Delhi High Court
Smt Rekha Khosla vs Smt Veena Devasher on 22 April, 2025
Author: Subramonium Prasad
Bench: Subramonium Prasad
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 22nd APRIL, 2025
IN THE MATTER OF:
+ CS(OS) 116/2016 & CC 34/2017
SMT REKHA KHOSLA .....Plaintiff
Through: Mr. M. Dutta, Sr. Advocate along
with Mr. Sumeher Bajaj, Advocate.
versus
SMT VEENA DEVASHER .....Defendant
Through: Mr. Sunil Agarwal, Advocate.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. The Plaintiff has filed the present Suit seeking a decree of partition,
declaration, and compensation with respect to the immovable property,
described as - 109, Sunder Nagar, New Delhi - 110003, admeasuring an
area of 748.40 square meters, comprising of - a first floor, a barsati floor, a
garage on the ground floor, two servant quarters over the garage at the
ground floor (hereinafter referred as "Suit Property").
2. Shorn of unnecessary details, the facts leading to the present Suit are
as follows:-
i. The Plaintiff and the Defendant are sisters, and daughters of late Mr.
Mohinder Nath Bery, husband of late Mrs. Leela Bery. Mr. Mohinder
Nath Bery was the Lessee of the Suit Property. Late Mr. Mohinder
Nath Bery before his demise on 21.12.2003, executed a Will dated
10.11.2003 bequeathing the entire Suit Property to his wife, Mrs.
Leela Bery. For the purpose of mutating the Suit Property in favour of
their now deceased mother, the Plaintiff executed an affidavit,
acknowledging the existence of the Will dated 10.11.2003 and
approving the mutation of the Suit Property in favour of their now
deceased mother.
ii. Late Mrs. Leela Bery before her demise on 06.02.2013 also executed
a Will dated 10.08.2004 bequeathing the Suit Property in favour of the
Defendant. It is pertinent to note that both of these Wills were
unregistered.
iii. It is this unregistered Will dated 10.08.2004 through which the
bequeathment of the Suit Property to the Defendant has been executed
that is being contested by the Plaintiff in the present Suit.
3. This Court after perusal of the material on record framed the
following issues vide Order dated 24.07.2018:-
i. Whether the Defendant is entitled to rendition of accounts and
consequential money decree as sought in the counter claim?
ii. Whether late Sh. M.N. Bery executed a valid and lawful will
dated 10.11.2003?
iii. Whether Smt. Leela Bery executed a valid and lawful will
dated 10.08.2004?
iv. Whether the suit of Plaintiff is not properly valued for the
purpose of court fees?
v. Whether the Plaintiff is entitled to a preliminary and final
decree of partition of the subject property, as prayed?
vi. Whether the Plaintiff is entitled to a decree of mandatory
injunction, as prayed?
4. The Plaintiff was examined as PW-1. She tendered her evidence by
way of Affidavit dated 14.08.2018 which was marked as Ex. PW1/A. PW-1
was cross examined by the Counsel for the Defendant on 05.10.2018.
Further, Mr. Karan Khosla, son of Plaintiff was examined as PW-2. PW-2
tendered evidence by way of Affidavit dated 30.10.2018 which was marked
as Ex. PW2/A. PW-2 was cross examined by Counsel for the Defendant on
15.01.2019.
5. The Affidavit executed by the Plaintiff, acknowledging the existence
of the unregistered Will dated 10.11.2003 is marked as Ex. PW1/1. The
letter dated 22.09.2014 tendered to the South Delhi Municipal Corporation
informing the recipient authority of the demise of the deponent's mother is
marked as Ex. PW1/2.
6. The Defendant was examined as DW-1 who tendered evidence by
way of Affidavit dated 12.02.2019 which was marked as Ex. DW1/A. DW-1
was cross examined by the Counsel for the Plaintiff on 12.03.2019, and
further on 27.03.2019. Mr. Rakesh Bhardwaj, the Advocate who drafted both
the Wills in question, was examined as DW-2. DW-2 tendered his evidence
by way of Affidavit dated 11.02.2019, which was marked as Ex. DW2/A.
DW-2 was examined by the Counsel for the Plaintiff on 29.04.2019.
7. The original Will dated 10.11.2003 left behind by the father of the
parties is marked as Ex. DW1/1. The original Will dated 10.08.2004 left by
the mother of the parties is marked as Ex. DW1/2. The signed formats of the
No-Objection and affidavit for mutation, duly signed by the Plaintiff are
marked as Ex. DW1/3, and Ex. DW1/4, respectively. The recording of the
conversation contained in CD, along with its English transcript is on record
and is Ex. DW1/5, and Ex. DW1/6, respectively.
8. Learned Counsel for the Plaintiff submits that the unregistered Will(s)
executed by her deceased parents and more particularly the Will dated
10.08.2004 executed by their deceased mother, is concocted, fabricated, and
unworthy of any reliance. It has been presented, with the sole intent to deny
the Plaintiff her lawful and legitimate equal share in the Suit Property. The
Plaintiff states that she had no knowledge of any purported will executed by
her parents.
9. Further, it is the case of the Plaintiff that the exclusion of the
Plaintiff's share in the Suit Property as per the unregistered Will executed by
their late mother fall within the realm of "suspicious circumstances".
10. Per contra, it is the case of the Defendant that the Wills were signed
by the respective testators in the presence of two witnesses, who had signed
as attesting witnesses at the same time as the testator.
11. Learned Counsel for the Defendant submits that the Plaintiff was
aware of the existence and contents of both the Wills. The Plaintiff even
acted upon the Will of late Mr. MN Bery and had agreed to divide the
moveable property, with the Defendant, in terms of the Will dated
10.08.2004.
12. The exclusion of the Plaintiff from the Suit Property as per Will dated
10.08.2004 is not suspicious, as it was the wish of the parents of the parties
that the house should go to the Defendant solely. The Plaintiff was thus
given larger share of 70% of the moveable properties, being the bank
accounts, fixed deposits, shares, etc. The wish of both the parents that the
Defendant should inherit the Suit Property has been admitted by the Plaintiff
during the recorded conversation with the Defendant.
13. Further, the learned Counsel for the Defendant clarifies that the
intention of both the testators that the property should be inherited solely by
the Defendant is supported by the statements made in the Will, which is, that
the Defendant and her daughters were living in the house with them; the
Defendant had lost her husband at a very young age and at the time of
making of the Wills, both the daughters of the Defendant were yet to be
married.
14. Moreover, the Defendant in their Counter Claim, seeks to claim 30%
of the moveable assets of late Mrs. Leela Bery.
15. Heard the learned Counsel for the parties and perused the material on
record.
16. The Plaintiff has tendered various judgments to substantiate their
case. The Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma
and Ors. 1958 SCC OnLine SC 31, held the following:-
"21. Apart from the suspicious circumstances to which
we have just referred, in some cases the wills
propounded disclose another infirmity. Propounders
themselves take a prominent part in the execution of
the wills which confer on them substantial benefits. If it
is shown that the propounder has taken a prominent
part in the execution of the will and has received
substantial benefit under it, that itself is generally
treated as a suspicious circumstance attending the
execution of the will and the propounder is required to
remove the said suspicion by clear and satisfactory
evidence. It is in connection with wills that present
such suspicious circumstances that decisions of
English courts often mention the test of the satisfaction
of judicial conscience. It may be that the reference to
judicial conscience in this connection is a heritage
from similar observations made by ecclesiastical
courts in England when they exercised jurisdiction with
reference to wills; but any objection to the use of the
word "conscience" in this context would, in our
opinion, be purely technical and academic, if not
pedantic. The test merely emphasizes that, in
determining the question as to whether an instrument
produced before the court is the last will of the testator,
the court is deciding a solemn question and it must be
fully satisfied that it had been validly executed by the
testator who is no longer alive.
xxx
27. In this connection it is necessary to bear in mind
that the appellant whose sons have received the said
bequests has admittedly taken a very prominent part in
bringing about the execution of the will. He has
prepared the draft and it was at his dictation that the
scribe wrote the will. Indeed on the important question
as to when and how instructions were given by the
testatrix and whether or not in preparing the draft
those instructions have been faithfully carried out, the
only evidence adduced in the case is that of the
appellant and no one else. Thus, the very important, if
not the decisive, part played by the appellant in the
execution of the will cannot at all be disputed in the
present case.
xxx
30. The same principle was emphasized by the Privy
Council in Vellasawmy Servai v. Sivaraman Servai
[(1929) LR 57 IA 96] where it was held that, where a
will is propounded by the chief beneficiary under it,
who has taken a leading part in giving instructions for
its preparation and in procuring its execution, probate
should not be granted unless the evidence removes
suspicion and clearly proves that the testator approved
the will."
17. It is the case of the Plaintiff that the deceased parents of the parties
did not discriminate, distinguish, or exhibit any form of unfairness between
their children. There was no animosity, hostility, or ill between the two
sisters. Therefore, the exclusion of the Plaintiff from the Will of their late
mother forms basis of suspicious circumstances.
18. The Defendant submits that the Supreme Court in Ved Mitra Verma v.
Dharam Deo Verma, (2014) 15 SCC 578, has held the following:-
"8. The exclusion of the other children of the testator
and the execution of the will for the sole benefit of one
of the sons i.e. the respondent, by itself, is not a
suspicious circumstance. The property being self-
acquired, it is the will of the testator that has to
prevail."
19. Further the Supreme Court in S. Sundaresa Pai &Ors. v. Sumangala T.
Pai, (2002) 1 SCC 630, has laid down the following:-
"6. It is significant to note that only the plaintiff has
questioned the will. All the defendants were supporting
the will. The High Court also found that in view of the
testimony of the attesting witness, the will had been
formally proved. Under these circumstances, we fail to
understand how the conclusion about the will being
unnatural on the basis of uneven distribution of the
assets by Indira Bai could be reached. The widowed
daughter had not questioned the will. She rather
supported it. Therefore, it could not be taken as a
circumstance to show that the will was unnatural by
observing that she was more deserving. It is a question
which lies squarely within the pure discretion of the
executant of the will. The finding that the "will is most
unnatural" cannot be sustained."
20. The said Wills were signed by the respective testators in the presence
of two witnesses, who had signed as attesting witnesses at the same time as
the testator. The attesting witness of both the Wills were called by the
Defendant to prove their due execution and attestation. DW-2, Mr. Rakesh
Bhardwaj, Advocate who had drafted both the Wills was cross examined on
his affidavit dated 09.06.2016 (Ex DW2/A), filed along with the Written
Statement of the Defendant.
21. As per the statements of DW-2, Late Mr. MN Bery had instructed him
to prepare the Will dated 10.11.2003 as per his wishes, and Late Mrs. Lela
Bery had also instructed him to prepare the Will dated 10.08.2004 as per her
wishes. The testator had executed their respective Wills in the presence of
the two attesting witnesses, while all three had signed the Wills in the
presence of each other.
22. DW-2 further stated that the respective testators were not suffering
from any disease, and were healthy. The same is enumerated in Q. 5, 16, 17
of the cross examination of DW-2 as held on 29.04.2019, which are
reproduced as under:-
"Q5 Was he suffering from any illness at that time?
Ans. Some old age problem but nothing specific, no
disease as such.
xxx
Q16 You have in para 3 stated that Shri M.N. Bery was
in good and sound health. What was the basis to make
such statement?
Ans. He was mentally alert, and he used to himself call
me on phone and I had no apprehension and he was
visibly appeared very healthy.
Q17 Was Mrs. Leela Bery suffering from any illness
around the time of execution of her Will?
Ans. She was very healthy and alert."
23. The Plaintiff admitted the signatures of both the testators appearing on
the Wills which is enumerated in Q. No. 2, 3, 4, and 5 in her cross
examination as PW-1, as recorded on 05.10.2018, which are reproduced as
under:-
"Q2 Have you seen your parents writing and signing?
Ans. Yes.
Q3 You are able to identify their signatures?
Ans. Yes.
Q4 Please see the document i.e. Will dated 10.11.2003
at pages 1 to 3 in Vol. IIIA of the suit record. I put it to
you that this is signed by Mr. M.N. Bery (Mahender
Nath Bery) (the document shown to the witness is
given the number Ex. PW1/D1 for the purpose of
identification at point A, B and C)?
Ans. It appears to be his signatures.
Q5 Please see the document i.e. Will dated 10.08.2004
at pages 4 to 6 in Vol. Ill-A of the suit record. I put it to
you that this is signed by Mrs. Leela Bery (the
document shown to the witness is given the number
Ex. PW1/D2 for the purpose of identification at point
A, B and C)?
Ans. It appears to be her signatures. There is slight
difference in one of the "L"."
24. On perusal of the afore-mentioned statements of DW-2, and PW-1, it
can be established that the Wills were not fabricated. DW-2 is not an
interested witness and therefore, the testimony of DW-2 carries immense
weight in proving the legitimacy of the Wills. Further, the Plaintiff herself
accedes to the validity of the signatures of the testators on the Wills. There is
no material to rebut the above-mentioned statements and therefore this Court
is of the opinion that the Wills dated 10.11.2003, and 10.08.2004 are
genuine, as against the contentions of the Plaintiff. Therefore, Issue No. (ii)
and (iii) are decided in favour of the Defendant, and against the Plaintiff.
25. In PW-1/1, the Plaintiff has accepted the Will dated 10.11.2003. The
relevant portion of the affidavit accepting the execution of the Will dated
10.11.2003 whereby the father of the Plaintiff and the Defendant bequeathed
the Suit Property to the mother of the Plaintiff and the Defendant reads as
under:-
"6. That the deceased has left behind a "Will" dated 10
November, 2003, bequeathing the aforesaid property in
favour of Shrimati Lela Bery. Which is an unregistered
one, the "Will" is genuine and I have no objection if
the same is acted upon."
26. In view of the above, the Will dated 10.11.2003 therefore is not in
question at all since it is admitted by the Plaintiff. The challenge is therefore
limited to the Will dated 10.08.2004 wherein the mother has bequeathed the
Suit Property to the Defendant.
27. As per the cross examination of the Defendant, the mother chose to
exclude the Plaintiff and bequeath the Suit Property in favour of the
Defendant because the Defendant was not financially well off as compared
to the Plaintiff who is employed with the Ministry of Tourism, Government
of India and was deputed in Los Angeles, California, U.S.A. The Plaintiff
later moved to Paris to carry out her duties. Moreover, the Defendant had
two daughters to marry at the time of making of the Will. The same is
demonstrated in Q.49-50 of the cross examination of DW-1 held on
12.03.2019, which are reproduced as under:-
"Q49. Did you ask your mother what were the reasons
that prompted her to choose you over and in exclusion
of the Plaintiff?
Ans. Yes.
Q50. What were they?
Ans. She had said that because I was not financially
well off and I had two daughters to marry and that the
Plaintiff had agreed to what she was making in the
Will. "
28. The deceased father of the parties vide Will dated 10.11.2003 stated
his wish as follows:-
"It is my desire that the above-mentioned house 109,
Sunder Nagar, New Delhi, may be given to my
daughter Smt. Veena Devasher, my wife in her Will.
This is because Smt Veena Devasher has to marry her
two daughters Rohini and Mandakini, who have been
deprived of the support of their father Late Sh. Vijay
Devasher, who unfortunately expired when these girls
(Rohini and Mandakini) were very young."
29. The deceased mother, following the wishes of her late husband re-
instated the same vide Will dated 10.08.2004. The relevant extract are as
follows:-
"It was the desire of my late husband Mr. M.N.Bery
and it is my desire as well that the above-mentioned
house 109, Sunder Nagar, New Delhi, may be given to
my daughter Smt. Veena Devasher. This is because Smt
Veena Devasher has to marry her two daughters
Rohini and Mandakini, who have been deprived of the
support of their father Late Sh. Vijay Devasher, who
unfortunately expired when these girls (Rohini and
Mandakini) were very young. I have movable assets in
the shape of bank accounts. Fixed deposits. National
Saving Certificates, Government Securities and other
deposits with various Companies and other assets of
whatever character and wherever situated, (some of
which I have on my own and some of them my late
husband had bequeathed in his Will m my favour)
including future assets, the same shall be devolved in
the name of my daughters Smt. Rekha Khosla and
Veena Devasher in the ratio of 70% and 30%
absolutely and forever, I hereby bequeath these bank
accounts and other above stated assets in favour of my
daughters namely Smt. Rekha Khosla and Veena
Devasher in the ratio as stated above, in case some
cash belonging to me is found after my death, the same
shall be distributed amongst my said daughters in the
above mentioned ratio."
30. Section 63 of the Indian Succession Act reads as under:-
"63. Execution of unprivileged Wills.-
Every testator, not being a soldier employed in an
expedition or engaged in actual warfare, or an
airman so employed or engaged, or a mariner at
sea, shall execute his Will according to the following
rules:--
a. The testator shall sign or shall affix his mark to
the Will, or it shall be signed by some other
person in his presence and by his direction.
b. The signature or mark of the testator, or the
signature of the person signing for him, shall be
so placed that it shall appear that it was intended
thereby to give effect to the writing as a Will.
c. The Will shall be attested by two or more
witnesses, each of whom has seen the testator sign
or affix his mark to the Will or has seen some
other person sign the Will, in the presence and by
the direction of the testator, or has received from
the testator a personal acknowledgement of his
signature or mark, or the signature of such other
person; and each of the witnesses shall sign the
Will in the presence of the testator, but it shall not
be necessary that more than one witness be
present at the same time, and no particular form
of attestation shall be necessary."
31. Section 68 & Section 114 of the Indian Evidence Act reads as under:-
"68. Proof of execution of document required by
law to be attested.
If a document is required by law to be attested, it
shall not be used as evidence until one attesting
witness at least has been called for the purpose of
proving its execution, if there be an attesting
witness alive, and subject to the process of the
Court and capable of giving evidence :
Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a Will, which has been
registered in accordance with the provisions of the
Indian Registration Act, 1908 (XVI of 1908),
unless its execution by the person by whom it
purports to have been executed is specifically
denied.
xxx
114. Court may presume existence of certain
facts.
The Court may presume the existence of any fact
which it thinks likely to have happened, regard
being had to the common course of natural events,
human conduct and public and private business,
in their relation to the facts of the particular case.
The Court may presume--
(a) that a man who is in the possession of stolen
goods soon after the theft is either the thief or has
received the goods knowing them to be stolen,
unless he can account for his possession;
(b) that an accomplice is unworthy of credit,
unless he is corroborated in material particulars;
(c) that a bill of exchange, accepted or endorsed,
was accepted or endorsed for good consideration;
(d) that a thing or state of things which has been
shown to be in existence within a period shorter
than that within which such things or state of
things usually cease to exist, is still in existence;
(e) that judicial and official acts have been
regularly performed;
(f) that the common course of business has been
followed in particular cases;
(g) that evidence which could be and is not
produced would, if produced, be unfavourable to
the person who withholds it;
(h) that if a man refuses to answer a question
which he is not compelled to answer by law, the
answer, if given, would be unfavourable to him;
(i) that when a document creating an obligation is
in the hands of the obligor, the obligation has
been discharged.
But the Court shall also have regard to such facts
as the following, in considering whether such
maxims do or do not apply to the particular case
before it--
as to illustration (a)--A shop-keeper has in his till
a marked rupee soon after it was stolen, and
cannot account for its possession specifically, but
is continually receiving rupees in the course of his
business;
as to illustration (b)--A, a person of the highest
character, is tried for causing a man's death by an
act of negligence in arranging certain machinery.
B, a person of equally good character, who also
took part in the arrangement, describes precisely
what was done, and admits and explains the
common carelessness of A and himself;
as to illustration (b)--a crime is committed by
several persons. A, B and C, three of the
criminals, are captured on the spot and kept apart
from each other. Each gives an account of the
crime implicating D, and the accounts
corroborate each other in such a manner as to
render previous concert highly improbable;
as to illustration (c)--A, the drawer of a bill of
exchange, was a man of business. B, the acceptor
was a young and ignorant person, completely
under A's influence.
as to illustration (d)--it is proved that a river ran
in a certain course five years ago, but it is known
that there have been floods since that time which
might change its course;
as to illustration (e)--a judicial act, the
regularity of which is in question, was performed
under exceptional circumstances;
as to illustration (f)--the question is whether a
letter was received. It is shown to have been
posted, but the usual course of the post was
interrupted by disturbances;
as to illustration (g)--a man refuses to produce a
document which would bear on a contract of
small importance on which he is sued, but which
might also injure the feelings and reputation of his
family;
as to illustration (h)--a man refuses to answer a
question which he is not compelled by law to
answer, but the answer to it might cause loss to
him in matters unconnected with the matter in
relation to which it is asked;
as to illustration (i)--a bond is in possession of
the obligor, but the circumstances of the case are
such that he may have stolen it."
(emphasis supplied)
32. The attesting witnesses have withstood the cross-examination of the
Plaintiff. They have deposed that the testator was of sound mind. The
Advocate deposed that the testator has signed the Will in the presence of the
attesting witnesses and the attesting witnesses have seen the testator sign the
Will. The witnesses therefore proved the Will in accordance with Section 63
of the Indian Succession Act and Section 68 of the Indian Evidence Act.
33. The Will disclosed the reasons as to why the property has been
bequeathed in favour of the Defendant. In fact the father had expressed a
desire that the property must go to the Defendant and the mother had only
carried out the wishes of the father. The reasons being very clear that the
Defendant was a widow and had two daughters to marry. She required more
support at the time of making of the Will as compared to the Plaintiff who
was happily married and well placed in life.
34. The Apex Court in Anil Kak v. Kumari Sharada Raje, 2008 (7) SCC
695, has observed as under:-
"51. Yet again in Niranjan Umeshchandra Joshi v.
Mrudula Jyoti Rao [(2006) 13 SCC 433 : (2006) 14
Scale 186] this Court held : (SCC p. 447, paras 32-33)
"32. Section 63 of the Succession Act lays down the
mode and manner of execution of an unprivileged
will. Section 68 of the Evidence Act postulates the
mode and manner of proof of execution of document
which is required by law to be attested. It in
unequivocal terms states that execution of will must
be proved at least by one attesting witness, if an
attesting witness is alive subject to the process of the
court and capable of giving evidence. A will is to
prove what is loosely called as primary evidence,
except where proof is permitted by leading
secondary evidence. Unlike other documents, proof
of execution of any other document under the Act
would not be sufficient as in terms of Section 68 of
the Evidence Act, execution must be proved at least
by one of the attesting witnesses. While making
attestation, there must be an animus attestandi, on
the part of the attesting witness, meaning thereby, he
must intend to attest and extrinsic evidence on this
point is receivable.
33. The burden of proof that the will has been validly
executed and is a genuine document is on the
propounder. The propounder is also required to
prove that the testator has signed the will and that
he had put his signature out of his own free will
having a sound disposition of mind and understood
the nature and effect thereof. If sufficient evidence in
this behalf is brought on record, the onus of the
propounder may be held to have been discharged.
But, the onus would be on the applicant to remove
the suspicion by leading sufficient and cogent
evidence if there exists any. In the case of proof of
will, a signature of a testator alone would not prove
the execution thereof, if his mind may appear to be
very feeble and debilitated. However, if a defence of
fraud, coercion or undue influence is raised, the
burden would be on the caveator. (See Madhukar D.
Shende v. Tarabai Aba Shedage [(2002) 2 SCC 85]
and Sridevi v. Jayaraja Shetty [(2005) 2 SCC 784] .)
Subject to above, proof of a will does not ordinarily
differ from that of proving any other document."
(See also Adivekka v. Hanamavva Kom Venkatesh
[(2007) 7 SCC 91].)"
35. It is not uncommon for the parents to exclude one child in favour of
another if there are valid circumstances. The Apex Court in Ved Mitra
Verma v. Dharam Deo Verma, (2014) 15 SCC 578, has observed as under:-
"8. The exclusion of the other children of the testator
and the execution of the will for the sole benefit of one
of the sons i.e. the respondent, by itself, is not a
suspicious circumstance. The property being self-
acquired, it is the will of the testator that has to
prevail."
36. The Plaintiff has not brought out any circumstances which points out
that the testator was of unsound mind or was completely under the influence
of the Defendant. This Court has meticulously gone through the deposition
of the Plaintiff, the Defendant and the attesting witness and is of the opinion
that no suspicious circumstances have been brought out by the Plaintiff.
This Court is of the opinion that without there being any material to prove
otherwise which would persuade this Court to come to a contrary
conclusion, this Court has to keep the last word of the testator.
37. On perusal of the relevant extract of both the Wills and the relevant
applicable precedents, this Court is of the opinion that the contention of the
Plaintiff regarding suspicious circumstances of excluding the Plaintiff from
the share of the Suit Property is without merits. The rationale behind leaving
the Suit Property to the Defendant can be clearly observed by the wishes of
the deceased parents as per the Wills. The bequeathment of the Suit Property
is as per the wishes of the testator, and there is no scope of the Plaintiff to
cast doubt or claim what was not bequeathed upon her qua the Will in case
of an acquired property. As per these findings, Issue No. (v) and (vi) are
decided against the Plaintiff and in favour of the Defendant.
38. This Courts holds that Will dated 10.11.2003, as well as Will dated
10.08.2004 are legitimate. The contents of the Will are correct, and the same
are to be followed by the parties in the present Suit.
39. As in regards with Issue No. (iv), no substantial arguments have been
advanced by the Plaintiff and therefore this Court restricts itself to
adjudicate upon the same.
40. The Counter Claim filed by the Defendant only ascertains an
estimated amount of ₹15,00,000/-. The Defendant states that the amount
claimed is merely an estimated amount and not certain. Therefore, this Court
is not inclined to adjudicate the said Counter-Claim without certainty of
facts. Nevertheless, the moveable assets of the demised mother are to be
divided as per the covenants of the Will dated 10.08.2004. Thus, Issue No.
(i) is decided in spirit of the foregoing observations.
41. The Court grants leave and liberty to the Defendant to approach the
appropriate Court after ascertainment of the said counter-claim if any
dispute arises regarding the same.
42. The present Suit is disposed of, along with pending application(s), if
any.
SUBRAMONIUM PRASAD, J
APRIL 22, 2025
hsk/mt
