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2011 DIGILAW 314 (DEL)

Sudhir Kumar Kohli v. State

2011-03-07

MOOL CHAND GARG

body2011
ORDER 1. This is the second call. Nobody has appeared for the contesting respondent. 2. Arguments heard. 3. This is an appeal arising out of the order dated 5.5.2009 passed by the learned ADJ whereby while considering the probate petition filed by the appellant (P.C. No. 183/2007) after holding that the Will in question relied upon by the appellant executed by the deceased testator i.e. his father was duly executed and valid in law, the learned ADJ refused to grant probate to the appellant on the ground that since part of the property in question was already gifted to him prior to the death of deceased testator, the Will become irrelevant and, therefore, the probate could not be granted. The relevant discussion by the learned ADJ in this regard reads as under: “Issue Nos. 3 and 4— Mere proving of the Will itself is not sufficient to enforce the same and the Court has to find out whether the duly executed and last testament of the deceased can be given effect to or not. Petitioner has admitted that his father had executed a gift deed dated 27.5.2004 Mark-A (original of which admittedly is in possession of petitioner as per his cross-examination) in respect of entire first floor/terrace in his favour and he sold that portion to respondent Nos. 2 and 3 by way of registered sale deed dated 1.9.2005 which is Ex. PW1/R-1. Petitioner is unable to explain what was the reason of execution of the gift deed of first floor/terrace in his favour by the deceased who had already executed Will in respect of entire property. This prima facie shows that the deceased had changed his mind and was not interested to get his Will Ex. PW1/1 enforced. Giving of first floor/terrace rights to the petitioner by the deceased by way of gift deed Mark-A point out that version of respondent regarding distribution of the property by the deceased himself i.e. half ground floor each to respondents and first floor to petitioner appears to be correct. Though respondent has failed to prove the existence of subsequent Will of year 2004 but from execution of the gift deed and subsequent sale deed, an indication comes on record that deceased had intention not to rely upon his original Will. If Will Ex. PW1/1 is to be relied upon and looked into, then other documents i.e. Mark-A and Ex. Though respondent has failed to prove the existence of subsequent Will of year 2004 but from execution of the gift deed and subsequent sale deed, an indication comes on record that deceased had intention not to rely upon his original Will. If Will Ex. PW1/1 is to be relied upon and looked into, then other documents i.e. Mark-A and Ex. PW1/1 losses its significance and validity and that would create another absurd position. When Will was in favour of the petitioner then there was no necessity to execute the gift deed by the deceased and further sale deed by the petitioner. Supreme Court in case of Chiranjilal Shirlal Goenka v. Jasjit Singh, (1993) 2 SCC 507 held that probate Court has not to decide the question of title and ownership of the deceased qua the bequeathed property. However, according to Delhi High Court in case Surender Patrick Lall v. State, 118 (2005) DLT 647 still on limited point the question of title can be considered. It is held by High Court that where the testator had lost right to a property, a Will in respect to the said property would convey nothing and if nothing is conveyed under a Will due to the fact that the testator has no right, a Court may decline the probate. After executing the gift deed Mark-A on 27.5.2004, deceased had lost his entire rights and interest in respect of first floor/terrace of the property in question and in fact had transferred its title in favour of the petitioner. Petitioner admittedly had sold that first floor/terrace to both respondent Nos. 2 and 3 on 1.9.2005 by way of registered sale deed Ex. PW1/R-1. When petitioner himself had after acquiring the right and title of the first floor/terrace of the property in question which once belonged to the deceased sold the same then he cannot be permitted to recover the same in the garb of Will of his father Ex. PW1/1. Petitioner on one hand sold the property after taking sale consideration from respondents and on the other hand is again putting his claim over the same on basis of Will which is not permissible in the eyes of law. PW1/1. Petitioner on one hand sold the property after taking sale consideration from respondents and on the other hand is again putting his claim over the same on basis of Will which is not permissible in the eyes of law. The Will in question would not convey anything in favour of the petitioner as deceased had lost his right and title over the property especially first floor/terrace rights and thus Will appears to have become absurd and unenforceable. Such type of Will cannot be enforced and no relief on it can be granted. Petitioner has also alleged that both the respondents had resold the property to him by executing sale deed but no such sale deed is proved on record. Even it is not disclosed on which date, that alleged repurchase took place. If for the sake of argument, it is presumed that any such repurchase took place and petitioner again become owner of the first floor/terrace then in that situation also no question of enforcing the Will arises because it would again become absurd position that owner of the property having registered sale deed in his favour is seeking title of the same on the basis of another document i.e. the Will. I am also of the view that Will in question even partially cannot be enforced. Will has to be probated as a whole and not in parts. The Will cannot be considered even for ground floor by ignoring the first floor/terrace of the property in question. Accordingly, the entire Will has to be declared as unenforceable. Hence in view of the above discussions, it is held that present petition for grant of relief of probate is not maintainable and Will in question cannot be given any effect. These two issues are decided in favour of the respondent No. 3 and against the petitioner.” 4. Learned Counsel for the appellant submits that the view of the learned ADJ is not sustainable inasmuch as it is well settled law that the functions of a probate Court are to see that the Will executed by the testator was actually executed by him in a sound disposing state of mind without coercion or undue influence and the same was duly attested. It was, therefore, not competent for the probate Court to determine whether the testator had or had not the authority to dispose of the suit properties which he purported to have bequeathed by his Will. The probate Court is also not competent to determine the question of title to the suit properties nor will it go into the question whether the suit properties bequeathed by the Will were joint ancestral properties or acquired properties of the testator. 5. To make these submission, the appellant has relied upon a judgment of the Supreme Court delivered in the case of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon and Ors., IX (2007) SLT 419= AIR 2008 SC 306 . Learned Counsel submits that in this case while a gift deed had been executed by the deceased testator in favour of the appellant before his death but that pertains to only first floor and the terrace. The ground floor of the property is still intact and, therefore, the probate of the Will was necessary to deal with the portion of the property which was not gifted or which was given to the appellant in the manner as it has been noticed by the trial Court. 6. Thus, for that reason as well as for the reasons stated above i.e. the proposition of law, the trial Court once came to a conclusion that the Will was duly executed and attested by the witnesses named therein had no other option but to grant the probate in accordance with law so that the beneficiary under the Will would have enjoyed the property whatever it was left to be enjoyed; may be whole of it or even a part of it. 7. I find the submissions made by the learned Counsel for the appellant in order and being supported by the judgments delivered by the Apex Court, one of which has been quoted above. 8. Nobody has appeared for the contesting respondent and, therefore, no assistance has come forward from the said respondent whereas Counsel for respondent No. 3 has nothing to say in the matter. 9. In these circumstances, the appeal filed by the appellant is allowed and accordingly, probate petition filed by him is also allowed. Subject to complying with other formalities, letters of administration with respect to the Will dated 10.11.1995 Ex. PW1/1 executed by Late Sh. 9. In these circumstances, the appeal filed by the appellant is allowed and accordingly, probate petition filed by him is also allowed. Subject to complying with other formalities, letters of administration with respect to the Will dated 10.11.1995 Ex. PW1/1 executed by Late Sh. Vidhya Sagar Kohli is granted to the appellant with Will annexed. 10. Copy of the order along with TCR be sent to the trial Court who will deal with the matter in accordance with law. 11. Appellant to appear before the District Judge-I on 15.3.2011. 12. No costs. Appeal allowed.