Back
2012 Supreme(Del) 446
HIGH COURT OF DELHI
REVA KHETRAPAL, J.
Krishan Dass Gupta & Another
Versus
State & Others
TEST CAS. 44 OF 1999 & 51 OF 2004
Decided on : 16-02-2012
For the Petitioners:Prakash Gautam, S.N. Gupta and S.S. Shukla, Advocates.
For the Respondents:R2, R4, R6 & R7 - Jagjit Singh, R3 - S.N. Gupta & S.S. Shukla, Prakash Gautam, Advocates.
Headnote:
The court held that the will dated 06.03.1992 was valid and the will dated 21.09.1998 was not valid. The court found that the will dated 21.09.1998 was executed under suspicious circumstances, including the fact that it was executed just 13 days before the testator's death, that it was registered three months after the testator's death, and that it was not signed by any family member. The court also found that the testator was not in a sound disposing mind at the time of the execution of the will dated 21.09.1998. The court granted Letters of Administration in respect of the will dated 06.03.1992 to the petitioner.
Fact of the Case:
The deceased testator had executed two wills, one dated 06.03.1992 and the other dated 21.09.1998. The first will was executed by the testator when he was in a sound disposing mind and was signed by all the family members. The second will was executed just 13 days before the testator's death and was not signed by any family member. The testator was not in a sound disposing mind at the time of the execution of the second will.
Finding of the Court:
The court found that the will dated 06.03.1992 was valid and the will dated 21.09.1998 was not valid. The court found that the will dated 21.09.1998 was executed under suspicious circumstances, including the fact that it was executed just 13 days before the testator's death, that it was registered three months after the testator's death, and that it was not signed by any family member. The court also found that the testator was not in a sound disposing mind at the time of the execution of the will dated 21.09.1998.
Issues: 1. Whether the two Wills dated 06.03.1992 and 21.09.1998 which have been set up by petitioner and respondent No.3 respectively are valid Wills? 2. Whether the present petition is not maintainable in view of Section 278(1)(d) of the Indian Succession Act, 1925? 3. Whether the present petition is not maintainable in view of Section 235 of Indian Succession Act? 4. Whether the petition has been properly verified in the manner as provided in Section 281 of Indian Succession Act, 1925? 5. Whether the Will dated 6.3.1992 has been revoked/cancelled by the testator Shri Bhiku Ram Gupta by his subsequent Will dated 21.9.1998? 6. Whether the petitioner is entitled for Letter of Administration in respect of Will dated 6.3.1992? 7. Whether the family settlement dated 2nd October, 1991 is valid and if so its effect? 8. Relief?
Ratio Decidendi: The court held that the will dated 06.03.1992 was valid and the will dated 21.09.1998 was not valid. The court found that the will dated 21.09.1998 was executed under suspicious circumstances, including the fact that it was executed just 13 days before the testator's death, that it was registered three months after the testator's death, and that it was not signed by any family member. The court also found that the testator was not in a sound disposing mind at the time of the execution of the will dated 21.09.1998.
Final Decision: The court granted Letters of Administration in respect of the will dated 06.03.1992 to the petitioner.
REVA KHETRAPAL, J
1. Both the aforesaid probate petitions have been filed for grant of Letters of Administration in respect of the last will of late Shri Bhikhu Ram Gupta, who died on 04.10.1998, leaving behind him three sons and four daughters. The deceased testator was the owner of a double storey house built on Plot No.21/32, Shakti Nagar, Delhi. The admitted case of the parties is that the said plot was purchased and the construction raised thereon out of the exclusive savings and earnings of the deceased testator and as such, the deceased testator had complete right to dispose of and bequeath the said property in accordance with his own desire. The three sons of Shri Bhikhu Ram Gupta had been living with him in the aforesaid property from the time of its purchase till the date of his death. Insofar as the four daughters of Shri Bhikhu Ram Gupta are concerned, it is the common case of the parties that the testator had discharged all his obligations towards his daughters, who were married and well placed in life.
2. The first probate petition, being TEST CASE No.44/1999, is filed by one of the sons of late Shri Bhikhu Ram Gupta, namely, Shri Krishan Dass Gupta for grant of Letters of Administration in respect of the will of his father dated 6th March, 1992. The second probate petition, being TEST CASE No.51/2004, has been filed by the youngest son of late Shri Bhikhu Ram Gupta, namely, Shri Ram Kumar Gupta, who has staked his claim to the grant of Letters of Administration in respect of the estate of his deceased father premised on the will dated 21st September, 1998. Succinctly, the assertions made in both the aforesaid probate petitions are as follows.
TEST CASE No.44/1999
3. In the aforesaid probate case, the petitioner Shri Krishan Dass Gupta has asserted that the petitioner and the respondent Nos.2 and 3, who are the other two sons of the deceased testator, had been staying in the house of the deceased testator with their families in their respective portions from the very beginning. The testator, with a view to ensure peace and harmony in the family, had got executed a Memorandum of Family Agreement/Settlement dated 02.10.1991, in terms of which it was specified that the various portions as indicated in the site plan annexed with the Memorandum were with the respective parties (that is, the petitioner and the respondent Nos.2 and 3), and it was agreed in the Memorandum of Family Settlement that the parties will continue to enjoy possession of their respective portions. It was also elaborated in the said family agreement that if and when the said house gets demolished due to an act of God (including earthquake), or by the mutual consent of the three sons of the deceased testator, the land upon which the premises have been built shall vest in the ownership of the three sons in equal proportion, namely, one-third each. The aforesaid Family Agreement/Settlement was signed by the testator as well as his three sons, the petitioner and the respondent Nos.2 and 3 therein. The respondent Nos.4 to 7, the married daughters of the testator, had also appended their signatures on the agreement, which was drafted by an Advocate. It was made clear that the agreement would be binding upon all the members.
4. It is further asserted in the petition that since the deceased testator was growing old, with a view to ensure harmony in the family both during his lifetime as well as after his death, he had executed a will dated 06.03.1992 in terms of which he had expressed his desire and bequeathed his immovable property in the following manner:-
A. The respondent No.2, the eldest son, namely, Shri Mahavir Prasad was to become the complete owner of the portion of the said house wherein he was residing along with his family, which has been shown in ORANGE colour in the annexed site plan, which was at the ground, mezzanine and first floor of the house.
B. The petitioner, the second son, namely, Shri Krishan Dass Gupta was to become the c
