Delhi High Court
Surinder Kumar Grover vs State on 25 April, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Test. Case No.38/2000 & CS(OS) No.140/1997
% Reserved on: 19th April, 2018
Pronounced on: 25th April, 2018
1. Test. Case No.38/2000
SURINDER KUMAR GROVER ..... Petitioner
Through: Ms. Kajal Chandra, Advocate
with Ms. Prerna Chopra,
Advocate and Ms. Viren
Kapur, Advocate.
versus
STATE ..... Respondent
Through: Mr. Rajiv Bahl, Advocate with
Mr. S.P. Srivastava, Advocate
for objector.
2. CS(OS) No.140/1997
SATISH KUMAR & ORS. ..... Plaintiffs
Through: Mr. Rajiv Bahl, Advocate with
Mr. S.P. Srivastava, Advocate.
versus
SURINDER KUMAR GROVER & ANR. ..... Defendants
Through: Ms. Kajal Chandra, Advocate
with Ms. Prerna Chopra,
Advocate and Mr. Viren
Kapur, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1.(i) By this judgment, two cases are being disposed of. Both
the matters are consolidated in terms of the order dated 1.2.2005
passed in the suit. Disputes are between siblings of late Smt.
Sheelawati Grover. First case is Testamentary Case 38/2000 filed by
Sh. Surinder Kumar Grover son of Smt. Sheelawati Grover. On one
side is ranged the petitioner Sh. Surinder Kumar Grover, one son of
Smt. Sheelawati Grover and Sh. Krishan Kumar Grover, and the
other side is ranged by all the other siblings being the other sons and
daughters of late Smt. Sheelawati Grover. Testamentary case 38/2000
filed by Sh. Surinder Kumar Grover is with respect to the Will dated
10.5.1989 said to have been executed in his favour by the mother
Smt. Sheelawati Grover. The propounded Will is a one page Will in
the handwriting of Smt. Veena Grover who is the wife of the
petitioner. The second case is the suit for partition CS(OS) No.
140/1997 filed by five children; one son and four daughters; of late
Smt. Sheelawati Grover namely Sh. Satish Kumar Grover (son), Smt.
Kanchan Ahuja (daughter), Smt. Indu Gulati (daughter), Smt. Shashi
Kalra (daughter) and Smt. Madhu Narang (daughter). One more son
of Smt. Sheelawati Grover is Sh. Ravinder Kumar Grover, the
defendant no.2 in the suit, and who though has remained ex-parte in
the proceedings but he has opposed the petitioner Sh. Surinder Kumar
Grover, as Sh. Ravinder Kumar Grover has appeared as a witness on
behalf of the respondents in the testamentary case against the
petitioner Sh. Surinder Kumar Grover by deposing against the Will
dated 10.5.1989. The property subject matter of dispute, both in the
testamentary case and the partition suit, is H-4/5, Model Town, Delhi
owned by the mother Smt. Sheelawati Grover.
(ii) Since the basic aspect to be decided is whether or not Smt.
Sheelawati Grover died leaving behind her Will dated 10.5.1989,
hence the testamentary case is first taken up for discussion and
judgment.
Test Cas. No.38/2000
2. By this testamentary case, the petitioner Sh. Surinder
Kumar Grover seeks Letters of Administration with respect to the
Will dated 10.5.1989 of his mother Smt. Sheelawati Grover. The
Will in question is an unregistered Will. Smt. Sheelawati Grover
died on 23.5.1989.
3. In this testamentary case, the following issues were
framed:-
"1. Whether the alleged Will dated 10-5-89 purported to be executed
by the deceased Smt. Sheelawati Grover is a valid Will and was
executed by her while she was possessed of sound disposing
mind?
2. Whether the petitioner is entitled to probate/or letter of
administration to administer the estate of late Smt. Sheelawati
Grover?
3. Relief."
4. Right at the outset, let me reproduce the scanned copy of
the subject Will inasmuch as quite a few issues will turn with respect
to the form and formatting of this propounded Will including of the
adjustment of the contents being only on one page, strange places of
appearing of the signatures of the deceased testatrix Smt. Sheelawati
Grover, the unusual placement of the signatures of the attesting
witnesses etc etc. The subject Will is scanned and reproduced
below:-
5. The issue is that whether the subject Will dated
10.5.1989 can be held to be the duly executed Will of late Smt.
Sheelawati Grover.
6. To prove the due execution of the Will and soundness of
mind of the deceased testatrix Smt. Sheelawati Grover, petitioner has
led the evidence of both the attesting witnesses Sh. S.V. Goel and Sh.
Harbans Lal Saini as PW-4 and PW-6. Petitioner has also stepped
into the witness box as PW-1. Petitioner's wife Smt. Veena Grover,
in whose handwriting the Will has been made, has deposed as PW-5.
The depositions of both the attesting witnesses as examination-in-
chief is almost identical and therefore one affidavit by way of
evidence of the attesting witness Sh. S.V. Goel is reproduced as
under:-
" EVIDENCE BY WAY OF AFFIDAVIT
I, S.V. Goel son of Shri Satya Prakash Goel, aged 53 years, resident of H.
No.G-5/8, Sector-15, Delhi-110085, do hereby solemnly affirm and
declare as under:-
1. That the deponent attended the birthday ceremony of Pankaj
Grover son of Surinder Kumar Grover on 10.5.1989 at H-4/5, Model
Town, Delhi. In the said ceremony, Shri Harbans Lal Saini was also
present.
2. That on 10.5.1989, Smt. Sheelawati Grover, mother of Satish
Kumar Grover and Surinder Kumar Grover, who was known to the
deponent, called the deponent and Harbans Lal Saini in the room. She
also called Smt. Veena Grover wife of Shri Surinder Kumar Grover and
expressed her desire to execute the Will. She dictated her Will to Smt.
Veena Grover on 10.5.1989 in the presence of the deponent and Harbans
Lal Saini. Smt. Veena Grover scribed the Will at her instance and the
instructions of Sheelawati Grover. The said Will so executed by the
deceased is Ext. DW-1/3.
2. That Smt. Sheelawati Grover signed the Will in the presence of
the deponent at Point A and deponent signed at Point B and Harbans Lal
Saini signed at Point C. She read and understood the Will and signed the
Will in full senses and sound disposing mind in the presence of the
deponent, Harbans Lal Saini and Smt. Veena Grover. The deponent and
Harbans Lal Saini signed at the instance of Smt. Sheelawati Grover on
the Will at Point B & C.
3. That Smt. Sheelawati Grover was of sound disposing mind and in
full senses and she has executed the Will of her own.
4. That before the Will was signed by the deceased, she read over
the Will, Ext.DW-1/3, and explained to the deponent and Harbans Lal
Saini."
7. Both the attesting witnesses have been cross-examined
and in their cross-examination they have reiterated what is stated by
them in their affidavits by way of evidence and they have denied that
they are not the attesting witnesses to the Will or that the subject Will
was not duly executed by the deceased testatrix Smt. Sheelawati
Grover. Both the attesting witnesses have further deposed that the
Will was dictated by the deceased testatrix to Smt. Veena Grover
wife of the petitioner on the day when the birthday of Sh. Pankaj
Grover, the son of petitioner and Smt. Veena Grover was celebrated
at the residence of petitioner in the suit property and which function
was attended by the attesting witnesses. Both the attesting witnesses
have also deposed that there were about 15 to 20 other guests at the
birthday function but none of the other siblings of the petitioner Sh.
Surinder Kumar Grover and their family members were called. The
attesting witnesses have deposed that the testatrix called them and
Smt. Veena Grover to one room inside the house and where she
dictated the Will to Smt. Veena Grover in one go i.e no draft was
prepared and also that the subject Will was dictated by the testatrix
without first preparing any notes. Relevant to this aspect of Will
having been dictated without first making any notes and by a single
dictation, admittedly Smt. Sheelawati Grover had studied only upto
Class II. Evidence has also been led on behalf of the petitioner with
respect to the Will being admitted by the legal heirs of Smt.
Sheelawati Grover in certain judicial proceedings.
8. On behalf of the siblings of the petitioner who have
contested the testamentary case, evidence is led of two witnesses Sh.
Kamal Kumar Grover (son of late Sh. Satish Kumar Grover the son
of Smt. Sheelawati Grover) as RW-1 and Sh. Ravinder Kumar Grover
as RW-2. It has already been stated above that Sh. Ravinder Kumar
Grover is defendant no.2 in the suit for partition who remained ex-
parte in the suit and he also did not file any objections/written
statement in the Testamentary Case, however he has appeared as a
witness on behalf of the contesting siblings of the petitioner Sh.
Surinder Kumar Grover to deny that the subject Will is the valid Will
of his mother Smt. Sheelawati Grover. I may note that counsel for
the petitioner had feebly sought to argue that deposition of Sh.
Ravinder Kumar Grover/RW-2 has no meaning and effect in the
absence of written objections filed by him, however this argument
urged on behalf of the petitioner is rejected inasmuch as merely
because a person has not filed written objections cannot mean that he
cannot depose as a witness in a case in support of the other contesting
parties/siblings to oppose the allowing of the testamentary case. If a
person has not filed any written objections/written statement then
such a person cannot lead evidence pertaining to his own
objections/written statement/pleadings, however in law such a person
can always depose as a witness with respect to the written
statement/objections filed by the objectors to the testamentary case.
9. A reading of the examination-in chiefs of RW-1 and
RW-2 shows that they have deposed that no photographs have been
filed by the petitioner of the alleged birthday celebration, and that no
other documentary evidence is at all filed to establish that in fact the
birthday ceremony of Sh. Pankaj Grover (the son of the petitioner)
was celebrated on 10.5.1989. Both RW-1 and RW-2 have deposed
with respect to the subject Will being a false and fabricated document
and signatures having been taken of the testatrix on a blank paper. It
has also been deposed that there are great doubts of the validity of the
propounded Will on account of the testatrix signing not once but
twice on the single page Will with the fact that second signatures very
mysteriously and strangely appear on the bottom left half of the
single page Will. It is also deposed by the witnesses of the objectors
that the petitioner Sh. Surinder Kumar Grover had shifted to live
separately, way back in the year 1980, from his parents, and
petitioner with his family was living separately in the suit property
no.H-4/5, Model Town, Delhi which was owned by Smt. Sheelawati
Grover and that the Will was not executed by the testatrix at her own
residence at 65, Tagore Park, Delhi and which/where she would have
done so if testatrix had really to execute her Will. The shifting of the
petitioner and his wife away from the parents and other family
members is inter alia deposed to for the reason that the petitioner and
his wife were misbehaving and harassing the testatrix and other
family members whose lives were made a hell. It is further deposed
that the deceased testatrix had sent a legal notice dated 19.9.1987
terminating the licence of the petitioner Sh. Surinder Kumar Grover
to stay in the suit property no. H-4/5, Model Town, Delhi. This legal
notice has been proved by the RW-1 as Ex.RW1/6 and the registered
AD and UPC receipts are proved as Ex.RW1/7. It is noted that in any
case this legal notice otherwise stands proved because petitioner in
his cross-examination conducted on 6.10.2005 admitted that he had
received a notice dated 19.9.1987 from Sh. M.D. Sharma, Advocate
said to have been issued on behalf of Smt. Sheelawati Grover
terminating the lease of the petitioner with respect to the three rooms
on the first floor of the suit property. As already stated above the
testatrix was living not with the petitioner but with her other children
at 65, Tagore Park, Delhi.
10. In the light of the aforesaid evidence, besides the other
evidence which is led, this Court has to determine as to whether the
testatrix Smt. Sheelawati Grover died leaving behind her validly
executed Will dated 10.5.1989. As regards the unsoundness of mind,
in my opinion, this aspect has not been seriously contested before this
Court and with the fact that there is no evidence led of lack of
soundness of mind of the deceased testatrix on 10.5.1989, and
therefore it is held that the testatrix was of sound mind on 10.5.1989.
11. In my opinion it has to be held that the Will is a false
and fabricated document and the same is accordingly rejected for the
reasons as are stated hereinafter. The detailed reasons given below
clearly show not only the existence of too many suspicious
circumstances showing that the Will is not a duly executed Will of
the testatrix and actually the propounded Will is a fabricated
document written on a blank paper which already had the signatures
of the deceased testatrix Smt. Sheelawati Grover. The reasons are:-
(i) The first set of suspicious circumstances to reject the Will is
the total format of the Will as stated herein. One suspicious aspect is
of the curious placing on the Will of the two signatures of the
testatrix Smt. Sheelawati Grover. One signatures appears at the left
hand bottom half of the Will with the signatures of one attesting
witness namely Sh. S.V. Goel appearing above this signatures at
point A-1 and the signatures of the other attesting witness Sh.
Harbans Lal Saini appearing below the signatures of Smt. Sheelawati
Grover at point A-1. Next aspect is that besides the fact that one
signatures at point A-1 on the left hand bottom part of the Will has no
reason to exist where it exists, the same is taken with the fact that the
signatures of one attesting witness Sh. S.V. Goel appear just above
the signatures at point A-1 and the signatures of the second attesting
witness Sh. Harbans Lal Saini exist below, and this curious placement
of signatures is because it is seen that below the portion signed at
point A-2 by testatrix there did not exist enough space for signatures
and address of both the attesting witnesses. It is for this reason that
the signatures of one attesting witness has been got adjusted in the
portion above the signatures of Smt. Sheelawati Grover at point A-1.
The fact is that there is no reason existing or explanation given by the
petitioner or his witnesses as to why signatures of testatrix would
strangely exist/appear on bottom left half of the single page Will.
Further it is seen that the written portion of the Will mentioning the
factum of testatrix mentioning the date of execution of the Will is in
comparative smaller letters (portion above signatures of testatrix at
point A-2) and these smaller size letters is to adjust the subject
content of the portion above point A-2 signatures because there was
only one blank signed document of testatrix available with the
petitioner. All in all, the sum and substance effect of the above stated
facts is that the Will is a fabricated document adjusted by its contents,
placement of writing, difference in size of letters, placement of
signatures etc on a blank signed document as of Smt. Sheelawati
Grover.
(ii) Neither the petitioner who deposed as PW-1, nor his wife Smt.
Veena Grover who deposed as PW-5 and none of the two attesting
witnesses who have deposed as to why the testatrix signed not once
but twice and why the second signatures have been placed at the
bottom of the left half of the subject Will. Once there is no
explanation forthcoming from any of the attesting witnesses, or the
petitioner or his wife who scribed the Will, as to the reason for
existence of the signatures of the testatrix at point A-1 on the Will in
the left hand bottom half of the Will, this fact is a suspicious
circumstance clearly showing that the document being the subject
Will was blank when it was signed by the testatrix Smt. Sheelawati
Grover.
(iii) In addition to the above facts showing that the Will is a
fabricated document on a blank paper containing signatures of
testatrix, it is required to be noted that the subject Will Ex.RW1/P1 is
a folded document. Normally a Will if it is executed the same being a
very very important document would have been carefully preserved
and it would not be folded. Even if the paper of the Will was to be
folded, then at best it would have been folded once in the middle
from top to the bottom. It is however seen that the Will is folded as
many as four times with three folds appearing from left to right and
one fold appearing from top to bottom in the middle. The subject Will
was admittedly in possession of the wife of the petitioner namely
Smt. Veena Grover inasmuch as admittedly Smt. Veena Grover has
stated that the testatrix gave this Will to Smt. Veena Grover for safe
keeping on the next date when Smt. Sheelawati Grover left the house
of the petitioner to go back to her own house at Tagore Park, Delhi.
Along with the aforesaid facts of folding of the Will four times, the
most important aspect is that the signatures appearing at point A-2 on
the right hand bottom portion of the Will appears on the third fold
from the left to the right and as a result of the folding the signatures
of testatrix have been considerably effaced. It is clearly a suspicious
circumstance that if really the subject document propounded as a Will
was executed as a Will with the signatures of the testatrix, then there
is absolutely no reason why the main signatures (at point A-2) which
appear at the ordinary/normal place of execution of the Will, would
be got effaced/mutilated as a result of the folding of the Will at the
very place where the main signatures appear on the Will.
(iv) It is completely unbelievable that a person who is only Class II
passed would at one go dictate and prepare the subject Will. Even a
legally well versed person would take time and prepare notes before
making of a Will. It cannot be believed that the testatrix was a veteran
in dictation, that too veteran in legal contents of a Will, that the
subject Will was dictated in one go to her daughter-in-law Smt.
Veena Grover, the wife of the petitioner, and that too admittedly
without making notes or a draft.
(v) In the year 1989, surely photography was order of the day with
respect to functions, and if there was really a birthday function
organized at the house of the petitioner on 10.5.1989 when the
subject Will is said to have been dictated, executed and attested, then
it does not stand to reason as to why there would not have existed
even a single photograph of the birthday function. This aspect has to
be taken with the fact that admittedly none of the siblings of the
petitioner with their family members were invited, and who ordinarily
ought to have been invited in the birthday function, especially when
as many as 15 to 20 strangers admittedly attended the birthday
function. Also, no independent evidence of any of the so called 15 to
20 guests who attended the birthday function has been led that there
was indeed such a birthday function celebration of Sh. Pankaj Grover
son of the petitioner Sh. Surinder Kumar Grover on 10.5.1989.
(vi) There is no reason why the subject Will would not be written,
executed and attested by that testatrix at her own residence at Tagore
Park instead of preparing, executing and getting attested the same at
the residence of the petitioner. It is not the case of the petitioner that
the testatrix Smt. Sheelawati Grover wanted to deliberately keep the
Will secret from her husband or other children. There is therefore no
reason for holding that testatrix Smt. Sheelawati Grover would have
got written, executed and attested the Will at the residence of the
petitioner instead of her own residence.
(vii) There are no reasons pleaded, and nor have any reason been
deposed to on behalf of any of the witnesses of the petitioner, that the
testatrix Smt. Sheelawati Grover had bad relations with her daughters
or there were other reasons why the daughters were disinherited by
the testatrix. Admittedly in the Will reference is only made to the
sons of the testatrix Smt. Sheelawati Grover by giving reasons for not
bequeathing the Model Town property to them, and in the Will even
the existence of the daughters has not been mentioned, what to talk of
reasons being given for disinheriting the daughters. It is rightly
argued by the objectors that this was so because only one blank
signed paper of Smt. Sheelawati Grover existed with the petitioner
and therefore not all contents as ordinarily and generally would be
found in a Will could be adjusted/mentioned in the subject Will.
Also, there is an earlier two page typed Will of Smt. Sheelawati
Grover dated 6.2.1989 and it is very strange that why by the subject
Will dated 10.5.1989 the testatrix Smt. Sheelawati Grover
disinherited even her own husband in whose favour she had made her
earlier Will Ex.RW3/1 dated 6.2.1989 and which is only because of
lack of space in the subject one page Will which is propounded. I
may note that it is not in dispute between any of the parties that the
testatrix Smt. Sheelawati Grover had indeed made her earlier Will
dated 6.2.1989 bequeathing the Model Town property in favour of
her husband Sh. Krishan Kumar Grover.
(viii) No reasons have been proffered on behalf of the petitioner or
his witnesses as to why the subject Will was not mentioned by Smt.
Sheelawati Grover even to her husband Sh. Krishan Kumar Grover
although allegedly on the next date of executing the Will the testatrix
went back to her home in Tagore Park. There is no reason why if the
testatrix Smt. Sheelawati Grover had made a Will she would not have
informed this factum to her husband Sh. Krishan Kumar Grover and
with whom she was living in the Tagore Park property along with her
children. In fact the petitioner cannot even contend that his father, i.e
the husband of the deceased testatrix Smt. Sheelawati Grover, was
aware and had knowledge of the subject Will inasmuch as admittedly
the husband of Smt. Sheelawati Grover Sh. Krishan Kumar Grover
had filed a probate petition in the District Court with respect to the
earlier Will dated 6.2.1989 executed by Smt. Sheelawati Grover in
favour of her husband Sh. Krishan Kumar Grover and which action
by Sh. Krishna Kumar Grover would not have been taken if he knew
that his wife had executed the subject Will in favor of the petitioner.
The argument urged on behalf of the petitioner is a misconceived
argument that Sh. Krishan Kumar Grover thereafter withdrew his
probate petition and did not oppose to the grant of Letters of
Administration in favour of the petitioner, because the subsequent
withdrawal of the probate case by Sh. Krishan Kumar Grover will not
take away the fact that Sh. Krishan Kumar Grover many many
months after the death of testatrix in May, 1989, being not aware of
the subject Will had therefore filed in November, 1990 the probate
case with respect to the earlier Will dated 6.2.1989 executed by Smt.
Sheelawati Grover in his favour.
(ix) As per Para 4 of the affidavit by way of evidence of the
petitioner Sh. Surinder Kumar Grover, he has deposed that it was his
mother Smt. Sheelawati Grover who had celebrated the birthday of
his son Sh. Pankaj Grover. If therefore it is the mother Smt.
Sheelawati Grover who had celebrated the birthday of her grandson
Sh. Pankaj Grover son of Sh. Surinder Kumar Grover, then the
celebration since it was by the mother, would have been at the
residence of the mother at Tagore Park and not at the residence of the
petitioner at Model Town and where testatrix would have visited her
family members. It is only if the birthday was celebrated by the
parents of Sh. Pankaj Grover, being the petitioner Sh. Surinder
Kumar Grover and Smt. Veena Grover, then the celebration would
have been at the residence of the parents of Sh. Pankaj Grover but
when admittedly the birthday celebration was by Smt. Sheelawati
Grover then the birthday function would have been celebrated at the
residence of Smt. Sheelawati Grover at Tagore Park, New Delhi.
12. At this stage, it is required to be noted that petitioner Sh.
Surinder Kumar Grover admittedly had filed a probate case
propounding a Will dated 13.9.1993 of his father Sh. Krishan Kumar
Grover. This probate case 131/2006 was filed by Sh. Surinder Kumar
Grover in the year 1995. This probate petition was admittedly
dismissed by a detailed judgment dated 29.7.2006 running into 40
pages by Smt. Bimla Makin, ADJ, Delhi, and certified copy of this
judgment (being a public document under Section 74 of the Indian
Evidence Act, 1872) is on the record of this case. Admittedly the
challenge by Sh. Surinder Kumar Grover against this judgment dated
29.7.2006 has been dismissed right till the Supreme Court and
certified copy of this order dated 12.9.2011 of the Supreme Court is
on record. In my opinion, therefore this fact also can be taken note of
by this Court that the petitioner propounds Wills which are not
genuine.
13.(i) Learned counsel for the petitioner argued that Sh.
Krishan Kumar Grover was a defendant in the present suit, and he
withdrew his objections as noted in the order in this testamentary case
passed on 17.5.1993, and therefore it should be held that Smt.
Sheelawati Grover died leaving behind her subject Will dated
10.5.1989.
(ii) In my opinion, however this argument has no merits and is
liable to be rejected. Merely because of Sh. Krishan Kumar Grover
withdrawing his objections to the subject Will will not mean that the
Will is proved inasmuch as the Will is opposed by all the other
children of Smt. Sheelawati Grover, and therefore, the subject Will
has otherwise to be proved in accordance with law and the Will
cannot be held to be proved merely because Sh. Krishan Kumar
Grover has accepted the same. After all it cannot be overlooked that
Sh. Krishan Kumar Grover had in fact filed in November 1990 his
own testamentary case for grant of probate/Letters of Administration
for the earlier admitted Will dated 6.2.1989 of Smt. Sheelawati
Grover, and therefore obviously Sh. Krishan Kumar Grover the
husband of Smt. Sheelawati Grover was definitely not aware till
November 1990 of the existence of the subject Will dated 10.5.1989.
A subsequent withdrawal of the objections on 17.5.1993 by Sh.
Krishan Kumar Grover cannot take away the fact that Sh. Krishan
Kumar Grover himself was not aware of the existence of the Will
dated 10.5.1989 till November 1990. Therefore the admission of Sh.
Krishan Kumar Grover at best would operate in his favour and would
not operate against all other children of Smt. Sheelawati Grover and
Sh. Krishan Kumar Grover for taking the Will as proved, much less
in a probate case in which the judgment will be a judgment in rem
and not in personam.
14.(i) Learned counsel for the petitioner then argued that RW-
1 Sh. Kamal Kumar Grover (son of Sh. Satish Kumar Grover son of
Smt. Sheelawati Grover) who deposed on behalf of the contesting
respondents/objectors is not competent to depose because Sh. Kamal
Kumar Grover had filed his suit for declaration claiming rights in the
property of Smt. Sheelawati Grover, but Sh. Kamal Kumar Grover
had accepted the Will executed by Smt. Sheelawati Grover in terms
of his application Ex.RW1/P2 dated 23.1.1990 for withdrawing his
suit filed against Sh. Surinder Kumar Grover.
(ii) This argument of the petitioner is however liable to be rejected,
because as observed above with respect to the admission of Sh.
Krishan Kumar Grover, an admission made by Sh. Kamal Kumar
Grover would only bind himself and not other siblings of Sh.
Surinder Kumar Grover. It is also noted that Sh. Kamal Kumar
Grover in his application Ex.RW1/P2 dated 23.1.1990 for
withdrawing the suit had only mentioned that he was withdrawing the
suit because the mother of the petitioner had executed a Will in
petitioner's favour, but this application is completely silent as to
which is this Will ie. what is the date of this Will.
(iii) Therefore in my opinion merely because Sh. Kamal Kumar
Grover had admitted to one Will of Smt. Sheelawati Grover by his
application Ex. RW1/P2, would not mean that the subject Will stands
proved in spite of the opposition thereto by as many as five other
children (being sons and daughters) of Smt. Sheelawati Grover.
15.(i) Learned counsel for the petitioner then argued that the
subject Will should be held to be proved because an eviction petition
was filed before the Rent Controller against a tenant of the ground
floor of the Model Town property, and that in these proceedings on
the basis of the subject Will, the petitioner Sh. Surinder Kumar
Grover was allowed to continue the petition as the legal heir of Smt.
Sheelawati Grover by dismissing the application filed by the
objectors herein for being impleaded as legal heirs of Smt. Sheelawati
Grover. All these aspects are recorded in the order dated 21.8.1996
(Ex.RW1/P5) passed by learned Single Judge of this Court in SAO
No. 25/1994 titled as Sh. Surinder Kumar Grover and Sh. Krishan
Kumar Grover Vs. Ravinder Kumar Grover, Sh. Nawal Kishore
Jain (tenant), Sh. Satish Grover, Smt. Kanchan Ahuja, Smt. Indu
Grover, Smt. Shashi Kalra and Smt. Madhu. It is argued that this
order dated 21.8.1996 is final that therefore all the legal heirs of Smt.
Sheelawati Grover have held to have accepted the validity of the
subject Will dated 10.5.1989.
(ii) In order to appreciate this argument reference will have to be
made to the order dated 21.8.1996 passed in SAO No. 25/1994 along
with the memo of parties in the said SAO and this order with the
Memo of Parties reads as under:-
"Memo of Parties
1. Surinder Kumar Grover
Son of Shri Krishan Kumar Grover,
2. Krishan Kumar Grover
Son of Shri (Late) Mukand Lal Grover
Both residents of Property No.H-4/5,
Model Town, Delhi:110009.
......Appellants
VERSUS
1. Ravinder Kumar Grover,
Son of Shri Krishan Kumar Grover,
Resident of 65, Ground Floor
Tagore Park, Delhi:110009
2. Nawal Kishore Jain (tenant)
Son of Not Known
Resident of Ground Floor
H-4/5, Model Town, Delhi:9.
3. Satish Kumar Grover
Son of Shri Krishan Kumar Grover,
Resident of: 65, First Floor,
Tagore Park, Delhi:110009.
4. Smt. Kanchan Ahuja,
Wife of Shri K.L. Ahuja,
5. Smt. Indu Gulati
Wife of Vijay Gulati
6. Smt. Shashi Kalra,
Wife of Shri Surinder Nath Kalra
7. Smt. Madhu Narang,
Wife of P. Paul Narang,
All residents of House No.65,
First Floor, Tagore Park,
Delhi. .......Respondents
Order dated 21.8.1996
Present: Mr. R.K. Jain, for the appellant.
Mr. M.D. Sharma for respondent No.3.
SAO 25/94 & CM 1935/95
Counsel for the L.Rs has conceded that under the latest Will of Mrs.
Shielawati, only the petitioner has acquired interest in the property in
dispute and no other L.R. including Mr. K.K. Grover or anyone claiming
under him or anyone claiming under the deceased Shielawati had any
right, interest or title in the property in dispute. The earlier Will, which
was set up by Late K.K. Grover in a Court, while attempting to seek
probate of that Will, was also withdrawn by him by concealing that the
Will set up by the petitioner happens to be subsequent and valid and the
earlier Will was of no consequence. In that view of the matter, there is
no doubt that none of the L.Rs of Late K.K. Grover except for the
petitioner, Surender Kumar Grover himself can be considered to be
necessary party to the petition.
In view of the above position, I am of the opinion that the impugned
order of the Rent Control Tribunal dated 15.7.1994 cannot be sustained
and is hereby set aside. The persons who were added as respondents
Nos.2 to 8 to the Eviction Petition are struck off the record, particularly
in view of the fact that these L.Rs are not challenging the Will of Late
Shielawati in favour of Mr. Surender Kumar Grover. This appeal and the
application are disposed of in the above terms.
August 21, 1996 sd/-
Aks J.K. Mehra
Judge"
(iii) Though on the first blush this argument urged on behalf of the
petitioner seemed to have substance, however on a deeper
examination of the same it is found that the same is without any merit
and therefore is rejected for reasons given hereinafter.
(iv) No doubt the contents of the order refer to the legal heirs of
Smt. Sheelawati Grover having accepted the Will but on 21.8.1996
when the order was passed in the SAO there was only representation
on behalf of Sh. Satish Kumar Grover who was the respondent no.3
in the SAO 25/1994. No other legal heirs of Smt. Sheelawati Grover
were represented, either in person or through Advocate. I have asked
the counsel for the petitioner that if really all the legal heirs of Smt.
Sheelawati Grover besides Sh. Satish Kumar Grover the respondent
no.3 in the SAO had consented to the validity of the subject Will,
then all that petitioner had to do was to file the certified copy of the
Vakalatnama in SAO of Sh. M.D. Sharma, Advocate if the
Vakalatnama was on behalf of all the respondents in SAO who are
the legal heirs of Smt. Sheelawati Grover, but admittedly this has not
been done. Also, if the legal heirs had not objected to the Will of
Smt. Sheelawati Grover, then there would otherwise have been filed
some NOCs or some other pleadings or document on record in the
SAO for not objecting to the Will, but admittedly no such NOCs or
pleading or documents allegedly filed in the SAO have been filed and
proved in this case. Really therefore the only No Objection in the
SAO to the subject Will of Smt. Sheelawati Grover was only and
only on behalf of Sh. Satish Kumar Grover, and that too which was
limited with respect only to the case filed before the Rent Controller
under the Delhi Rent Control Act, 1958 against the tenant Sh. Nawal
Kishore Jain, and which will not have the effect of res judicata on the
question of title as immediately discussed hereinafter.
(v) A judgment or order which is passed in the Delhi Rent Control
Act proceedings does not determine the question of title of a property.
This is so made clear in Section 50 of the Delhi Rent Control Act and
which reads as under:-
"Section 50. Jurisdiction of civil courts barred in respect of certain
matters.- (1) Save as otherwise expressly provided in this Act, no civil
court shall entertain any suit or proceeding in so far as it relates to the
fixation of standard rent in relation to any premises to which this Act
applies or to eviction of any tenant therefrom or to any other matter
which the Controller is empowered by or under this Act to decide, and no
injunction in respect of any action taken or to be taken by the Controller
under this Act shall be granted by any civil court or other authority.
(2) If, immediately before the commencement of this Act, there is any
suit or proceeding pending in any civil court for the eviction of any tenant
from any premises to which this Act applies and the construction of
which has been completed after the 1st day of June, 19581, but before the
9th day of June, 1955, such suit or proceeding shall, on such
commencement , abate.
(3) If, in pursuance of any decree or order made by a court, any tenant
has been evicted after the 16th day of August, 1958, from any premises to
which this Act applies and the construction of which has been completed
after the 1st day of June, 1951, but before the 9th day of June, 1955, then,
notwithstanding anything contained in any other law, the Controller may,
on an application made to him in this behalf by such evicted tenant within
six months from the date of eviction, direct the landlord to put the tenant
in possession of the premises or to pay him such compensation as the
Controller thinks fit.
(4) Nothing in sub-section (1) shall be construed as preventing a civil
court from entertaining any suit or proceeding for the decision of any
question of title to any premises to which this Act applies or any question
as to the person or persons who are entitled to receive the rent of such
premises." (underlining added)
(vi) Obviously the issue of representation in a rent control
proceedings is limited to the extent of relief in the rent control
proceedings case which is filed against the tenant, and therefore
representation by means of allowing an application under Order XXII
CPC under the Delhi Rent Control Act is really limited to pursuing of
the rent control case and nothing further. It is therefore held that
because of Section 50 of the Delhi Rent Control Act with the fact that
there was no representation on behalf of the legal heirs at the time of
passing of the order dated 21.8.1996 in SAO No.25/1994, it cannot
held that the subject Will was admitted by all the legal heirs of Smt.
Sheelawati Grover (except Sh. Satish Kumar Grover) and who are
contesting this probate case and have also filed the connected suit for
partition of the Model Town property of Smt. Sheelawati Grover.
16. In view of the aforesaid discussion, it is held that
petitioner has failed to prove that the deceased testatrix Smt.
Sheelawati Grover died leaving behind her last valid Will dated
10.5.1989. Probate petition is accordingly dismissed with costs.
Objectors will file their affidavits with respect to legal costs incurred
by them in these proceedings, and which affidavits be filed supported
by the certificates of the lawyers having received the fees, within a
period of four weeks from today, and these costs will be the costs
payable by the petitioner to the contesting respondents. Costs be paid
within a period of eight weeks from today.
CS(OS) No.140/1997
17. This is a suit seeking for partition of the property No.H-
4/5, Model Town, Delhi. The suit, as already stated in the aforesaid
judgment in Testamentary case 38/2000, is filed by the five plaintiffs
who are the five children, being sons and daughters, of Smt.
Sheelawati Grover and Sh. Krishan Kumar Grover. The contesting
defendant in the suit is defendant no.1 Sh. Surinder Kumar Grover -
the petitioner in the Testamentary Case. Defendant no.2 is Sh.
Ravinder Kumar Grover who though is ex-parte in the present suit,
but if the suit is decreed by holding that the suit property has to be
partitioned on account of Smt. Sheelawati Grover dying intestate,
then Sh. Ravinder Kumar Grover will also have an equal share in the
suit property as will be given to other legal heirs. As discussed in
detail in the judgment in Testamentary Case 38/2000, the defendant
no.2 has in fact deposed in support of the objectors for dismissing the
testamentary case and therefore for rejection of the Will dated
10.5.1989 allegedly executed by Smt. Sheelawati Grover.
18. In this suit, the following issues were framed on
1.2.2005:-
"1. Whether the Will dated 10.5.1989 is the last legal and valid
testament of late Smt. Sheelawanti Grover? OPD
2. If issue No.1 is decided against the defendant, to what share are
the plaintiffs entitled to in House No.H-4/5, Model Town, Delhi?
OPP
3. Relief."
Issue No.1
19. Issue No.1 will stand decided against defendant no.1 in
this suit Sh. Surinder Kumar Grover in view of the detailed
discussion, reasoning and conclusion given while dismissing the
Testamentary Case 38/2000.
Issue No.2
20. Issue No.2 will therefore be answered in favour of the
plaintiffs and consequently a preliminary decree is passed with
respect to property no. H-4/5, Model Town, Delhi by giving 1/7th
share each to:-
(i) Sh. Satish Kumar Grover
(ii) Sh. Ravinder Kumar Grover
(iii) Sh. Surinder Kumar Grover
(iv) Smt. Kanchan Ahuja
(v) Smt. Indu Gulati
(vi) Smt. Shashi Kalra
(vii) Smt. Madhu Narang
Relief
21. Suit of the plaintiffs is decreed. Let a preliminary decree
be drawn up in terms of shares of the parties as stated above.
22. List on 10th August, 2018 for further proceedings with
respect to the final decree in the suit.
APRIL 25, 2018 VALMIKI J. MEHTA, J
