Delhi High Court
Prabhjot Singh Kohli vs Raghbir Singh & Ors. on 31 January, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.41/2018
% 31st January, 2018
PRABHJOT SINGH KOHLI ..... Plaintiff
Through: Mr. Bhagat Singh, Advocate.
versus
RAGHBIR SINGH & ORS. ..... Defendants
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
I.A. No.1432/2018 (exemption)
1.
Exemption allowed subject to just exceptions.
I.A. stands disposed of.
CS(OS) No.41/2018 and I.A. Nos.1431/2018 (stay) & 1433/2018
(under Section 80 and 151 CPC)
2. This suit for partition and injunction is filed by the
plaintiff who is the son of Sh. Mohan Singh Kohli. Sh. Mohan Singh
Kohli was the son of late Sh. Jagat Singh Kohli and whose three
properties are subject matter of the present suit for partition. The
plaintiff‟s father and defendant nos.1 to 8 in the suit are children of
late Sh. Jagat Singh Kohli. Plaintiff along with defendant nos.9 to 17
are the grandchildren and great grandchildren of Sh. Jagat Singh Kohli
from the branch of the son Sh. Mohan Singh Kohli. As per the plaint,
admittedly Sh. Jagat Singh Kohli died on 19.11.1996 and before his
death he had executed two Wills. One Will is dated 2.1.1989 and the
second Will is dated 5.6.1996. There were a total of five properties
which were owned by late Sh. Jagat Singh Kohli at the time of his
death and these properties are stated in para 3 of the plaint as under:-
"a. Property No.31, Pusa Road, New Delhi, admeasuring 1500 sq. yds.
Approximately (Land + Superstructure);
b. Property No.10, Laj Building, New Rohtak Road, New Delhi,
admeasuring 150 sq. yds. Approximately (Land + Superstructure);
Earlier known as H. No.11281, Shidi Pur, Rohtak Road, New
Delhi.
c. Shop No.10, Gulabi Bagh, Delhi (Land + Superstructure);
d. Plot No.CW-193, Sanjay Gandhi Transport Nagar, New Delhi,
admeasuring 120 sq. mtrs. Approximately;
e. Plot No.CW-227, Sanjay Gandhi Transport Nagar, New Delhi,
admeasuring 120 sq. mtrs. approximately."
3. In terms of the first Will of Sh. Jagat Singh Kohli dated
2.1.1989, the aforesaid five properties were divided between his
children and grandchildren as stated in detail in the Will dated
2.1.1989. The second Will dated 5.6.1996 deals with two out of five
properties being CW-227, Sanjay Gandhi Transport Nagar, New Delhi
(120 sq. mtrs.) and CW-193, Sanjay Gandhi Transport Nagar, New
Delhi( 120 sq. mtrs.) and which were also the subject matter of
bequest under the first Will dated 2.1.1989. This second Will dated
5.6.1996 of late Sh. Jagat Singh Kohli reads as under:-
" WILL
THIS IS THE LAST WILL MADE BY SH. JAGAT SINGH KOHLI S/o
Sh. Nidhan Singh Kohli, 31, Pusa Road, Karol Bagh, New Delhi, in favour
of M.S. Kohli (son) Sh. Harbans Singh (Grand son)
Life is Short. God knows when it may come to an end. I am old
man of 90 years. I am also suffering so many deceased so I hereby
execute the said Will with my own consent without any pressure, undue
influence from any corner.
I have Four sons, namely; 1. Mohan Singh 2. Raghbir Singh 3.
Rambir Singh 4. Kulwant Singh and alongwith five daughters namely 1.
Pritam Kaur 2. Tripat Kaur 3. Inder Kaur 4. Kulwant Kaur 5. Dhanwant
Kaur.
During my life time I have given the share according to their equal
ratio in my moveable or immoveable property to my aforesaid sons and
my five daughters except my said son Shri M.S. Kohli.
I have not given any share in my moveable or immoveable
property to my elder son Shri M.S. Kohli son of Shri Jagat Singh Kohli
aged about 70 years.
I am the absolute owner of the plot no.CW-227, 120 Sq meter of
Sanjay Gandhi Tranport Nagar Delhi. The said plot is being allotted to me
by the MCD Delhi. So, I hereby execute my said Will without any
pressure, or any undue influence from any corner whatsoever may be that
after my death my said son Sh. M.S. Kohli shall be only the absolute
owner and beneficiary of the said plot only and my other legal heirs have
no right/title or interest in regard to the said plot and have a right to
execute the lease deed/mutation of the said plot in his namely alone.
I am also the owner of the plot no.CW-193, Sanjay Gandhi
Transport Nagar, Delhi, Sanjay Gandhi Transport Nagar, New Delhi, 120
sq mtrs. I without pressure that after my death my Grandson Sh. Harbans
Singh son of Shri M.S. Kohli resident of 10, Laj Building K.B. New Delhi
working as a Manager of M/s Mohansons Auto Stores, 10, Gulabi Bagh,
Delhi shall be only the absolute owner of the said plot and after my death
my grandson have every right to transfer the said plot in his own namely
the MCD and made correspondence of the said plot/before the MCD on
my behalf.
I hereby execute the said Will with love and affection with my
grandson namely Sh. Harbans Singh.
I put my signatures on this 5/6/1996
Sd/-
EXECUTANT
SH. JAGAT SINGH KOHLI
Witnesses
1. sd/-
2. sd/- "
4. In the plaint, the cause of action which is pleaded is that
on account of late Sh. Jagat Singh Kohli having executed his second
Will dated 5.6.1996, the earlier Will dated 2.1.1989 is automatically
revoked. Effectively what the plaintiff pleads as per the plaint is that
since a second Will is executed, and which though only deals with two
out of five properties which were bequeathed under the first Will
dated 2.1.1989, hence this second Will revokes the earlier Will dated
2.1.1989 even with respect to the first three properties as stated above
though such three properties are not the subject matter of bequest
under the second Will dated 5.6.1996.
5. I have already reproduced above the Will dated 5.6.1996
of late Sh. Jagat Singh Kohli. This Will in no way states that by
execution of this Will dated 5.6.1996, late Sh. Jagat Singh Kohli has
revoked the earlier Will dated 2.1.1989. All that this Will dated
5.6.1996 does is that it changes the bequest made by late Sh. Jagat
Singh Kohli with respect to two out of five properties, which were
also the subject matter of the earlier Will dated 2.1.1989, and therefore
in such a case, this second Will dated 5.6.1996 will revoke the earlier
Will dated 2.1.1989 only with respect to two properties which are
subject matter of the second Will dated 5.6.1996 and not for the three
properties which are not the subject matter of the second Will dated
5.6.1996. There is no law that on execution of a later Will with respect
to only some of the properties, an earlier Will which dealt with other
properties is deemed to be revoked. Therefore, in my opinion, on the
admitted facts as stated in the plaint no legal cause of action is made
out that the earlier Will dated 2.1.1989 stands revoked and
consequently the first three properties stated in para 3 of the plaint will
be treated as available to the legal heirs of late Sh. Jagat Singh Kohli
as if allegedly there was no Will with respect to first three properties.
6. In my opinion, it is legally incorrect for the plaintiff to
contend that Sh. Jagat Singh Kohli died intestate with respect to three
properties inasmuch as the first three properties stated in para 3 of the
plaint are in fact the subject matter of bequest under the Will dated
2.1.1989 and the subsequent Will dated 5.6.1996 does not revoke the
bequest with respect to first three properties bequeathed in terms of
the earlier Will dated 2.1.1989.
7. Contention of the counsel for the plaintiff is
misconceived by which it is sought to be urged that merely because in
the second Will dated 5.6.1996 it is written as that this Will is the last
Will will mean automatic revocation of the earlier Will dated
2.1.1989. The last Will only means that it is the last Will as regards
the properties which are subject matter of bequest under that last Will.
Obviously the expression „last Will‟ therefore will only operate with
respect to the subject matter of the bequest under that Will and not for
any other subject matter which is not touched upon in the second/last
Will dated 5.6.1996. Since the first three properties stated in para 3 of
the plaint are not touched upon under the Will dated 5.6.1996
therefore these properties will be governed in terms of bequest made
in the earlier Will dated 2.1.1989. This argument of the plaintiff is
therefore rejected.
8. In view of the above discussion, and applying the
principles contained in Order XII Rule 6 CPC by taking the contents
of the plaint as correct along with the documents filed, it is seen that
there is no legal cause of action for the plaintiff to seek rights with
respect to the first three properties which are stated in para 3 of the
plaint and only with respect to which properties reliefs are prayed in
the suit.
9. Dismissed.
JANUARY 31, 2018 VALMIKI J. MEHTA, J
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