Aruna Khera v. Vipin Khera & Kumkum Bhatia

9. It is asserted that the Second Will disclosed by defendant No. 1, was a forged and a fabricated document as the plaintiff and defendant No.2 had been given only one flat each, while the remaining six flats had gone to the share of defendant No.1. Essentially, she has challenged the second Will on the ground that the second Will does not mention anything about the first Will.

10. Pertinently, the attesting witness Shri Mahender Arya was a witness to the first Will as well as the second Will. The plaintiff claims to have approached Shri Mahender Arya, who informed her that defendant No.1 had approached him to be an attesting witness to one Power of Attorney for maintenance of the house and that he was not aware about the execution of the second Will.

11. The plaintiff has further challenged the Will on the ground that there is no justiciable basis for not giving an equal share in the suit property to her as defendant No.1. Further, the second attesting witness Shri Amit Bhatia is none other than the brother of Smt. Madhu Khera (wife of defendant No.1). Furthermore, Smt. Vidya Khera suffered from severe depression on account of unfortunate and untimely death of her son and, therefore, was not in a right state of mind to execute the second Will.

12. The plaintiff has therefore, has filed the present suit for Partition of the suit property on the basis of the first Will and for Declaring the second Will dated 12.11.2001 (hereinafter referred to as “second Will”) of Smt. Vidya Khera as null and void and also sought Permanent Injunction against defendant No.1 from creating third party interest in the suit property.

13. Defendant No.1 has contested the suit by taking preliminary objections that the suit has not been valued properly for the purposes of Court Fee.

14. On merits, it is not disputed that Smt. Vidya Khera became the owner of the suit property, and thereafter entered into a Collaboration Agreement by virtue of which his mother had 50% ownership in the suit property. It is, however, asserted that Smt. Vidya Khera after the demise of her son Col. Sudhir Khera, executed the second Will i.e. Will dated 12.11.2001 which was her last and final Will. When the plaintiff was informed about implementation of the second Will, she was not satisfied with the division of property and therefore showed resistance. He has asserted that the plaintiff is entitled to a share of one flat in terms of the Will dated 12.11.2001 of Smt. Vidya Khera.

15. Defendant No.2 Smt. Kumkum Bhatia (daughter of Smt. Vidya Khera) and sister of defendant No.1 and Late Col. Sudhir Khera, husband of the plaintiff has taken a similar defence as defendant No.1 in her Written Statement.

16. The plaintiff in her Replication has reiterated her assertions as contained in the plaint.

17. Issue on the pleadings were framed on 08.07.2016 as under: “(i.) Whether the deceased Smt. Vidya Khera executed a legal valid Will dated 26.10.1993? OPP (ii.) Whether the Will dated 12.11.2001 executed by Smt. Vidya Khera is forged and fabricated? OPP (iii.) Whether the plaintiff is entitled to decree of declaration as prayed for? OPP (iv.) Whether the plaintiff has paid proper and appropriate Court Fee in accordance with Court Fees Act? OPP (v.) Whether the Will dated 12.11.2001 is the last legal and valid Will of Smt. Vidya Khera? OPD (vi.) Relief.”

18. The plaintiff in support of her case appeared as PW[1] and tendered her affidavit of evidence as PW1/X. The plaintiff also examined PW[2] Smiti Suri, her daughter who had corroborated that the second Will is a forged and fabricated one.

19. The defendant No.1 examined himself as DW[1] and tendered his evidence as Ex.DW1/X, wherein he deposed that the Will dated 12.11.2001 executed by Smt. Vidya Khera is her last, final and genuine Will.

20. DW[2] Shri Amit Bhatia is the attesting witness who has deposed about his signatures and of Shri Mahender Arya on the Will Ex.DW2/1 and has also identified the signatures of Smt. Vidya Khera on the said Will.

21. DW[4] (sic) Smt. Kumkum Bhatia has deposed on similar lines as DW[1] Col. Vipin Khera.

22. The detailed testimony of the witnesses shall be considered subsequently.

23. Submissions heard and record along with evidence and the documents perused.

24. It is an admitted case that the suit property was originally owned by Late Maj. P.N. Khera vide registered Sale Deed dated 26.02.1962. He executed a Will dated 26.10.1971 Ex.PW1/2 bequeathing the suit property to his wife Smt. Vidya Khera. After the demise of Maj. P.N. Khera the legal heirs of deceased P.N. Khera i.e. Col. Sudhir Khera and daughter Kumkum Bhatia executed a No Objection in favour of their mother in whose name the property was mutated.

25. It is further not in dispute that Smt. Vidya Khera had entered into a Property Development Agreement with Col. R.P. Mendiratta and Sushil Kumar Arora on 07.06.1996 for reconstruction of the entire property on the suit plot and as per the Agreement Smt. Vidya Khera was entitled to 50% of the constructed portion in the building. It is further not in dispute that the Property Development Agreement was duly executed and four floors i.e. Lower Ground Floor, Upper Ground Floor, First Floor and Second Floor were constructed. As per the Property Development Agreement the property was divided vertically and the left side of the plot facing House No. 6/80 was earmarked for Smt. Vidya Khera and the right side was earmarked for the developer. Each floor that came to the share of Smt. Vidya Khera had two flats; one in the front portion and the second on the rear portion. Hence, eight flats came in the share of Smt. Vidya Khera as has been also indicated in the Will. However, s per the Site Plan annexed by the plaintiff each floor i.e. Upper Ground, First and Second floor has two flats each while Lower Ground Floor has one flat.

26. The plaintiff has propagated the registered Will dated 26.10.1993 by virtue of which 50% of the property of Smt. Vidya Khera had been bequeathed to her husband Late Col. Sudhir Khera while other 50% had gone to the other son of Smt. Vidya Khera i.e. Col. Vipin Khera.

27. Defendant No.1 has however, relied upon subsequent Will dated 12.11.2001 as the last and final Will of Smt. Vidya Khera and has claimed that the property has to be divided in accordance with the subsequent Will. The rival contentions of the parties, therefore, need to be now considered. Issue No.4: “Whether the plaintiff has paid proper and appropriate Court Fee in accordance with Court Fees Act?” OPP

28. Defendant No. 1 has submitted that the plaintiff is not in possession of any part of the suit property and therefore, she ought to have paid ad volarem court fees on the market value of the property as alleged in the plaint i.e. Rs.[2] crore.

29. In the present case, the predeceased husband of the plaintiff is a legal heir of Smt. Vidya Khera. Further, the plaintiff is a beneficiary in the first Will and the second Will. The only point of contention is the extent of share that the plaintiff is entitled to in the suit property. Therefore, irrespective of her share, the plaintiff is a co-owner in the suit property which puts her in constructive possession of the same.

30. It was held by this court in Prakash Wati vs Dayawanti, (1990) 42 DLT 421, that it is a settled principle of law that in the case of co-owners, the possession of one is in law the possession of all unless ouster or exclusion is proved. By relying on the judgement in Jagdish Pershad v. Joti Pershad, 1974 SCC OnLine Del 214, this court in Prakash Wati(Supra) reiterated that, when the plaintiff asserts shared possession of the property for which partition is requested, whether actual or constructive, the plaintiff is only required to pay a fixed court charge in accordance with Article 17(vi) Schedule II of the Court Fees Act, 1870. Thus, ad volarem court fee under Section 7(iv)(b) of the Court Fees Act, 1870 can be applied only when the plaintiff has been ousted from its enjoyment of the suit property and seeks restoration of the joint possession by way of a suit as was held in Asa Ram Vs. Jagan Nath and others, AIR 1934 Lahore 563.

31. Therefore, the plaintiff, who is in constructive possession of the suit property, has rightly paid fixed court fee for the relief of partition.

32. This issue is decided in favour of the plaintiff. Issue No.1: “Whether the deceased Smt. Vidya Khera executed a legal valid Will dated 26.10.1993?” OPP

33. The plaintiff has relied upon the first Will i.e. Will dated 26.10.1993 Ex.PW1/5 to assert that she is entitled to 50% share in suit property. She has produced the first Will. However, aside from producing this Will, she has not examined the attesting witnesses for its valid proof. She has annexed the Affidavit on a Non Judicial Stamp Paper of Shri Mahender Arya Ex.PW1/8 (one of the attesting witnesses), but he never stepped into the witness box to tesify.

34. Moreover, this Affidavit has not even been attested or notarized and therefore, has no legal sanctity. The Will has, therefore, not been proved in accordance with Section 68 of the Indian Evidence Ac, 1872 which mandates that at least one of the attesting witness must be examined to prove the Will.

35. Further, though the defendants claim to be unaware of the execution of the first Will, there is no serious challenge to the genuineness of the first Will by them. Rather their claim is that a subsequent a second Will dated 12.11.2001 has been executed by Smt. Vidya Khera expressing her last intent for devolution of property.

36. Thus, the plaintiff has failed to prove the valid execution of the Will Ex.PW1/5 in accordance with law, and also has not been able to prove that this was the last and final Will of Smt. Vidya Khera.

37. The Issue is decided accordingly in favour of the defendants. Issue No.2: “Whether the Will dated 12.11.2001 executed by Smt. Vidya Khera is forged and fabricated?” OPP Issue No.3: “Whether the plaintiff is entitled to decree of declaration as prayed for?” OPP Issue No.5: “Whether the Will dated 12.11.2001 is the last legal and valid Will of Smt. Vidya Khera?” OPD

38. The defendant No.1 Col. Vipin Khera (Retd.) has propounded a subsequent/ second Will Ex.DW2/1 i.e. Will dated 12.11.2001 of his mother Smt. Vidya Khera. Defendant No.1/ DW[1] in his evidence Affidavit Ex.DW1/X has deposed that his mother had executed the second Will Ex.DW2/1 which has her photograph as well as her signatures.

39. The first aspect in the Probate Petition is to establish due execution of the Will. Section 63 of Indian Succession Act, 1925 provides for the substantive law on Execution of Unprivileged Wills. Section 63 (a) & (b) of the Indian Succession Act, 1925 provides the requisites of a valid Will. It states that the testator must affix his signature on the Will and it shall appear that it was intended thereby to give effect to the writing as a will. Further, Section 63(c) of the Indian Succession Act, 1925 provides that a Will must be attested by two or more witnesses, each of whom should have seen the testator sign or put his mark on the Will. The Will must be signed by the witnesses in the presence of the testator, but it is not necessary that more than one witness should be present at the same time.

40. Thus, to prove the valid execution of unprivileged wills, it is apposite to establish that firstly, the Will was duly singed by the testator or bears the affixation of his Mark; secondly, the Mark so affixed or the signatures of the testator was so placed that it appears that it was indented to be executed by the Testator in the manner as specified and with a dispensing mind free from all extraneous influences; thirdly, it must be attested by two or more witnesses, each of whom should have seen the testator sign or put his mark on the Will. The Will must be signed by the witnesses in the presence of the testator, but it is not necessary that more than one witness should be present at the same time.

41. DW[1] Col. Vipin Khera deposed that his mother was educated, intelligent and a pious woman who was wholly conscious and active at the time she executed the Will. His maternal uncle Shri Mahender Arya i.e. brother of Smt. Vidya Khera as well as Mr. Bhatia i.e. the brother-in-law of defendant No. 1 were the two attesting witness to the second Will dated 12.11.2001. He has identified the signatures of his mother as well as of the two witnesses as he is conversant with their signatures. He further deposed that this was the last valid Will of the mother.

42. Section 68 of Indian Evidence Act, 1872 further provides the mode of proof of the Will and requires that at least one attesting witness to the Will, must be examined.

43. The second Will has also been proved by DW[2] Shri Amit Bhatia the attesting witness who has fully corroborated that the Will bears the signatures of the Testatrix as well as his signatures as an attesting witness aside from those of the other attesting witness Shri Mahender Nath Arya. The execution of the Will has also been duly proved in accordance with Section 68 of the Indian Evidence Act by the attesting witness.

44. Further, the plaintiff in her cross-examination has also admitted that the signatures on the second Will appeared to be of her mother-in-law, though she was not sure about it. The plaintiff in her testimony has nowhere challenged the authenticity and validity of the Will Ex.Dw2/1. Her only claim was that the first Will i.e. Will dated 26.10.1993 had been executed by Smt. Vidya Khera. However, once a subsequent/ second Will Ex.DW2/1 has been executed, the earlier Will stands revoked and recalled.

45. The only ground on which the second Will has been challenged is that late Smt. Vidya Khera had equal affection for both the sons and there was no reason for her to have executed a subsequent Will reducing the share of the plaintiff/ daughter-in-law.

46. There is no denying that the relationship between the plaintiff and her family as well as the defendants has always been cordial. The turning point apparently is the sad demise of Col. Sudhir Khera (husband of the plaintiff) who admittedly committed suicide in April, 2001. It was indeed a great shock for the entire family and admittedly late Smt.Vidya Khera stood by her daughter-in-law in such time of distress and frequently visited and spent time with the plaintiff. The marriage of the younger daughter of the plaintiff was fixed in November, 2001 and Smt. Vidya Khera insisted on the marriage not being deferred and she actively supported and helped the plaintiff in the performance of the marriage.

47. It is thus evident that late Smt. Vidya Khera had no animosity or ill will against the plaintiff. However, the reason for executing the second Will is evident from the recitals in the Will Ex.DW2/1. Smt. Vidya Khera has stated that the plaintiff has two daughters; one of whom was married and professionally well placed and the other was engaged to be married. Her daughter Kumkum Bhatia is also married and well settled in Dehradun. Kumkum Bhatia’s son Manik Bhatia is studying in Engineering college at Pune and her daughter Anjali Bhatia is also studying in college at Dehradun. The Testatrix i.e. Vidya Khera had been living along with her younger son Col. Vipin Khera/defendant No.1 and his family comprised of his wife Madhu Khera, hearing-handicapped son, Rahul Khera and daughter, Vidushi Khera. Both these children were studying in school. She further mentions that many changes have taken place both in her views and in the circumstances and that she was convinced that now her son Vipin Khera and his wife Madhu Khera were capable of managing and looking after her properties after her demise. She accordingly constituted Vipin Khera and Madhu Khera as joint Executors and residuary legatees under her Will and directed that on her demise, they would collect all her assets and give effect to the provisions of the Will after having incurred all customary and adequate expenses of her funeral and after paying all her debts and tax liabilities.

48. These were the circumstances which prevailed on Smt. Vidya Khera under the second Will reads as under: “Whereas my elder son late Col Vipin Khera had been living with his family at NOIDA since 1996 till his death in April 2001. His family consist of his widow Mrs’ Aruna Khera, his daughter Mrs. Priti Malhotra who is married and working with Hong Kong Bank at Bangalore, and his daughter Smriti Khera who is working at Gurgaon and is engaged to be married in November 2001.My daughter Mrs. Kumkum Bhatia is married and settled with her husband Lt. Col Bhushan Lal Bhatia at Dehradun. Her son Manik Bhatia is studying in Engineering college (Army Institute of Technology)at Pune, and her daughter Anjali Bhatia is studding in college at Dehradun. I live here in my house along with my younger son Lt. Col. Vipin Khera and his family consisting of his wife Ms. Madhu Khera, his hearing-handicapped son Rahul Khera, and his daughter Vidushi Khera, and both of those children are studying in Delhi in Class XII and X respectively. Many changes have taken place both in my views and in my circumstances, and I am convinced that my son Vipin Khera and his wife Madhu Khera are capable of managing and looking after my properties after my demise. I hereby appoint and constitute Vipin Khera and Madhur Khera joint executors and residual legatees of this my Will and direct that they shall soon after my demise collect my assets and give effect to the provisions of this will, after having incurred all customary and adequate expenses on my funeral, and after paying all my debts and tax liabilities.”

49. In the case of Uma Devi Nambiar & Ors vs T.C. Sidhan (Dead) (2004) 2 SCC 321 extensively reviewed the case law dealing with a Will and opined that mere exclusion of the natural heir or giving of lesser share by itself cannot be considered as a suspicious circumstance. The Court observed that a Will is exhibited to alter the ordinary mode of succession and by the very nature of it, it is bound to result in either refusing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity of executing a Will. It is true that the propounder of Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heir has been excluded or lesser share has been given to them by itself without anything more, cannot be held to be suspicious circumstance especially in a case where the bequest has been made in favour of an off spring.

50. In Sridevi and Others vs Jayaraja Shetty and Others (2005) 2 SCC 784 Supreme Court further observed that when reasons for unequal distribution have given in the Will itself, the same cannot be treated as a suspicious circumstance when the testamentary capacity of the testator has been established.

51. However, in Kavita Kanwar vs. Pamila Mehta & Ors. AIR 2020 SC 54 the Apex Court observed that the basic question which immediately crops up is what could have the reason for the testatrix of being desirous of providing unequal distribution of the assets by giving major share to one child in preference to other two children.

52. In the present case, from the recitals in the Will itself, it is evident that the subsequent events took place in the life of Smt Vidya Khera which led her to execute the second Will. It cannot be ignored that her she lived with Vipin Khera who had a son who was hearing impaired. Also, his children were school going while the daughters of the plaintiff were well settled.

53. Pertinently, none of the legal heirs of Smt. Vidya khera have been excluded or disinherited in the second Will. She has only made a distribution of the assets for which ample justifications have been provided in the Will. Moreover, the plaintiff has failed to controvert the circumstances explained by Smt. Vidya Khera in the second Will.

54. There is no other circumstance which has been brought forth by virtue of which it can be said that there is any suspicious circumstance surrounding the genuineness of the Will.

55. It is, therefore, held that the Will Ex.DW2/1 dated 12.11.2001 is the last and final validly executed Will of Smt. Vidya Khera and the suit property is liable to be partitioned in the manner as described in the Will Ex.DW2/1.

56. The issues are accordingly decided in favour of defendant No.1. Conclusion:

57. The plaintiff has sought partition of the suit property which necessarily has to be divided in terms of the last Will of Smt. Vidya Khera which is defined as under: A-l(SF) (i.e. front portion of second floor) to my daughterin-law Mrs Anina Khera, A-l(FF) (i.e. front portion offirst floor) to my son Vipin Khera, '. A-l(UGF) (i.e. front portion of upper ground floor) to my son Vipin khera for his future clinic, One portion, whichever my executors deem fit, to my daughter Mrs Kumkum Bhatia, One portion' whichever my executors deem fit, to be set aside for conversion to money, and that money to be used for the maintenance of the building. One portion, whichever my. executors deem fit, I wish to give and devise in TRUST. Relief:

58. In view of the findings on the above issues, the plaintiffs and the defendants are entitled to the partition of the suit property as per the Will dated 12.11.2001 Ex. DW2/1.

59. The preliminary decree of partition is hereby passed in terms of the Will Ex. DW2/1.

60. List on 27.05.2024 for determination on the mode of partition for the purpose of Final Decree.

JUDGE MAY 01, 2024