this will bequeathed a plot No. 38 measuring 220 sq.
mtrs in Okhla in favour of the petitioner. It does not states regarding any
other property i.e flat or any other movable property of the deceased.
Petitioner examined PW-2 Sh. Rajan Mahajan advocate, the attesting
witness.
61. The forth Will is Ex. PW-1/15 dated 02.12.1998. This Will also
attested by two witnesses i.e Sh. Satpal Taneja and Sh. R.K. Marwaha
„Gabbu" advocate. In this will deceased testator stated about flat No. B-18,
Neelamber Apartments, Opposite, Sainik Vihar, Pitampura, Delhi-34. The
Will has not mentioned about any industrial plot. It is also a registered Will.
In this Will also the deceased testator intended that flat shall devolve upon
his wife and after her death it devolve upon petitioner, his son subject to the
condition that he shall pay daughters, a sum of Rs. 1 lac to Neelam Ahi, Rs.
1 lac to Ms Kiran Kanwar, Rs. 3 lacs to Ms Veena Thakur , Rs. 1 lac to Ms
Kanchan Babbar and Rs. 50,000/- to Shiv Ashram Mauzaval, Naya Nangal
Distt. Ropar, Punjab.
62. It is pertinent to mention here that it mentioned about the plot at
Okhla and deceased testator that the sale proceed of the flat if wife is pre-
deceased to the son will be utilised for construction of industrial plot at
Okhla. It is further pertinent to mention that this will contain an important
class of revocation of will executed sometime ago which is read as under:
"I the above said testator have executed a Will sometime ago, I hereby
cancel and revoke the said Will and any other codicil of mine."
The petitioner examined PW-6 Sh. Satpal Taneja, the attesting witness to
prove this will.
63. The fifth Will was executed by deceased testator on 20.05.2002
which is Ex. PW-1/16. In this will the deceased testator states about flat
bearing No. B-18, Ground floor, AFNHB, Neelamber Apartment, Opp.
Sainik Vihar, Pitampura, Delhi-34. It has been bequeathed to the petitioner.
It reflects that his wife Smt. Raksha Soor might have died at the time of
execution of this Will because he has not referred her name in the will. He
has excluded all four daughters. This will attested by two witnesses, namely,
Sh. Jaswant Singh and Sh. R.K. Jain, advocate. Petitioner examined PW-5
as one of the attesting witnesses. This will does not states regarding Okhla
industrial plot and any other movable or immovable property of the
deceased." (emphasis added)
5. As already stated above, we are only concerned with the
validity of the third Will dated 23.9.1997 and which is a registered
Will. The two attesting witnesses to this Will are Sh. Anil Kumar and
Sh. Rajan Mahajan. Sh. Rajan Mahajan one attesting witness deposed
as PW-2 and he proved the subject Will dated 23.9.1997 as Ex.PW1/2.
This is discussed and noted by the trial court in paras 38 to 40 in its
impugned judgment and which paras read as under:-
"38. Petitioner further examined Sh. Rajan Mahajan, the attesting
witness to the Will dated 23.09.1997 Ex. PW-1/2. He identified his
signatures on the Will at point A & B. He also identified the signatures of
other attesting witness Anil Kumar at point C. He deposed that Anil Kumar
and deceased testator had concurrently signed the said will in his presence.
He identified the signatures of deceased testator at point D, E & F.
39. In the cross-examination PW-2 deposed that he is an advocate by
profession and enrolled in the year 1994. Since 1994 he has been drafting
registration documents, especially of property documents. In the year 1997
he used to prepare two-three documents daily and can identify the registered
documents by seeing the signatures and his seal.
40. He deposed that deceased testator used to take consultancy from
him regarding the properties and for the first time came through a common
friend. He deposed that he get register only two documents of deceased i.e
Will Ex. PW-1/2 and a power of attorney. The deceased came into contact
for the first time in the year 1995-96. He deposed that he does not know the
other attesting witness Sh. Anil Kumar, personally who had come with the
deceased testator." (underlining added)
6. The subject Will Ex.PW1/2 dated 23.9.1997 with respect
to which probate petition was filed reads as under:-
" WILL
This Will is made at New Delhi, on 23rd day of September, 1997, by Ex-
MWO Nand Lal Surma, S/o Sh. Mool Raj, R/o B-18, Neelamber
Apartments, Opposite Sainik Vihar, Pitam Pura, Rani Bagh, New Delhi
(hereinafter called the Testator on the one part). IN FAVOUR OF: SHRI
AVINASH SURMA, SON OF SHRI NAND LAL SURMA, RESIDENT
OF EA-331, G-8 AREA, RAJOURI GARDEN, MAYA ENCLAVE, NEW
DELHI (hereinafter called the Executor) of the other part.
Whereas I am the absolute owner/allottee of Plot which has been allotted as
Plot No.38, measuring 220.90 sq. mtrs. in Functional Industrial Estate of
Electronics in Okhla in 1 Area, Phase-II, New Delhi, at the rate of Rs.930/-
per sq. mtr. as tentative cost per sq. mtrs. by Commissioner of Industries
Delhi Administration Delhi, vide Letter No.F-
2(136)/Land/DI/83/CI/97/1273, Dated 27.8.1997, F-
2(136)/Land/DI/83/CI/92/38/653, Dated Nil, F-
2(136)/Land/DI/83/CI/92/2436, Dated 14.1.1993.
I willingly make this Will that after my death my rights, interest, liens and
titles in the said property and the land thereunder be acquired, possessed and
inherited by the Executor (my son) who may then get the same mutated/sub
situated and transferred in his/her own name as owner and lessee, in the
records of DDA, MCD, ESU, Commissioner of Industries Delhi, DSIDC, or
any other concerned authority on the basis of this Will or its certified true
copy.
That I, further declare that if the said Executor dies earlier than me, then his
legal heirs and successors shall become the owners, of the said
plot/property, without any objection by me land by my legal heirs and
successors.
That I further declare that this is my first and last Will in respect of the said
property and the land and has been executed by me on my own consent,
without any force, fraud, compulsion, coercion of allurement from any
corner whomsoever while in possession of sound health and disposing mind.
IN WITNESS WHEREOF, I, the Testator have put my hand on this WILL
at New Delhi, on the date, month and year hereinabove first mentioned in
the presence of the following witnesses.
WITNESSES:-
1. SH. ANIL KUMAR TESTATOR
S/o RAJ KUMAR
R/o 2/96A, LAWRENCE ROAD,
K. PURAM, DELHI
2. RAJAN MAHAJAN, ADVOCATE"
7. The affidavit by way of evidence filed by the attesting
witness Sh. Rajan Mahajan, Advocate is reproduced as under:-
"EVIDENCE BY WAY OF AFFIDAVIT FOR AND ON BEHALF OF SH.
RAJAN MAHAJAN (PW-2)
I, Rajan Mahajan, S/o Late Shri K.L. Mahajan, aged about 48 years, resident
of Flat No.B-19, Ashoka Apartment, Plot-8, Sector-12, Dwarka, New Delhi-
110075, practicing as an Advocate bearing Regn. No.D/341/94, do hereby
solemnly affirm and declare and affirm as under:-
1. That I say, I am one of the attesting witnesses of the Will dated
23.09.1997 executed by Late Ex MWO Nand Lal Surma and competent to
swear in this affidavit.
2. That I say, was known to Late Ex MWO Nand Lal Surma, S/o Late
Mool Raj for the last many years as legal consultant to his family on
23.09.1997.
3. That I say, I vividly remember that Late Ex MWO Nand Lal Surma
had called me in the morning of 23rd September, 1997 to know about my
availability for some documentation on which I confirmed my availability
and asked to come at my office. Late Ex MWO Nand Lal Surma along with
Sh. Anil Kumar, the other attesting witness, came to my seat/office situated
in the office of The Sub-Registrar-II West, Janakpuri District Centre, New
Delhi-110058. I found that Late Ex MWO Nand Lal Surma was both
mentally and physically fit. I explained in detail the process and drill that is
to be followed for execution, attestation and registration of the Will that
would take approximately 3 hours.
4. That I say, the testator had asked me to draft his Will and
accordingly I drafted the Will as per his instructions and I presented draft of
his Will for him to read and understand it properly. After reading it he
requested me to incorporate some changes in respect to reference of
documents related to fresh allotment, demand letters of Commission of
Industries and appointment of Executor with the property disposition in
respect of the Industrial Plot recorded therein. Late Ex MWO Nand Lal
Surma had also requested me to sign the Will during his execution as
attesting witness along with another witness Sh. Anil Kumar and I agreed
upon for the same. When I enquired about Sh. Anil Kumar, the testator
confirmed to me that he had also agreed to be an attesting witness in the
testamentary document at the request of the testator.
5. That on 23rd of September 1997, I found that Ex MWO Nand Lal
Surma was in good healthy physical and mental condition and was in full
understanding of the property description and dispositions (after reading the
revised draft Will and comparing with the original documents held in his
personal record) being made by him in his Will dated 23.09.1997. After
having understood the contents and effect of his recorded disposition made
in his said Will the testator confirmed with cheerfulness his satisfaction.
The testator had told me that this Will dated 23.09.1997 was his last Will
and testament in respect of property disposition being made by him in this
Will being executed out of his free will and volition.
6. That I say, I also vividly remember that upon being asked by me
about the identification papers of the testator (Army Id Card) and other
witness then these were made available to me by the testator and other
attesting witness Sh. Anil Kumar (Driving licence). I verified documents of
identification and its reference nos. as were recorded of the Will dated
23.09.1997. The other attesting witnesses Sh. Anil Kumar also endorsed his
name and residential address along with his driving license No.
7. That I say, the testator, Ex MWO Nand Lal Surma asked us to
simultaneously place our i.e. attesting witness‟s, signature at appropriate
earmarked places. I along with the other attesting witness Sh. Anil Kumar
upon visually observing that, Ex.MWO Nand Lal Surma had put his left
thumb impression followed by his signatures on his Will dated 23.09.1997,
above the marked place at "TESTATOR" and also above his affixed
photograph on the Will dated 23.09.1997. I along with Sh. Anil Kumar the
other attesting witness simultaneously and concurrently signed the Will in
the presence of each other and the testator. All of us endorsed our
attestation/signatures upon the face of the Will dated 23.09.1997. The
testator on completion of due execution and attestation acknowledged and
declared/announced that the execution and attestation of Will has been done
to his satisfaction and thanked the attesting witnesses.
8. That I say, the testator had further requested me to get the said Will
registered with the Sub Registrar -II West, District Janakpuri, New Delhi -
110058 on which I agreed and facilitated the same. At that time after some
waiting Wg. Cdr. Avinash Surma, who had been made executor of the said
Will by the testator, had also arrived at my office and the testator expressed
satisfaction contents of the Will and its execution and attestation and
expressed his gratitude. During the registration process on enquiry by the
Sub Registrar the testator displayed cheerfulness and satisfaction that he had
executed along with due attestation the Will out of this free will and
volition. I as long with other witness and the executor were present before
the Sub-Registrar during the Registration process. Upon being enquired
from the sub-registrar 1 along with Sh. Anil Kumar had confirmed that we
had simultaneously signed the said Will as attesting witnesses and the
testator had also signed and affixed his left thumb impression in front of me
and other attesting witness. After recording identification and receiving the
confirmation of duly execution and attestation from the testator, attesting
witnesses and duly appointed Executor, the Sub Registrar registered the
Will dated 23.09.1997
Sd/-
DEPONENT
VERIFICATION
Verified by me at New Delhi, on this 22nd day of August, 2016, that the
contents of this affidavit are true and correct to the best of my knowledge
and belief and no part of it is false and nothing material has been concealed
there from.
Sd/-
DEPONENT"
(underlining added)
8. The cross examination conducted of this witness PW-2
Sh. Rajan Mahajan on 27.8.2016 reads as under:-
"xxxxx by counsel for respondent No.5.
I am an advocate by profession. I was enrolled in the year 1994. I do
drafting and registration of documents property documents since 1994. In
the year 1997 I used to got prepared 2-3 documents daily. I identify my
drafted and registered document by seeing my signature and my seal. I
cannot recall the description of each and every client by pressing my
memory but certain I do,who are regular. Deceased used to take consultancy
from me regarding the properties. For the first time he came to my contact
through a common friend. I cannot recollect the name of the common
friend. I got registered only two documents of deceased Nand Lal Surma
i.e. the Will in question Ex.PW1/2 and power of attorney. No other
documents got registered by me on behalf of the deceased. I came into the
contact for the first time with the deceased in the year 1995-96. I do not
personally know the other attesting witness Sh. Anil Kumar, he had come
with the deceased testator. I have not filed any document to show that the
deceased testator consulted me on a regular basis for legal issues. It is
wrong to suggest that I am deposing falsely."
9. A reading of the evidence in the affirmative of Sh. Rajan
Mahajan, Advocate with his cross examination establishes beyond
doubt that the deceased testator Sh. Nanad Lal Surma has duly
executed the subject Will dated 23.9.1997 Ex. PW1/2 and the same
was duly attested by the attesting witnesses Sh. Rajan Mahajan and
Sh. Anil Kumar.
10.(i) I have reproduced the aforesaid aspects of due execution
and attestation of the subject Will though really counsel for the
appellants has not argued any issue with regard to the fact that the
Will dated 23.9.1997 of the deceased testator Sh. Nand Lal Sharma
has not been validly executed and attested. What was the only issue
which was argued on behalf of the appellants was that the Will dated
23.9.1997 stood revoked and superseded by the subsequent Will dated
2.12.1998 and which contained the following lines:-
"I, the above said testator have executed as will same time ago, I hereby
cancel and revoke the said will and any other codicil of mine."
(ii) It is also argued by the appellants that the respondent no. 2
herein had concealed the execution of the Will dated 20.5.2002 Ex.
PW1/16.
11.(i) The first argument and issue to be examined which is
urged on behalf of the appellants is as to whether the lines of the Will
dated 2.12.1998, Ex. PW1/15, and which lines are reproduced above,
whether the same revoke the subject Will dated 23.9.1997.
(ii) I completely agree with the reasoning of the trial court that the
aforesaid lines do not amount to revocation of the Will dated
23.9.1997 by the Will dated 2.12.1998 merely because in the Will
dated 2.12.1998 it is found to be written that the testator cancels and
revokes a Will made some time ago by him. Trial court in this has
rightly observed that the Will dated 2.12.1998 is in that chain of Wills
which only and exclusively dealt with the residential property and
therefore if there is any revocation by the subject lines in the Will
dated 2.12.1998 these lines necessarily have to be read by revoking
only the Will dated 24/25.2.1993 with respect to residential property
because the Will dated 2.12.1998 was only qua the residential
property and the earlier Will for the residential property was the one
dated 24/25.2.1993. For the sake of convenience the Wills dated
24/25.2.1993 and 2.12.1998, and both of which deal only with the
residential property of the deceased testator at Pitam Pura, Delhi, are
reproduced as under:-
"Will dated 24/25.2.1993
DEED OF WILL
This Deed of Last will and Testament of Shri Nand Lal Soor aged about 70
years, son of late Sh. Mool Raj Soor, R/o B-18, Neelamber Apartment,
Sainik Vihar Delhi-34, is made at Delhi on this 25th day of Feb. 1993.
Life is short. God knows when it may come to end. Hence I with my free
will and consent/ without any force or compulsion from others execute this
will in good health and sound mind.
That so long as I am alive I shall remain the owner of Society built Flat
No.B-18, on Ground Floor, under MIG category, situated at Neelamber
Appartment, Sainik Vihar, Pitam Pura, Delhi-34, which is my self acquired
property with my own funds and sources. And after my death the above
mentioned Flat alongwith lease hold rights of the land underneath and all
other properties belonging to me at the time of my death shall go, devolve
and bequeath to my wife Smt. Raksha Soor, W/o Sh. Nand Lal Soor, R/o B-
18, Neelamber Appartment, Sainik Vihar, Delhi-34, and she shall have full
right to hold, use, enjoy and transfer the same in any manner, She like and
after her death the above mentioned Flat go and devolve on my son and
daughters namely (1) Sh. Avinash Soorma (son), (2) Mrs. Neelam Ahi w/o
Sh. Madan Mohan Ahi, (3) Mrs. Kiran Kanwar w/o Sh. Kanwar Subhash
Chander, (4) Mrs. Veena Thakur w/o Sh. Rajeshwar Thakur and (5) Smt.
Kanchan Babbar w/o Sh. Swedesh Babbar, in equal share and they shall,
have full right to hold use, enjoy and transfer jointly, in any manner they
like.
That in case any other person or relative comes forward and object in any
manner, then their objections regarding the above mentioned properties,
shall be considered as Null and void in the court of law or any panchayat
etc.
IN WITNESS WHEREOF I have signed this Last will after understanding
the contents of the same on the day, month and year first above written in
the presence of the following witnesses, who have also signed in my
presence after understanding the contents of the same.
TESTATOR
Sd/-
(Sh. Nand Lal Soor)
Signed by the above named Sh. Nand Lal Soor (Testator) in our presence at
the same time and each of us have in the presence of the Testator signed our
names hereunder as attesting witnesses. The contents of this will have been
explained to the Testator and have been admitted by him as correct.
WITNESSES: TESTATOR:
Sd/- Sd/-
1. Sh. Tilak Raj Jaggi, (Sh. Nand Lal Soor)
S/o Sh. (Late) Gian Chand Jaggi,
R/o 751-53, Gali Dore wali,
Paharganj, New Delhi
2. G.P. Goyal G.P. Goyal
Advocate Advocate
Delhi Delhi
Will dated 2.12.1998
FAMILY-WILL
This last & final will is made and executed at Delhi, on this 02nd day of Dec.
1998 by, Sh. Nand Lal Soor, son of Late Sh. Mool Raj Soor, R/o MIG flat
No.B-18, Neelamber Apartment Opp. Sainik Vihar, Pitampura, Delhi-34,
(hereinafter called the Testator)
I, the above said testator have executed as will same time ago, I hereby
cancel and revoke the said will and any other codicil of mine,
AND WHEREAS I am owner and occupier of Property No.B-18,
Neelamber Apartments, Opp. Sainik Vihar, Pitam Pura, Delhi-110034,
(hereinafter called the property).
AND WHEREAS I hereby bequeath that after my demise my above said
property should go and devolve upon my wife residing with me and looking
after me, to the exclusion of all my other legal heirs, daughters and
successors. However I further declare that if my wife subject to the
condition that my son Wing Commander Avinash Surma pay amounts to my
four daughters mentioned as under:-
1. Neelam Ahi Rs. 1,00,000/-(Rupees One lac Only)
2. Kiran Kanwar Rs.1,00,000/- (Rupees One Lac Only)
3. Veena Thakur Rs.3,00,000/- (Rupees Three Lac Only)
4. Kanchan Babbar Rs.1,00,000/- (Rupees One Lac Only)
5. Shiv Ashram Mauzaval Rs.50,000/- (Rupees fifty thousand only)
Naya Nangal Distt. Ropar Pb.
In case my wife predeceases me my son shall have full rights to sell,
mortgage, gift or otherwise deal with the said property after my demise and
to pay the above said amounts to my daughters out of the sale proceeds
derived thereof and the remaining amount, if any, be utilized by my son to
further construct Industrial Plot of 250 sq. Yds. Situated at Okhla Industrial
area Delhi.
I willingly cancelled this will
Sd/-
N.L. Surma
20.05.2002
I further declare and bequeath that after my death and demise of my wife all
the ornaments and other movable properties owned by me should be
distributed among my daughters in equal share.
IN CASE my other relative of any one else challenges this will, the same
shall be treated as null and void, in the court of law or Panchayat etc.
I HAVE made this will in order to avoid any controversy over my said
property which is self acquired.
AT PRESENT I, am in my sound mind and sound physique and I am in full
sense and I know the consequences of my actions and I fully understand
what I am doing and what is wrong or right.
THIS WILL HAS BEEN made by me without any coercion, Duress or
under influence. I have made this will voluntarily and on my own free will
and in the presence of witnesses. I have set my hand on this testament of
my Will in the presence of the following witnesses and in the presence of
each other on the day, month and year written first in above mentioned.
Sd/-
TESTATOR
Signed by the Testator by the with in named testator as his last will and
testament in our presence all being present at the same time. Thereafter at
his request and in his presence and in the presence of each other we have
subscribed our respective names.
Sd/-
WITNESSES TESTATOR
1. Sh. Satpal Taneja
R/o B-4/129, Sec.7
Rohini, Delhi-110085
Election card No.DI/03/020/009800/DT/27/5/95
2. I willingly cancelled this will
Sd/-
N.L. Surma
20.05.2002"
12. It is already stated above that when two chains of Wills
were executed by the deceased testator Sh. Nand Lal Surma, each
chain dealt with only one property i.e either the residential property or
the industrial property i.e one chain of the Wills were for the bequest
of the residential property at Pitam Pura, Delhi and the second chain
was with respect to industrial plot at Okhla Industrial Area, Phase-II,
New Delhi. Therefore, any language of revocation in the Will dated
2.12.1998 which was only for the residential property has necessarily
to be read as referring to not the subject Will dated 23.9.1997 which
was with respect to the industrial plot, and the lines of the Will dated
2.12.1998 revoking the earlier Will necessarily have to be read as
revoking the earlier Will for the residential property dated
24/25.2.1993. I agree with the conclusion of the trial court that by the
Will dated 2.12.1998 there was no intention of the deceased testator
Sh. Nand Lal Surma to revoke the Will dated 23.9.1997. This relevant
discussion of the trial court is in paras 64 to 70 of the impugned
judgment and which paras are reproduced as under, and I completely
agree with the reasoning and conclusions contained in the same:-
"64. It is now established on record that during the lifetime, the
deceased had executed in total five will. According to the contents of all the
five will he was having two immovable properties i.e one flat bearing No.
B-18, Neelamber Apartments, Opp. Sainik Vihar, Pitampura, Delhi-34 and
one industrial plot allotted to him by Okhla Industrial authorities. The Will
dated 24- 25/2/93 Ex. PW-1/14, the Will dated 2.12.98 Ex. PW-1/15 and
Will dated 20.5.2002 Ex. PW-1/16. Whereby intention of the deceased
testator has been established that he wish to devolved this flat for life time to
her wife and thereafter in the first time to all his daughters and son and later
on in subsequent will to the petitioner whereas in one he had put the
condition on petitioner to pay specific amount to all the sisters. It is
pertinent to mention here that the industrial plot is the subject matter of two
wills i.e Will dated 19.2.1993 Ex. PW-1/13 and Will dated 23.09.1997 Ex.
PW-1/2.
65. It is pertinent to mention here that the intention of the deceased
testator Nand Lal Surma precipitate and crystallized after going through all
the five will discussed in detail herein above. The fundamental intention of
deceased testator was to bequeath his residential flat by way of independent
separate will and industrial plot at Okhla by separate independent will.
Therefore, he had executed two independent chains of Wills. In first chain,
three wills were executed bequeathing the residential flat bearing No. B-18,
Neelamber Apartments, Opposite Sainik Vihar, Pitampura, Delhi-34. In the
second chain, two wills executed for bequeathing the industrial plot bearing
No. 38 A, Functional Industrial Estate of Electronics, Okhla Industrial
Estate Phase II, New Delhi measuring 220 sq mtrs in Okhla.
66. It is vital to note down that in both the sets of Wills there is no
mention of either of the property in the will which he has not bequeathed. It
means that, if he has been bequeathing the residential flat, then he has not
stating anything about the industrial plot. Similarly when he is bequeathing
industrial plot, then he is not stating about the residential flat.
67. Now vital question comes whether the Will dated 2.12.98 Ex. PW-
1/15 if executed whether it superseded the Will dated 23.09.1997 Ex. PW-
1/2. In order to analyze and understand the intention of the deceased
testator, it is precipitated that the will dated 2.12.1998 Ex. PW-1/15 contains
a clause which has been discussed herein above and reproduced i.e
revocation clause according to which the deceased had revoked the Will
sometime ago executed by him. It is not specify which will was executed
sometime ago the contents reflects that it pertains to the residential flat, so
the intention is to revoke earlier will with regard to residential flat i.e 24-
25th February 1993 Ex. PW-1/14. In case the deceased testator had any
intention to revoke the Will of 23.09.1997 Ex. PW-1/2 then he would have
mentioned some lines with regard to the industrial plot.
68. On the other hand in the will 02.12.1998 Ex. PW-1/15 makes
reference to the industrial plot and mention a wish that in case the
residential flat is subjected to sale, then sale proceed shall be utilise for
construction of it. It further corroborates the intention of deceased testator
that he wish to preserve and keep alive the will dated 23.09.1997 Ex. PW-
1/2 in respect of industrial plot. Hence in my considered opinion, the will
dated 02.12.1998 Ex. PW-1/15 has not superseded the will dated 23.09.1997
Ex.PW-1/2. The defacement of the Will dated 02.12.1998 Ex. PW- 1/15 has
no effect on the will dated 23.09.97 Ex. PW-1/2.
69. Now comes to the another vital issue, what would be the impact of
will dated 20.05.2002 Ex. PW-1/16 on the Will dated 23.09.1997 Ex. PW-
1/2 as discussed in detail hereinabove. The will dated 20.05.2002 Ex. PW-
1/16 is in respect to the residential flat bearing no. B-18, Neelamber
Apartments, Opposite Sainik Vihar, Pitampura, Delhi-34 and it specifically
revoked the will dated 02.12.1998 Ex. PW-1/15. In the entire body of the
will dated 20.05.2002 Ex. PW-1/16 there is no mention of industrial plot.
The will dated 20.5.2002 Ex. PW-1/16 also revoked the will dated
02.12.1998 Ex. PW-1/15 with a specific clause. Hence the intention
established that the Will dated 20.05.2002 Ex. PW-1/16 has no impact on
the Will dated 23.09.1997 Ex. PW-1/2. The analysis, scrutiny and
crystallization of all the facts on record established the intention of the
deceased testator was to keep alive and preserve the Will dated 23.09.1997
Ex. PW-1/2 with regard to the industrial plot. A special reference in the will
of 2.12.1998 Ex. PW-1/15 further corroborates the fact with regard to
preservation of keeping the Will alive dated 23.09.1997 Ex. PW-1/2 by the
deceased testator.
70. On the basis of above observation and discussion it is concluded
that deceased testator intended to keep alive and preserve the will dated
23.09.1997 with regard to the plot bearing no. Plot No. 38 A, Functional
Industrial Estate of Electronics, Okhla Industrial Estate Phase II, New Delhi
at Okhla Industrial area and it is not impacted and effected by any other Will
executed by the deceased during his life. Accordingly issue No. 4, 5, 6, 7 &
8 decided accordingly in favour of the petitioner and against the
respondents." (underlining added)
13. I therefore hold that the trial court has rightly held that
the subject Will dated 23.9.1997, Ex. PW1/2, is not superseded by the
Will dated 2.12.1998 Ex. PW1/15 i.e the third Will is not superseded
by the forth Will because both pertain to separate subjects i.e the
subject Will deals only with the industrial plot and the Will dated
2.12.1998 deals only with the residential property at Pitam Pura,
Delhi.
14. So far as the arguments urged on behalf of the appellants
that the respondent no. 2 herein had concealed the existence of the
Will dated 20.5.2002 it is seen that nothing turns upon this argument
because this fifth Will dated 20.5.2002 Ex. PW1/16 is only with
respect to residential property. This Will does not deal with the Okhla
Industrial Area plot. Therefore, once there are two chains of Wills
with one chain dealing with the residential property and other chain
dealing with the industrial plot, then in such a case no advantage was
derived by the respondent no. 2 herein of not having originally filed
the Will dated 20.5.2002. In fact the misconceived objection being
raised by the objector/appellant no.1 of concealment by the respondent
no. 2 of the Will dated 20.5.2002, the respondent no. 2 herein not only
filed this Will dated 20.5.2002 but got the same proved as Ex. PW1/16
by calling one attesting witness to this Will PW-5 Sh. Jaswant Singh.
Therefore, in my opinion there is no substance in the argument urged
on behalf of the appellants that the probate petition had to be
dismissed because the respondent no. 2/probate petitioner had
concealed the factum with respect to the Will dated 20.5.2002
executed by the deceased testator Sh. Nand Lal Surma.
15. Finally, it is required to be noted that learned counsel for
the appellants sought to argue that there was no reason for the
deceased testator to exclude his daughters and that such an objection
was taken by the appellant no. 1, respondent no. 5 in the trial court in
paras 6.7 of the written statement/objections, however, it is noted that
the affidavit by way of evidence filed by the appellant no. 1 in the
probate court below when examined, it is found that nothing is stated
by appellant no. 1 in her affidavit by way of evidence with respect to
contents of para 6.7 of the written statement that there was no reason
for the deceased testator to disinherit his daughters. In any case
contents of para 6.7 of the written statement filed by the appellant no.
1 in the probate court below were only cryptic and they did not
contain any details, and even assuming that the details could be added
by in terms of evidence being led, this was however not so done by the
appellant no. 1 who did not utter even a single line in her affidavit by
way of evidence that the deceased testator could have no intention to
disinherit the daughters including the appellant no. 1 as all the
daughters had good relations with the deceased testator. For the sake
of convenience para 6.7 of the written statement filed by the appellant
no.1 and the affidavit by way of evidence of appellant no. 1 is
reproduced below:-
"Para 6.7
6.7 The contents of para 7 are wrong and denied. It is in the personal
knowledge of the answering defendant that the deceased Sh. Nand Lal
Surma had no special love for his son and he never wished to exclusively
handover any property to his son, who never treated his father properly. In
the last few years of the deceased Sh. Nand Lal Surma, he was forcibly
confined in his house by the petitioner and the health and mental status of
the deceased had been severely affected due to his utter neglect in all
respects.
Affidavit of appellant no.1
I, Kanchan Babbar, W/o Sh. Swadesh Babbar, R/o B-1/911, Tower-9, Silver
City-II, Purvanchal, Sector Pi-II, Greater NOIDA, UP, Presently at Delhi,
aged about 55 years do hereby solemnly affirm and declare as under:-
1. I say that I am Defendant No.5 in the present petition.
2. I say that the petition for grant of probate of alleged Will dated 23rd
September, 1997 of Late Ex.MWO Nand Lal Surma, S/o Late Sh. Mool Raj
is not maintainable. I say that, to my knowledge, Late Sh. Nand Lal Surma
has not left behind any valid WILL. I say that after the death of Shri Nand
Lal Surma on 30.10.2003, the petitioner himself sent to the deponent, the
Letters dated 06.11.2003, 10.03.2004, 18.03.2004, 22.03.2004 and
01.04.2004 the copy of the WILL dated 20.05.2002 asserting the latter Will
to have been executed by the deceased Shri Nand Lal Surma. I say that the
petitioner concealed, in the first instance, from this Hon‟ble Court the
existence of WILL dated 20.05.2002, and thus played a fraud on this court. I
say that the contents of the said letters show that the petitioner wants to
deprive his four sisters of their legitimate shares in the properties of the
deceased Shri Nand Lal Surma. The letters dated 05.11.2003, 10.03.2004,
18.03.2004, 22.03.2004 and 01.04.2004 are exhibited herewith respectively
as Mark A, Exhibit PW-5/2, Exhibit PW-5/3 Exhibit PW-5/4 and Exhibit
PW-5/5.
3. I say that after the Written Objections of Respondent no.5 were
filed the petitioner was compelled to disclosed and bring on record the Wills
dated 02.12.1998 and 20.05.2002.
4. I say that the Late Ex. MWO Nand Lal Surma was not a permanent
resident of EA-331, Maya Enclave, New Delhi-110064.
5. I say that Late Ex. MWO Nand Lal Surma, to my knowledge had
not executed any WILL of his own volition and free will in respect of any of
his properties. I further say that since all 5 registered wills have been
produced and filed by, Sh. Avinash Surma therefore the Will dated
20.05.2002, be read as the last and final Will of the deceased.
6. I say that Late Ex. MWO Nand Lal Surma, S/o Late Shri Mool Raj
has left behind one son (the petitioner) and four daughters (defendants 2 to
5), and was never a permanent resident of EA 331, Maya Encalve, New
Delhi-110064. I deny that the earlier address of the petitioner was B-18,
Neelamber Apartments, Opposite Sainik Vihar, Pitam pura, Ranibagh, New
Delhi; I say that the said property was in fact the sole property of deceased
Shri Nand Lal Surma.
7. I say that Late Sh. Nand Lal Surma had not executed the WILL
dated 23.09.1997. I deny that the petitioner is the sole executor of any WILL
of Late Shri Nand Lal Surma.
8. I deny that Late Shri Nand Lal Surma had, voluntarily and of his
free Will, written the letter dtd. 29.10.2003 to Dy. Director of Industries. I
say that on 29.10.2003 the Late Nand Lal Surma was mentally and
physically extremely weak and feeble and in no position to speak, read or
write and in fact passed away the very next day on 30.10.2003. I further say
that the signature on the said Letter is forged and expert opinion in that
respect is exhibited herewith as Exhibit DW-5/6. I say that in any event the
alleged letter has no bearing on the validity of the said WILL OF
23.09.1997.
9. I say that the deceased Sh. Nand Lal Surma had no special love for
his son and lie never wished to exclusively handover any property to his
son, who never treated his father properly. I say that in the last few years of
the deceased Sh. Nand Lal Surma, he was forcibly confined within his house
by the petitioner and the health and mental state of the deceased had been
severely affected due to his utter neglect in all respects.
10. I say that the alleged General Power of Attorney of the deceased
Sh. Nand Lal Surma is invalid. I deny that any amount towards the cost of
the industrial plot of the deceased Sh. Nand Lal Surma was paid/contributed
by the petitioner.
11. I say that there is no valid WILL executed by Late Sh. Nand Lal
Surma on the basis of which the said industrial plot is to fall exclusively in
the hands of the petitioner.
12. I say that no liabilities have been left behind by the deceased Sh.
Nand Lal Surma, which were/are required to be discharged by the petitioner.
I say that the petitioner in fact is illegally withholding the substantial assets
left behind by the deceased Sh. Nand Lal Surma and fraudulently refusing
the distribution of the same amongst his sisters as per law.
13. I say that the petitioner is not entitled to grant of probate on the
basis of the present petition in respect of WILL dated 23.09.1997. I deny
that the alleged WILL dated 23.09.1997 is the last valid WILL of Late Sh.
Nand Lal Surma. I say that the contents of the other documents referred in
this Paragraph no.13 are false and wrong.
14. I say that in the facts and circumstances of the case the present
petition is liable to be dismissed against the petitioner and in favour of the
defendant with exemplary costs.
Sd/-
DEPONDENT
VERIFICATION
Verified at Delhi on this 05th day of November, 2016, that the contents of
the above affidavit are true upon my knowledge and belief and that nothing
material been concealed therefrom.
Sd/-
DEPONDENT"
16. Therefore, in my opinion there is no merit in the
argument urged on behalf of the appellants that the deceased testator
would not have intended to disinherit his daughters by the subject Will
dated 23.9.1997 for the industrial plot.
17. No other issue or argument is urged before this Court on
behalf of the appellants.
18. There is no merit in the appeal. Dismissed.
OCTOBER 13, 2017 VALMIKI J. MEHTA, J
Ne/godara
