CM No. 5184/2012 (Exemption) Allowed subject to just exceptions. FAO(OS) No. 124/2012 & CM No. 5183/2012 (Stay)

1. This is an appeal directed against a judgment of the learned single Judge dated 22.02.2012, whereby probate has been granted qua Will (Ex. PW1/1)dated 05.02.1991 executed by late Sh. Brij Bhushan Jolly in favour of respondent no. 2. Since it is a substantive appeal against a final judgment, we had called for the original record filed before the learned Single Judge. In support of the appeal, submissions were advanced by Mr. Raman Kapur, Sr. Advocate, instructed by Mr Dhiraj Sachdeva. Before we deal with the submissions of Mr Raman Kapur, it may be relevant to sketch out background facts and circumstances, which gave rise to the original probate proceedings.

FACTS

2. It appears that late Sh. Brij Bhushan Jolly had purchased a plot bearing No. J-38 situate at South Extension Part-I, New Delhi (hereinafter referred to as the South Extension property). On the said plot, construction was carried out. The super structure consisted of the ground, first and barsati floors. The first floor was sold in 1984 to one Sh. O.P. Hasija, while the barsati floor was sold in 1989, to one Mrs Mala Sehgal.

3. It is not in dispute that the appellant had filed a partition suit in which late Sh. Brij Bhushan Jolly, i.e., father was arrayed as a party. Evidently proceedings were also initiated by the father, i.e., late Sh. Brij Bhushan Jolly, against the appellant. The inter se proceedings culminated in a compromise deed dated 06.01.1989 (Mark A) (in short the Compromise Deed) being executed between the appellant and late Sh. Brij Bhushan Jolly. By virtue of the said compromise deed, both the appellant as well as late Sh. Brij Bhushan Jolly agreed: (i) to withdraw civil and criminal proceedings filed against each other; (ii) that the appellant or his legal heirs will have no claim over the movable or immovable property of late Sh. Brij Bhushan Jolly; (iii) similarly, late Sh. Brij Bhushan Jolly or his legal heirs would have no claim over the movable or immovable property of the appellant; and (iv) lastly, the appellant agreed to hand over vacant possession of the second floor of the super structure built in the South Extension property. There was also a declaration made to the effect that what was included in the compromise deed were “self-acquired properties” of late Sh. Brij Bhushan Jolly.

3.1 The impugned Will (Ex. PW1/1) was executed by late Sh. Brij Bhushan Jolly, on 05.02.1991. The Will (Ex. PW1/1) has been attested by respondent no. 3, (the sister of the appellant) and one Sh. A.K. Bajpai, an advocate, who apparently was also instrumental in helping late Sh. Brij Bhushan Jolly in drafting the Will.

3.2 Importantly, in paragraphs 3 and 7 of the Will (Ex. PW1/1) the executant, i.e., late Sh. Brij Bhushan Jolly has set out reasons for disinheriting the appellant, and what compelled him to sell the second floor (i.e., the barsati floor) of the South Extension property. We propose to address this aspect of the matter in the latter part of our judgment.

3.3 The executant of the Will died on 21.01.1995. Consequently, a petition under Section 276 of the Indian Succession Act, 1995 was instituted in this Court by respondent no. 2 alongwith Smt. Nirmal Jolly, the wife of the executant and the mother of the appellant, respondent nos. 2 and 3. These proceedings were registered as Testamentary Case No. 21/1995. The details of the estate owned by late Sh. Brij Bhushan Jolly were set out in schedule “A” of the petition. The particulars as set out in Schedule “A” are as follows:

“S. No. Particulars Amount

1. Immovable property bearing No. J-38, New Delhi South Extension Part – I, New Delhi Rs.10,00,000/-

2. Movable property Nil/- ”

3.4 In the aforementioned petition the details of the legal heirs of late Sh. Brij Bhushan Jolly, other than petitioners, were set out in paragraph 2, which included the appellant, respondent