Full Text
HIGH COURT OF DELHI
Date of Decision: 18th December, 2019
RAVI MOHAN KAUL ..... Petitioner
Through: Mr. Ravi Mohan Kaul, Petitioner in person.
Through: Mr. Shlok Chandra, Advocate for R- 1.
JUDGMENT
1. A probate petition under Section 276 of the Indian Succession Act, 1925 was filed by the Petitioner -Mr. Ravi Mohan Kaul, the son of late Mr. P.N. Kaul. The Respondents, apart from the State, are the wife of Late Mr. P.N. Kaul - Ms. Prabha Kaul; the second son - Mr. Hira Kaul and daughter - Ms. Chandra Kaul Muthoo.
2. The petition sought probate of the Will dated 21st July, 1997 of Late Mr. P.N. Kaul. The said Will reads as under: “Whereas my family on the date of bequeathing this Will consists of myself, my wife Smt. Prabha Kaul, my elder son Shri Hira Kaul, my younger son Shri Ravi Mohan Kaul, and my daughter Smt. Chandra Kaul, wife of Shri Jawahar Lal Kaul Mahtoo. And WHEREAS my daughter is married and settled in her family and with the grace of god is living a happy life. 2019:DHC:7092 Whatever I wanted to do for my daughter I have done and given to her and therefore I do not wish to give anything more. Hence, nothing is given to her.
AND WHEREAS I have not made any earlier Will or Testament or codicil which might be put forward to have been made by me by any interested person. Even if that be so, this testament is to be considered as my last Will and Testament in suppersession of all previous Testaments.
WHEREAS I am the sole and exclusive Owner of the immovable property bearing C-1/20, Vasant Vihar, New Delhi, at present comprising of Ground Floor having three bed rooms, three bath rooms, two small store rooms, one drawing room, one kitchen, one small store room, front yard and back yard, Mezzanine floor between first and second floor having a servant quarter, and terrace above the first floor (hereinafter referred to as the “said immovable property”) No other person has any right, title or interests, of any nature whatsoever, in the said property. AND WHEREAS, besides the said property, I own other movable properties, in the form of thirty (30) Fixed Deposits, joint and individual, in State Bank of India, Central Secretariat, New Delhi.
AND WHEREAS this is my last and final testament in regard to the all my properties, movable and immovable. NOW, THEREFORE, I hereby bequeath the abovementioned properties, movable and immovable, and the same shall devolve upon and are to be divided amongst my family members as under: My Wife, Smt. Prabha Kaul, shall after my death, get Rs. 2,00,000.00 (Rupees two lakh only) out of all my fixed deposits mentioned hereinabove. After the payment of Rs. 2,00,000.00 to her from the fixed deposits, the remaining amount, whatsoever it may be, shall be divided in equal shares between my two sons Shri Hira Kaul and Shri Ravi Mohan Kaul. My wife Smt. Prabha Kaul shall, after my death, take possession of my immovable property and she shall hold the same throughout her life without any power to alienate, transfer, sell or assign the same. However, she shall be entitle to use and occupy the same as she may feel like throughout her life for her maintenance. After the death of my wife, the ownership of the said property shall absolutely, for all intent and purposes, go to my two sons Shri Hira Kaul and Shri Ravi Mohan Kaul in the following manner: To Shri Ravi Mohan Kaul
(i) Ground Floor of the property bearing no. C-1/20,
Vasant Vihar, New Delhi, comprising of one drawing cum dining room, three bed rooms, three bath rooms, two small store rooms, one kitchen back and front yard/baranda.
(ii) One Servant Quarter above the Garage between first floor and ground floor.
(iii) half portion at rear side of the total unconstructed second floor.
(iv) rear terrace over his rear portion of the second floor equivalent to half of the total surface at third floor; and
(v) front half of the garage at ground floor after leaving a common passage of 2 feet x 2 feet in the garage. To Shri Hira Kaul
(i) first floor comprising of two bed rooms, one kitchen, one small store room, three bath rooms, large open area in front at the first floor with right to construct the same.
(ii) half (1/2) portion at front side of the total unconstructed second floor; and
(iii) One Servant Quarter between first floor and second floor above the existing servant quarter. whenever the said servant quarter is constructed, Shri Ravi Mohan Kaul shall, if Shri Hira Kaul requires and desires, equally contribute to the expenses incurred in the constructing a similar servant quarter to the one above the garage.
(iv) front terrace over his front portion of the second floor equivalent to half of the total surface at third floor and
(v) rear half (1/2) of the garage at ground floor after leaving a common passage of 2feet x[2] feet in the garage. For Common Use Both my sons shall have a common right to common passage at ground floor and in the garage and stair case leading to all floors and access to common utilities such as electricity, water, water tank, sewer etc. None of them shall interfere and intervene in the peaceful enjoyment of these common facilities by each other. Both my sons Shri Hira Kaul and Shri Ravi Mohan Kaul shall hold their respective shares described hereinabove in the said immovable property absolutely and shall have the power to alienate, mortgage, transfer, sell or otherwise deal with the their respective shares.
THE TESTATOR willingly make this Will that after his demise all his rights, interest, liens and titles in all Fixed Deposits, and in property bearing no. C-1/20, Vasant Vihar, New Delhi, and the land beneath the same be acquired, possessed and inherited by the EXECUTOR/BENEFICIARY, in the manner described hereinabove, who may get the same transferred and mutated the same in their own name, as owner in the records of the concerned Banks and authorities on the basis of this Will.
THE TESTATOR further declares that if any of the EXECUTOR/BENEFICIARY, predeceases him, all his/her rights, interest, liens and titles in the said properties be acquired, possessed and inherited by the heirs of the EXECUTOR/BENEFICIARY in the above manner,who may then get the same mutated and transferred the same in their own names, as owner in the records of the concerned authorities/banks on the basis of this WILL, without any objection from the other heirs of the TESTATOR. That no other legal heirs, representatives of the TESTATOR shall have any right, title or interest in the said properties, and shall further not have any right to interfere in the operation of this Will.
IN WITNESS WHEREOF, I have signed and executed this testament in the presence of the following witnesses on this 21st day of July 1997. The above Will was considered by the ld. Trial Court in P.C. No. 44/2014 titled Ravi Mohan Kaul v State and Ors. Vide order dated 29th May, 2015, the ld. Trial Court, after considering all the documents and the testimonies of the witnesses, allowed the petition in the following terms:
3. Thereafter, an application was moved by the Petitioner seeking certain corrections etc, in the probate and exemption was also sought from furnishing the administration-cum-surety bound. The ld. Trial Court, however, while consider this application, held that the Petitioner cannot treated as a sole surviving beneficiary. The Court rejected the plea for exemption from furnishing-cum-surety bond. The Court held that the Petitioner was not the sole beneficiary and accordingly dismissed the application vide order dated 5th September 2017.
4. Notice was issued in this petition on 25th April 2018. During the pendency of the present petition, on 16th April, 2019, it was recorded that after the filing of the probate, Ms. Prabha Kaul and Mr. Hira Kaul have both expired and the death certificates qua their demise have been filed on record. The Court thereafter, called for notarised affidavits of the Legal Heirs of late Mr. Hira Kaul. The order is relevant and set out below: “The petitioner has assailed the impugned judgment dated 29.05.2015 of the learned trial Court of the ADJ- 02 (South-West) in PC No.44/2014 as also the order dated 05.09.2017 in M. No.54644/2014, vide which an application filed under Sections 151, 152 & 153 of the CPC seeking amendment in the order dated 29.05.2015 to the extent that the petitioner herein sought that he be exempted from furnishing administrative surety bond, was declined. It has been submitted by the petitioner in person that there is an erroneous observation in the judgment dated 29.05.2015 of the learned Probate Court in para 21 thereof observing to the effect that there was no executor appointed qua the will dated 21.07.1997, Ex.PW1/A submitting to the effect that the executors are already mentioned therein as being Smt. Prabha Kaul, Shri Hira Kaul and the petitioner himself Shri Ravi Mohan Kaul. The petitioner has thus submitted that Smt. Prabha Kaul and Shri Hira Kaul have both since expired and the death certificates qua their demise are on the record and that he is the sole surviving executor and the natural heir of the testator now surviving submitting further to the effect that the respondent nos.2, 3 & 4 have already submitted their no objections which have been placed on record by the petitioner as well. Taking into account, however, the observations in order dated 05.09.2017 in relation to the aspect that the petitioner had not mentioned qua the legal representatives of the respondent no.3 to the probate petition, the respondent no.3 being Shri Hira Kaul, the notarized affidavits of the legal representatives of Shri Hira Kaul specifying the names of the legal representatives of Shri Hira Kaul be placed on record before proceeding further. Renotify for 21.08.2019.”
5. The Petitioner has now placed on record the details of the legal heirs of late Mr. Hira Kaul. As per the said affidavit dated 25th July 2019, Ms. Hira Kaul has left behind his wife -Ms. Hansi Kaul, his daughter- Ms. Richa Kaul and his son- Mr. Karam Kaul. The said legal heirs have also given their no objection certificates to the grant of Probate Since the no objections have been placed on record, and the details of the legal heirs have also been placed on record now, it is clear that there are no other claimants to the estate of late Mr. P.N. Kaul. The probate is accordingly granted in favour of the Petitioner.
6. It is the settled legal position that if the beneficiary is the natural legal heir, exemption can be granted from furnishing the surety and administration bond. In Anil Bahri Vs. State Test Cas. 64/2014 (Decided on 13th July, 2018), this Court held as under:
of Sub-Registrar-V for getting the will registered.
15. The Petitioner is entitled to grant of probate. The probate of Will dated 25th October, 2011 is granted subject to the furnishing of the court fee in terms of the valuation report filed by the SDM, Hauz Khas, New Delhi. Exemption as prayed for from furnishing of sureties and administration bond is granted as per the judgment in Sanjeev Kumar Juneja (Supra).” To the same effect is the judgment in Rita Narang and Anr. v The State & Ors. Test Cas. 11/2011 (Decided on 7th August, 2015) cited by the Petitioner.
7. In the present case, the Petitioner is the natural heir of the deceased who is also stated to be in possession of part of the property. The Court is satisfied that the affidavits of the other legal heirs coupled with the No Objection Certificates issued by them entitle the Petitioner to relief. The furnishing of administrative-cum-surety bond requirement is accordingly dispensed with. Let the probate be issued upon verifying the payment of Court fee.
8. With these observations, the petition and all pending applications are disposed of.
PRATHIBA M. SINGH JUDGE DECEMBER 18, 2019 dj