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2011 Supreme(Del) 111
IN THE HIGH COURT OF DELHI AT NEW DELHI
JUSTICE MOOL CHAND GARG
RAJIV BAHL & ORS. - Appellants
Versus
STATE & ORS. - Respondents
FAO.No.327/2007
Decided on : 25.01.2011
Mr. Akshay Makhija, Adv.
Mr.Prashant Bhushan with Ms.Harsh Lata, Mr.P.K.Jain and Mr.Vipul Jain, Advs. for Respondent No.2
Mr.Kishore M.Gajaria, Mr.Rajiv Shukla and Piyush Sachdeva, Adv. for Respondent No.3
Headnote:A) Succession Act, 1925, Section 63:- Where the respondents have proved the codicil in respect of the will proved as per the provisions with the evidence of two witnesses attesting it, their codicil excluding the succession of the son settled abroad and suffering from cancer who has no intention of returning from abroad is granted as probate proceedings. Appeal against the District Judge is dismissed. Contention of the appellant wherein the word codicil is excluded in Section 63, and hence their codicil be accepted
even though the attesting witness is not proved is rejected.
1. The present appeal arises out of a judgment dated 13.05.2007 delivered by the Additional District Judge, Delhi in Probate Case No.65/2006, whereby the probate has been granted in favour of the respondent of the Will dated 12.08.1986 (Ex.P-1) and the Codicil dated 03.07.1991 (Ex.P-2). By the impugned order the Additional District Judge has disbelieved the Codicil dated 03.07.1991 (Ex.OW1/4) of the Will relied upon by the appellants holding that the said Codicil was not a genuine Codicil as propounded by the appellants.
2. Appellants are claiming succession of the property left by Smt.Ram Piari on the basis of the Will (Ex.P-1) and the Codicil to the said Will dated 03.07.1991 (Ex.OW1/4), whereas the respondents are relying upon the Will dated 12.08.1996 and Codicil dated 03.07.1991 (Ex.P-2).
3. Smt. Ram Piari, the Executrix, died on 6th October, 1994. She had three sons, namely, S/Shri Rajneesh Bahl, Ashok Bahl and Dinesh Bahl. Shri Dinesh Bahl pre-deceased Smt. Ram Piari and the appellants herein are the legal heirs of Shri Dinesh Bahl. They are residing abroad. Shri Rajneesh Bahl died during the pendency of the proceedings before the trial court.
4. The estate of Smt. Ram Piari comprises of property bearing No. 14, Kautalya Marg, Chanakyapuri, New Delhi and certain other movables.
5. Smt. Ram Piari executed a Will dated 12.08.1996, whereby she bequeathed the rear portion of the house at Kautalya Marg to Shri Rajneesh Bahl and the front portion jointly to S/Shri Ashok Bahl and Dinesh Bahl. All movables were divided in equal shares amongst the three sons. Shri Ashok Bahl was appointed the Executor of the said Will. The said Will further provided that in the event of any of her sons pre-deceasing her, his share shall go to the son or sons of the pre-deceased son and in case there is no male heir, then the share would be divided amongst the other living sons in equal shares.
6. There is no dispute amongst the parties insofar as the execution of Will dated 12.08.1996 Ex.P-1 is concerned. The dispute arises on account of Sh.Rajneesh Bahl, respondent, propounding the Codicil Ex.P-2. The Codicil Ex.P-2 is attested by two witnesses and is in original. The appellants have propounded the Codicil Ex.OW1/4, which is not the original copy. According to them, this Codicil bears the endorsement in original of late Smt.Ram Piari, who addressed the said endorsement along with the Codicil to their father Sh.Dinesh Bahl. 6. As per Codicil (Ex.P-2) Shri Dinesh Bahl has been excluded completely from the estate of Smt. Ram Piari and the entire front portion of Kautalya Marg property has been bequeathed to Sh.Ashok Bahl. Consequently, the appellants are now not entitled to any share of the property in question. Further all other assets have been divided equally between S/Shri Rajneesh Bahl and Ashok Bahl.
7. Shri Dinesh Bahl is purportedly excluded as he was suffering from cancer and expressed a desire not to inherit the Kautalya Marg house as also that his family is well-settled and is not likely to return to the country.
8. In the Codicil Ex.OW1/4, on the other hand, the bequest made to Sh.Dinesh Bahl in the Will dated 12.08.1986 has been transferred to his son, Sh.Rajiv Bahl on account of poor health of Sh.Dinesh Bahl i.e. the front portion stands bequeathed to S/Shri Ashok Bahl and Rajiv Bahl. All other assets were divided equally amongst S/Shri Rajneesh Bahl, Ashok Bahl and Rajiv Bahl in three equal shares.
9. On the document Ex.OW1/4, there is a handwritten note of Smt.Ram Piari stating “Dinesh Darling, this is the Codicil which I have signed and witnessed and which Ashok tells he sent to you. I hope it is alright with you. With lots of love, yours affectionately, Mummy”.
10. The appellants have relied upon another letter stated to have been written by late Sh.Dinesh Bahl to her mother Ex.PW2/RX acknowledging the receipt of her letter appended on Ex.OW1/4.
11. It is the case of the appellants that the Codicil Ex.OW1/4 is
