Full Judgement
Delhi High Court
Lt Col Kapil Dutt(Retd) & Anr vs The State & Ors on 8 July, 2024
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 30th April, 2024
% Pronounced on: 08th July, 2024
+ TEST.CAS. 71/2010
1. LT. COL. KAPIL DUTT (RETD.)
S/o Late Major M.S.N. Dutt .... Petitioner No. 1
2. AMAL DUTT
S/o Late Wg. Cdr. Manu Dutt,
Both R/o B-31, Defence Colony,
New Delhi-110024 .... Petitioner No. 2
Through: Mr. Hemant Malhotra & Mr. Pankaj
Malhotra, Advocates.
versus
1. THE STATE ..... Respondent No. 1
2. SHASHI BALI
W/o Late Lt. Col. D.L. Bali,
R/o CA-30, Sector-1,
Defence Colony, Dehradun,
Uttarakhand ..... Respondent No. 2
3. ROSY SHARMA
W/o Shri Devinder Sharma,
R/o J-185, Sector-25,
NOIDA, Uttar Pradesh .....Respondent No. 3
4. TINA DUTT
W/o Late Wg. Cdr. Manu Dutt,
R/o 809, Mahagun Morpheus,
E-4, Sector-50, NOIDA,
Uttar Pradesh .....Respondent No. 4
Signature Not Verified
Digitally Signed TEST.CAS.71/2010 Page 1 of 20
By:VIKAS ARORA
Signing Date:08.07.2024
18:00:47
5. DIVYA DUTT
W/o Shri Kamal Kapila,
D/o Late Wg. Cdr. Manu Dutt,
R/o 4548, Novato Street,
Union City CA-94587,
California, U.S.A. ..... Respondent No. 5
Through: Ms. Pavitra Kaur, Mr. Abhinav Singh
& Mr. Rahat Bansal, Advocates for
R-1.
Mr. Sujoy Kumar, Advocate for R-2
& 3.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
JUDGMENT
NEENA BANSAL KRISHNA, J.
1. The present Petition under Section 276 of the Indian Succession Act, 1925 has been filed on behalf of the petitioners seeking grant of Probate/Letter of Administration in respect of the Will dated 09.06.1992 executed by Late Major M.S.N. Dutt.
2. Briefly stated, Late Major M.S.N. Dutt, the Testator, was married to Smt. Pushpa Rani Dutt who had two sons, namely, Lt. Col. Kapil Dutt (petitioner No. 1), Late Wing Commander Manu Dutt.
3. Late Wing Commander Manu Dutt, the younger son of Late Major M.S.N. Dutt, died in a plane crash on 12.01.1989 and is survived by his wife, Smt. Tina Dutt, respondent No. 4, Shri Amal Dutt, petitioner No. 2, and one daughter viz., Smt. Divya Dutt, respondent No. 5.
4. The petitioner No. 1 has explained that his father Late Major M.S.N.
Signature Not Verified Digitally Signed TEST.CAS.71/2010 Page 2 of 20 By:VIKAS ARORA Signing Date:08.07.2024 18:00:47 Dutt was an Army Officer who retired in the year 1970 and thereafter, he joined the legal profession and started practising as an Advocate in Delhi Courts. Late Major M.S.N. Dutt during his lifetime acquired a Leasehold Property bearing No. B-31, Defence Colony, New Delhi-110024, admeasuring 325 sq. yards (hereinafter referred to as the "subject property") vide registered Lease Deed dated 26.06.1967.
5. It is submitted that the subject property had been constructed by Late Major M.S.N. Dutt from the funds arranged by him and also contributed by his two sons, Lt. Col. Kapil Dutt, the petitioner No. 1 and Late Wing Commander Manu Dutt. Late Major M.S.N. Dutt during his lifetime executed a Will dated 09.06.1992 which was duly witnessed by his two close friends, Major K.L. Narang and Lt. Col. H.R. Dua. Major M.S.N. Dutt expired on 03.10.1993.
6. The petitioners have explained that as per the Will dated 09.06.1992 of Late Major M.S.N. Dutt, the deceased Testator created a life estate in respect of the entire immovable property in favour of his wife, Smt. Pushpa Rani Dutt. It was further stated that after the demise of Smt. Pushpa Rani Dutt, the ground floor and the loft upon the garage of the subject property would vest in the elder son, Lt. Col. Kapil Dutt, the petitioner No. 1. While the first floor and one servant quarter on the garage shall vest in the grandson, Mr. Amal Dutt, the petitioner No. 2. As regards the second floor, it was stipulated that it shall be rented out and the income therefrom shall be used for maintenance of the subject property, payment of house taxes, marriage of the granddaughters, namely, Smt. Divya Dutt and Smt. Parul and any such other expenses as may be necessary. The Testator, Late Major M.S.N. Dutt, did not give any share in the immovable property to the two
Signature Not Verified Digitally Signed TEST.CAS.71/2010 Page 3 of 20 By:VIKAS ARORA Signing Date:08.07.2024 18:00:47 daughters, who are respondent Nos. 2 and 3 herein as according to the deceased Testator, they were married and well-settled in their lives and were happily living in the matrimonial home. The entire movable properties were, however, bequeathed to the wife, Smt. Pushpa Rani Dutt, who was also appointed as the Executor by him. After the demise of Late Major M.S.N. Dutt, his wife, Smt. Pushpa Rani Dutt acted upon the Will dated 09.06.1992 and took exclusive charge of all the movable properties and also started realising rental income from the tenants in the different portion of the subject property.
7. It is asserted in the petition that there was no dispute inter se the legal heirs and Smt. Pushpa Rani Dutt never felt the necessity of obtaining the Probate in respect of the Will dated 09.06.1992.
8. The petitioner No. 1/Lt. Col. Kapil Dutt took possession of the ground floor of the subject property, while, the petitioner No. 2/Amal Dutt took the possession of the first floor as had been detailed in the Will dated 09.06.1992.
9. Smt. Pushpa Rani Dutt died on 26.03.2010. She executed a Will dated 06.08.2009, wherein she reiterated the Will dated 09.06.1992 and bequeathed all her movable assets to her two daughters, who are respondent Nos. 2 and 3 respectively. The petitioner No. 1/Lt. Col. Kapil Dutt had been appointed as the Executor of the Will dated 06.08.2009 of the mother, Smt. Pushpa Rani Dutt.
10. The petitioners have submitted that neither the respondent No. 2 nor the respondent No. 3 ever raised any objection to the Will dated 06.08.2009 of their deceased mother, Smt. Pushpa Rani Dutt, by virtue of which, they both acquired right in all the movable assets of their mother.
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11. After the demise of Smt. Pushpa Rani Dutt, the petitioners in the month of April, 2010 requested the respondent Nos. 2 and 3 to give their „No Objection‟ for the mutation of the subject property in their name. However, the respondent Nos. 2 and 3 refused to do so which necessitated the filing of the present petition for grant of Probate of the Will dated 09.06.1992 of Late Major M.S.N. Dutt.
12. The petitioners have submitted that the respondent Nos. 2 and 3 were all throughout aware of the Will dated 09.06.1992 of their father and they had never objected to the same during the lifetime of their mother, Smt. Pushpa Rani Dutt. The disputes are now being raised by the respondent Nos. 2 and 3 in respect of the immovable property which has come to the share of the petitioners to the exclusion of other legal heirs. Smt. Pushpa Rani Dutt who was appointed as the Executor by her husband Late Major M.S.N. Dutt in his Will dated 09.06.1992, has already expired. The two witnesses, namely, Major K.L. Narang and Lt. Col. H.R. Dua have expired on 28.02.1997 and 04.08.1997 respectively. Furthermore, the respondent No. 4/Mrs. Tina Dutt, wife of Late Wing Commander Manu Dutt and the respondent No. 5/Mrs. Divya Dutt, daughter of Late Wing Commander Manu Dutt have given their „No Objection‟ to the grant of the Probate/Letter of Administration in favour of the petitioners. Thus, the present petition has been filed on behalf of the petitioners for grant of Probate/Letter of Administration in respect of the Will dated 09.06.1992 of Late Major M.S.N. Dutt.
13. The Public Notice/Citation was published in English Daily, the Statesman dated 17.12.2010 in terms of the Order dated 01.11.2010.
14. The respondent Nos. 2 and 3, the two sisters in their Objections
Signature Not Verified Digitally Signed TEST.CAS.71/2010 Page 5 of 20 By:VIKAS ARORA Signing Date:08.07.2024 18:00:47 have taken the preliminary objection that the deceased Major M.S.N. Dutt had died on 03.10.1993 intestate and had not left any Will as has been projected by the petitioners.
15. The respondent Nos. 2 and 3 have claimed that the alleged Will dated 09.06.1992 is not a legal, valid and proper Will. The petitioners had approached the respondents sometime in the year 2005 and had asked them to give their „No Objection‟ on the basis of the alleged Will dated 09.06.1992 for relinquishing their rights in the subject property. The answering respondent Nos. 2 and 3 had disputed and denied this alleged Will. Smt. Pushpa Rani Dutt, the alleged named Executor under the Will dated 09.06.1992 of her husband Late Major M.S.N. Dutt, has never ever sought the Probate of the alleged Will and the present petition is hopelessly barred by limitation.
16. The respondent Nos. 2 and 3 have further asserted that their mother, Smt. Pushpa Rani Dutt during her lifetime never produced the Will dated 09.06.1992 and nor was the subject property ever transferred or mutated in the name of any of the legal heirs or the family members who are the parties to the present petition.
17. It is claimed that the Will dated 09.06.1992 is not validly attested. Major K.L. Narang and Lt. Col. H.R. Dua did not sign in the presence of each other and the Testator and in the absence of any proper and legal valid attestation of the alleged Will dated 09.06.1992, the present petition is liable to be dismissed.
18. It is further claimed that Late Wing Commander Manu Dutt, son of the deceased Testator, Major M.S.N. Dutt, pre-deceased untimely in the air crash on 12.01.1989 leaving the deceased Testator in the state of regular
Signature Not Verified Digitally Signed TEST.CAS.71/2010 Page 6 of 20 By:VIKAS ARORA Signing Date:08.07.2024 18:00:47 depression and grief. The first son, petitioner No. 1/Lt. Col. Kapil Dutt exercised undue influence and exploited the condition of the deceased, thought not admitted, and got the alleged Will executed under undue pressure and influence. Furthermore, the present petition has not been signed, verified or supported by the proper affidavits.
19. Aside from challenging the execution of the Will dated 09.06.1992, the respondent Nos. 2 and 3 have asserted that the subject property is not a self-acquired property of Late Major M.S.N. Dutt. In fact, the Testator, Late Major M.S.N. Dutt hailed from District Haripur Hazara in North-West Frontier Province (hereinafter referred to as "NWFP") and he along with the family migrated to Delhi after Indian Independence. The family owned land and other properties in NWFP and had received agricultural land along with other properties as compensation in lieu thereof in Delhi. These properties, except the agricultural land which belonged to HUF, were sold and from the sale proceeds of the said properties, Late Major M.S.N. Dutt purchased the plots of land, namely, in Dilshad Garden, Delhi admeasuring 730 yards along with the subject property, admeasuring 325 yards. The said two immovable properties were purchased from the joint family/HUF funds, accruing from the sale of the properties received in lieu of the properties left behind in NWFP. The subject property is, therefore, not the self-acquired property of Late Major M.S.N. Dutt.
20. The respondent Nos. 2 and 4 have further explained that the ground floor of the subject property was constructed in the year 1964 from the sale proceeds of the Joint Family properties, partly from his own savings and borrowings from the family members. At the time of purchase of the plot and the construction of the house, the petitioner No. 1 and younger son of
Signature Not Verified Digitally Signed TEST.CAS.71/2010 Page 7 of 20 By:VIKAS ARORA Signing Date:08.07.2024 18:00:47 Late Major M.S.N. Dutt, Late Wing Commander Manu Dutt were studying in schools outside Delhi and had no source of income to contribute. The subject property was subsequently rented out. The deceased Testator, Major M.S.N. Dutt took possession of the subject property after the expiry of the Rent Agreement in the year 1973 and pursuant to his retirement from the Army. The construction of the first and the second floor was commenced in the year 1988 and the same was completed in the year 1990. The construction was financed from the sale proceeds of the plot situated at Dilshad Garden, Delhi which was also the Joint Family property and Rs. 12,00,000/- was generated from the sale proceeds of plot situated at Dilshad Garden, Delhi.
21. It is claimed that not only the subject property was not self-acquired but even the construction thereon was done from the Joint Family funds. The two sons of the deceased Major M.S.N. Dutt never contributed any individual or personal funds for the purchase or construction of the subject property.
22. The respondent Nos. 2 and 3 have claimed that pursuant to the amendment to Hindu Succession Act, 1956, they are entitled to the same right and share in the properties of the deceased Major M.S.N. Dutt as the sons. The respondent Nos. 2 and 3 are entitled to 1/4 th share each in the subject property.
23. It is further claimed that there is no mention in the alleged Wills in regard to the terrace or the barsati floor in which, without prejudice to their other contentions, they are entitled to a share.
24. On merits, all the averments made in the petition are denied.
25. The petitioners in their Rejoinder have denied that the subject
Signature Not Verified Digitally Signed TEST.CAS.71/2010 Page 8 of 20 By:VIKAS ARORA Signing Date:08.07.2024 18:00:47 property had been acquired from the Joint Family funds or that it is a Joint Family property, in which the Testator, Major M.S.N. Dutt had no right of bequest. The other averments made in the petition have been reiterated.
26. The issues on the pleadings were framed on 22.07.2011 as under: -
"(i) Whether the deceased late Major M.S.N. Dutt executed the Will dated 09.06.1992 as his last valid and genuine Will and testament? OPP.
(ii) Whether the probate petition is not maintainable in the present form? OPD.
(iii) Whether the petition is barred by limitation in view of principle laid down in Kunvarjeet Singh Khandpur vs. Kirandeep Kaur 2008 (8) SCC 463 & Krishna Kumar Sharma vs. Rajesh Kumar Sharma (2009) 11 SCC 537? OPP
(iv) Relief.
Subsequently the issue no. (iii) was recasted as under vide Order dated 26.09.2011: -
(iii) Whether the petition is not barred by limitation? OPP."
27. The petitioner No.1/Lt. Col. Kapil Dutt appeared as PW1 and tendered his affidavit of evidence Ex. PW1/A, whereby he reaffirmed all the assertions made in the petition.
28. PW2/Mrs. Tina Dutt, the respondent No. 4 herein, has deposed about the Will dated 09.06.1992 having been executed by her deceased father-in- law, Late Major M.S.N. Dutt.
29. PW3/Col. Rajan Narang, is the son of one of the attesting witness, Late Major K.L. Narang, who has identified the signatures of his father as an attesting witness on the Will dated 09.06.1992.
30. PW4/Mr. S. Adisesh Sharma, Assistant, National Institute of Rural Development, Rajender Nagar, Hyderabad, has produced the records of the
Signature Not Verified Digitally Signed TEST.CAS.71/2010 Page 9 of 20 By:VIKAS ARORA Signing Date:08.07.2024 18:00:47 Lease Deeds dated 01.07.1999, 01.08.2001, 01.08.2004 and 01.08.2006 and the copies of the same are Ex. PW4/1 to Ex. PW4/4 respectively vide which the subject property had been taken on rent by the National Institute of Rural Development.
31. The witnesses were duly cross-examined on behalf of the respondent Nos. 2 and 3.
32. An Application bearing I.A. No. 24393/2015 under Section 151 of the Code of Civil Procedure, 1908 had been filed on behalf of the petitioners seeking closure of evidence of respondent Nos. 2 and 4 and this Court vide Order dated 07.01.2016 closed the evidence of the respondent Nos. 2 and 3 as the counsel for the respondent Nos. 2 and 3 stated that his clients do not want to adduce any evidence.
33. The detailed testimony of all the witnesses shall be considered subsequently.
34. Learned counsel on behalf of the petitioners in the oral arguments as well as in the Written Submissions has submitted that the testimony of the witnesses examined on behalf of the petitioners prove that the deceased Major M.S.N. Dutt had duly executed the Will dated 09.06.1992 which is Ex. PW1/2 and its execution has been duly proved by PW3/Col. Rajan Narang, son of Major K.L. Narang who has identified the signatures of his father on the Will, Ex. PW1/2.
35. It is further argued that though the respondent Nos. 2 and 3 have challenged the Will on the ground that the subject property, being an HUF property in which the Testator, Late Major M.S.N. Dutt had no right to execute a Will but they have miserably failed to adduce any cogent evidence in support of their assertions.
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36. It is further argued that the respondent Nos. 2 and 3 neither been able to challenge the testimony of the witnesses examined on behalf of the petitioners nor adduce any evidence to show that the Will, Ex. PW1/2 was executed by the deceased Testator, Late Major M.S.N. Dutt under the influence and pressure of the petitioner No. 1/Lt. Col. Kapil Dutt.
37. It is further explained that the present petition has been filed well within the period of limitation. It is only in the year 2010 that the disputes arose when the respondent Nos. 2 and 3 had refused to give their „No Objection‟ for mutation in respect of the Will dated 09.06.1992 to get the subject property transferred and that the necessity arose to file the present Probate Petition.
38. It is asserted on behalf of the petitioners that the plea of limitation taken by the respondent Nos. 2 and 3, is liable to be rejected.
39. It is thus, submitted that the present petition be allowed and the Probate/Letter of Administration be granted in favour of the petitioners in respect of Will dated 09.06.1992 executed by late Major M.S.N. Dutt.
40. Learned counsel on behalf of the respondent Nos. 2 and 3, who are the contesting respondents, submitted that he did not wish to file any Written Submissions and his Objections filed to the petition be considered as his arguments.
41. Submissions heard and the record as well as the evidence perused.
42. My issue-wise findings are as under: -
Issue No. 1: -
Whether the deceased late Major M.S.N. Dutt executed the Will dated 09.06.1992 as his last valid and genuine Will and testament? OPP.
43. The petitioners have sought the Probate/Letter of Administration in
Signature Not Verified Digitally Signed TEST.CAS.71/2010 Page 11 of 20 By:VIKAS ARORA Signing Date:08.07.2024 18:00:47 respect of the Will dated 09.06.1992, Ex. PW1/2 that was executed by Late Major M.S.N. Dutt during his lifetime.
44. It is not in dispute that Late Major M.S.N. Dutt was married to Smt. Pushpa Rani Dutt and had two sons, namely, the petitioner No. 1/Lt. Col. Kapil Dutt and Late Wing Commander Manu Dutt (died in an air crash on 12.01.1989) and two daughters, namely, the respondent Nos. 2/Mrs. Shashi Bali and 3/Mrs. Rosy Sharma.
45. It is further not in dispute that Smt. Pushpa Rani Dutt died on 26.03.2010. According to the petitioners, there was no dispute of any kind amongst the siblings during the lifetime of their mother, but after her demise in the year 2010, when they sought their „No Objection‟ for mutation of the subject property in their name in terms of the Will dated 09.06.1992, the respondent Nos. 2 and 3 refused to give their „No Objection‟. Thus, the need arose for seeking the Probate/Letter of Administration in respect of the Will dated 09.06.1992 of their father.
46. Section 63 of Indian Succession Act, 1925 provides for the substantive law and the requisites of Execution of Unprivileged Wills. Clause (a) & (b) of Section 63 of the Indian Succession Act, 1925 provide 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.
47. Thus, to prove the valid execution of unprivileged wills, it is apposite
Signature Not Verified Digitally Signed TEST.CAS.71/2010 Page 12 of 20 By:VIKAS ARORA Signing Date:08.07.2024 18:00:47 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.
48. To prove the execution of the Will dated 09.06.1992, PW1/Lt. Col. Kapil Dutt has deposed that during the lifetime of his father, Late Major M.S.N. Dutt who had executed a Will dated 09.06.1992, Ex. PW1/2 in which his mother, Smt. Pushpa Rani Dutt had been named as an Executor. According to the Will, the deceased Testator created a life estate in respect of the entire immovable property in favour of his wife, Smt. Pushpa Rani Dutt who during her lifetime managed the subject property and also took the rent from the tenants who had occupied various parts of the subject property. There is no challenge to this aspect of the testimony.
49. The petitioner No. 1 has further deposed that Late Major K.L. Narang and Lt. Col. H.R. Dua were the two attesting witnesses to the Will of the father, Late Major M.S.N. Dutt, but unfortunately, they both have also died. The petitioner No. 1 has admitted in his cross-examination that he was not present at that time. The Will dated 09.06.1992 was executed by his father and he had not seen the two attesting witnesses or the father signing on the Will. However, to prove the execution of the said Will under Section 63 of the Indian Succession Act, 1925.
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50. PW3/Col. Rajan Narang, son of Major K.L. Narang, has deposed that the Will dated 09.06.1992, Ex. PW1/2 bears the signatures of his father at Point „E‟, as he was well conversant with the writing and signatures of his father. He had seen his father writing and signing on several occasions.
51. Though PW3/Col. Rajan Narang was duly cross-examined on behalf of the respondent Nos. 2 and 3. No major contradiction or discrepancy in regard to the identification of the signatures of Major K.L. Narang by PW3/Col. Rajan Narang could be brought forth.
52. It is a case where the Will in question is of 1992 which has come up for consideration now after almost 30 years and unfortunately, all the witnesses to the Will have expired and in such circumstances, the Court has left with no option but to rely on whatever evidence which is available as on date. The respondent Nos. 2 and 3 in the extensive cross-examination of PW1/Lt. Col. Kapil Dutt or PW3/Col. Rajan Narang have not been able to bring forth any circumstance creating a suspicion in regard to the execution of the Will dated 09.06.1992, Ex. PW1/2 by Late Major M.S.N. Dutt.
53. The respondent Nos. 2 and 3 have failed to adduce any evidence to counter the testimony of the petitioners' witnesses or to lead any positive evidence to prove the grounds of challenge as taken in their Objections. The genuineness of the Will stands amply established by the testimony of PW1/Lt. Col. Kapil Dutt and PW3/Col. Rajan Narang.
54. The respondent Nos. 2 and 3 have taken a preliminary objection that the subject property had been purchased from the compensation received in lieu of the properties left behind by their father, Late Major M.S.N. Dutt in NWFP, when he came to India at the time of partition. Though the entire defence of the respondent Nos. 2 and 3 is built around their claim of the
Signature Not Verified Digitally Signed TEST.CAS.71/2010 Page 14 of 20 By:VIKAS ARORA Signing Date:08.07.2024 18:00:47 subject property, being a property acquired from the Joint Family/HUF funds, but they have miserably failed to explain any of their averments. There is no averment as to how or what was the properties that were left behind in NWFP how and in what manner were the claims or the compensation filed. Additionally, what exactly were the amounts were received in lieu of the properties left behind in NWFP at the time of partition.
55. It is also not disclosed how and in what manner, the HUF had come into existence. The terms HUF and Joint Family property have been used interchangeably without comprehending the distinction in the two concepts. It is a vague plea taken which lacks any specific details.
56. It is also pertinent to observe that that the respondent Nos. 2 and 3 had never asserted any right in the subject property after the demise of their father on 03.10.1993 and their claims to the subject property have arisen only when the petitioners sought their „No Objection‟ to get the subject property mutated in their name. Such inaction and stoic silence on behalf of the respondent Nos. 2 and 3 belie their claim of having any right, title and interest in the subject property. Be as it may, the scope of the Probate proceedings is confined to adjudicate upon the genuineness of the execution of the Will; whether the Testator had a right, title and interest in the subject property is beyond the scope of the Probate petition and such challenges are not maintainable in the present proceedings.
57. The other challenge taken by the respondent Nos. 2 and 3 was that after the demise of the son, Late Wing Commander Manu Dutt, Late Major M.S.N. Dutt had become depressed taking advantage of this mental condition, the petitioner No. 1/Lt. Col. Kapil Dutt who came to reside with
Signature Not Verified Digitally Signed TEST.CAS.71/2010 Page 15 of 20 By:VIKAS ARORA Signing Date:08.07.2024 18:00:47 the father exerted his undue influence to compel the father to execute the Will dated 09.06.1992, Ex. PW1/2. However, the petitioner No. 1/Lt. Col. Kapil Dutt in his testimony has deposed that after the father took retirement from the Army in the year 1973 and thereafter, he joined the legal profession and was a practising Advocate till the time of his demise on 03.10.1993. The demise of young son is bound to have a huge mental jolt on any father but to say that he became prone to easy influence by the others is too farfetched and should have been proved by the respondent Nos. 2 and 3 by adducing some cogent evidence which they have miserably failed to do.
58. It is also pertinent to observe that the younger son, Wing Commander Manu Dutt had died on 12.01.1989, while the Will has been executed after three years in the year 1992. There is no cogent evidence to establish that the petitioner No. 1 has exercised any undue influence in getting the Will executed from his father. The narration in the Will dated 09.06.1992 also bellies that it has been executed under the influence of third party. The deceased Late Major M.S.N. Dutt has clearly mentioned in the Will, Ex. PW1/2 that his two daughters, respondent No. 2/Mrs. Shashi Bali and respondent No. 3/ Mrs. Rosy Sharma are married and well settled in life and are happily living in their matrimonial houses. The explanation for not giving anything to the two daughters thus, finds an expression in the Will dated 09.06.1992, Ex.PW1/2.
59. Furthermore, the deceased had bequeathed his entire movable assets to his wife, Smt. Pushpa Rani Dutt to be utilised and disposed of by her according to her will. In addition to this, he also created a life estate in respect of which the subject property in favour of his wife, Smt. Pushpa Rani Dutt. It is evident that Late Major M.S.N. Dutt while writing the Will
Signature Not Verified Digitally Signed TEST.CAS.71/2010 Page 16 of 20 By:VIKAS ARORA Signing Date:08.07.2024 18:00:47 secured the interest of his wife, Smt. Pushpa Rani Dutt and also ensured that she had the right to reside in the subject property during her lifetime.
60. Late Major M.S.N. Dutt in his wisdom has further stated that on the demise of Smt. Pushpa Rani Dutt, the ground floor and the loft upon the garage of the subject property would vest in the elder son, Lt. Col. Kapil Dutt, the petitioner No. 1. The first floor and one servant quarter on the garage shall vest in the grandson, Mr. Amal Dutt, the petitioner No. 2. As regards the second floor, it was stipulated that it shall be rented out and the income therefrom shall be used for maintenance of the subject property, payment of house taxes, marriage of the granddaughters, namely, Smt. Divya Dutt and Smt. Parul and any such other expenses that may be necessary. Had there been any undue influence of the petitioners, the natural tendency would have been to get bequeathed in their name. However, the narration of the terms in the Will reflect that it is an expression of the deceased Major M.S.N. Dutt who made an appropriate arrangement for his wife, Smt. Pushpa Rani Dutt, the son along with the grandson in the said Will.
61. It is further significant to note that the mother during her lifetime had executed her Will dated 06.08.2009, Ex. PW1/13, the mother has not only made a mention of Will dated 09.06.1992 of her husband, Late Major M.S.N. Dutt and reiterated that the subject property has been bequeathed to the son and the grandson. Smt. Pushpa Rani Dutt also bequeathed all her movable assets to her two daughters.
62. It is pertinent to observe that the two daughters have not raised any challenge to the Will of the mother under which they have been the beneficiaries.
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63. In addition, the existence of the Will is also established from the documents Ex. PW1/6 to PW1/10 which are the Lease Deeds/correspondences with the National Institute of Rural Development, Hyderabad which had occupied the portion of the subject property as tenant. PW4/Mr. S. Adisesh Sharma, Assistant, National Institute of Rural Development has also produced the four Lease Deeds, Ex. PW4/1 to PW4/4 since 1999 till 2006, wherein also there is a mention of the Will of the deceased Major M.S.N. Dutt. The contention of the respondent Nos. 2 and 3 that they were never aware of the Will of their father is clearly not tenable.
64. Thus, from the entire testimony, it is quite evident that the Will dated 09.06.1992, Ex.PW1/2 is the last genuine Will executed by deceased Major M.S.N. Dutt. Thus, the Issue No. 1 is accordingly decided in favour of the petitioners.
Issue No. 2: -
Whether the probate petition is not maintainable in the present form? OPD.
65. The onus to prove that the present petition is not maintainable in its present form was on the respondent Nos. 2 and 3 who failed to adduce evidence or to explain the grounds on which the objection in regard to the maintainability of the petition has been taken. The issue is, therefore, decided against the respondent Nos. 2 and 3.
Issue No. 3: -
Whether the petition is no barred by limitation? OPP.
66. A plea has been taken by the respondent Nos. 2 and 3 that the probate petition in respect of the Will dated 09.06.1992 is hopelessly barred by limitation. However, Article 137 of the Schedule to the Limitation Act, 1963
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67. The cause of action thus, arose in the year 2010 and the present petition has also been filed on 27.09.2010 which is well within the period of limitation and as has been held in the cases of Kunvarjeet Singh Khandpur vs. Kirandeep Kaur, 2008 (8) SCC 463 and Krishna Kumar Sharma vs. Rajesh Kumar Sharma, (2009) 11 SCC 537.
68. It is thus, held that the present petition has been filed well within the limitation. The issue is decided accordingly against the respondent Nos. 2 and 3.
Issue No. 4: -
Relief.
69. In view of the findings on the Issue Nos. 1 to 3, the present petition is allowed and the Probate of the Will dated 09.06.1992 annexed with the present petition is hereby granted to the petitioners.
70. Petitioner shall furnish Administrative Bond with one Surety to the satisfaction of the learned Joint Registrar General of this court.
71. On payment of the requisite court fee and other formalities noted above, the Probate in respect of the Will dated 09.06.1992 shall be issued by the Registry.
72. The petition stands allowed and accordingly disposed of in the above terms.
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73. List before the Joint Registrar on 18.07.2024, for depositing of the bond.
(NEENA BANSAL KRISHNA) JUDGE JULY 08, 2024 S.Sharma
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