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2017 Supreme(Del) 3452
IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J.MEHTA, J.
Kanchan Babbar And Ors. - Appellants
Versus
State And Anr. - Respondents
FAO No.387 of 2017
Decided On : 13-10-2017
For the Appellants :Mr. Gagan Deep Sharma, Advocate.
The court upheld the validity of the subject Will and rejected claims of supersession and concealment, establishing the deceased's intention to bequeath the industrial plot to his son, excluding the daughters.
Headnote:
Indian Succession Act - Probate - 1925 - Section 299
Fact of the Case:
The appeal challenges the judgment of the probate court granting probate with respect to the Will dated 23.9.1997, bequeathing an industrial plot to the deceased testator's son, excluding the four daughters. The deceased owned two properties, and five Wills were executed, each dealing with either the industrial or residential property. The subject Will was duly registered and attested by two witnesses.
Finding of the Court:
The court found that the subject Will was validly executed and not superseded by subsequent Wills. The court also dismissed the argument of concealment of the Will dated 20.5.2002, as it only pertained to the residential property. The court rejected the claim that the deceased would not have intended to disinherit his daughters.
Issues: Validity of the subject Will, Supersession by subsequent Wills, Concealment of the Will dated 20.5.2002, Intention to disinherit daughters
Ratio Decidendi: The subject Will was found to be valid and not superseded by subsequent Wills. The court dismissed the argument of concealment of the Will dated 20.5.2002, as it only pertained to the residential property. The claim that the deceased would not have intended to disinherit his daughters was rejected.
Final Decision: The appeal was dismissed.
VALMIKI J. MEHTA, J.
FAO No.387/2017 and C.M. No.36356/2017 (stay)
1. This first appeal is filed under Section 299 of the Indian Succession Act, 1925 impugning the judgment of the probate court below dated 1.2.2017 which has allowed the petition and has granted probate with respect to the Will dated 23.9.1997 executed by the deceased testator Ex. MWO Nand Lal Surma with respect to his property being industrial plot no.38A, Functional Industrial Estate of Electronics, Okhla Industrial Estate Phase II, New Delhi. By this Will the subject property was bequeathed in favour of the respondent no.2 herein, the son of the deceased testator by excluding the four daughters of the deceased testator. Probate petition was filed by the respondent no.2 herein who is the son of the deceased testator. The daughters of the deceased testator, i.e the sisters of the respondent no.2 herein were the respondents in the probate petition filed in the court below. The Will dated 23.9.1997 is duly registered with the Sub-Registrar office at Janakpuri, New Delhi vide registration no.60774 in Additional Book no.3 Volume No.129/4001.
2. The facts of the case are that the respondent no.2 herein/petitioner in the court below, applied for probate of the Will dated 23.9.1997 executed by his father Ex. MWO Nand Lal Surma. Respondent no.2 was appointed as the executor of the Will. In the probate petition, the four daughters of the deceased testator were arrayed as respondent nos.2 to 5. The objections which were filed by the respondent nos.2 to 4 in the probate court below were rejected vide order dated 18.8.2008 of the trial court and which order has become final. It is seen that the respondent nos.2 to 4 in the probate court below therefore have filed no objections/written statement, and have therefore also led no evidence. The probate petition in the court below was contested by the respondent no.5 in the court below Smt. Kanchan Babbar and who is the appellant no.1 in the present appeal.
3. From the records of the probate petition, it is seen that the deceased testator owned two immovable properties. One property was the subject property being industrial plot no.38A, Functional Industrial Estate of Electronics, Okhla Industrial Estate Phase II, New Delhi. The second property was the residential property of the deceased testator being residential plot no.B-18, Nilamber Apartments, Rani Bagh, New Delhi. With respect to the aforesaid two properties being the industrial plot and the residential plot, there were a total of five Wills which were executed by the deceased testator. The five Wills were in two chains with one chain of Wills being only for the industrial plot and the other chain of the Wills was with respect to the residential plot. The first Will Ex.PW1/13 dated 19.2.1993 and the third Will dated 23.9.1997 Ex.PW1/2 (Will in question in probate case) were with respect to the industrial plot. The second Will Ex.PW1/14 dated 24/25.2.1993, the fourth Will Ex.PW1/15 dated 2.12.1998 and the fifth Will Ex.PW1/16 dated 20.5.2002 are with respect to the residential property. Whenever the deceased testator Ex. MWO Nand Lal Surma made his Will, the Will was made only specific to one property i.e each of the five Wills deals with only either the residential property or the subject industrial plot. By all the Wills the son of the deceased testator was the beneficiary or the ultimate beneficiary.
4. The facts with respect to these five Wills are stated in paras 58 to 63 of the impugned judgment and these paras read as under:-
“58. The first Will Ex. PW-1/13 is dated 19.02.1993. The will is notarized and attested by two witnesses, namely, Sh. Vinod Kumar Sharma and Mrs Raksha Surma. No witness examined by petitioner. Witness Mrs Raksha Surma, stated to be died. This will states about the allotment of plot No. 136 (New No. 38 A) measuring 250 Sq. Yards in Functional Industrial Estate in favour of deceased testator by the Okhla Authorities. In this will the benef
