D.A.V. Higher Secondary School vs University of Delhi and Another

Sanjiv Khanna, J.—Late Pandit Manmohan Kishan Kaul (hereinafter referred to as the Testator, for short) was a bachelor and was a man possessed of considerable wealth. He expired on 9th February, 1970. In the same year, University of Delhi filed a probate petition based on Will dated 18th January, 1963 and Codicil dated 18th April, 1969. The probate petition was opposed by nephews and other relatives of late Mr. Manmohan Kishan Kaul but was allowed by a detailed judgment dated 28th September, 1972. One of the relatives, Mr. Jagdish Kumar also filed an appeal before a Division Bench of this Court but the same was dismissed on 21st December, 1972.

As per the Will dated 18th January, 1963, the testator had divided his immovable properties into three parts, namely, Schedule A, B and C. Properties mentioned in Schedule A were bequeathed to the University of Delhi, subject to the condition that out of the income from the aforesaid properties, a sum of Rs. 100/- p.m. Would be paid by the University to the Blind Relief Association. Schedule A of the Will reads as under:

Schedule ''A''

Building known as "Manmohan building" consisting of shops and residential quarters situated in Khewat No. 4, Khatauni No. 12, Khasra No. 75/2 vide Jamabandi year 1928-29 within the boundaries of the Village Yusuf Sarai, Union Territory of Delhi measuring two Bighas 12 biswas and bounded as under:

East : Houses built on land previously belonging to Pandit Lila Ram of Masjid Moth.

West : Qutab Mehrauli Road.

North : House of pt. Muni Lal and his brother.

South : Land of Budhram.

Residential house situated in Block ''P'' plot No. 53 in D.L.F. Colony known as New Delhi South Extension Scheme Part II.

Shop site No. 45 in Seproon Colony District Patiala Punjab State, Measuring 20'' x 30'' (600 square feet).

Bungalow Plot No. 9 measuring 9500 sq. ft. Block No. ''A'' in Saproon Colony District Patiala Punjab State.

Properties mentioned in Schedule B were bequeathed to Shiv Mandir situated at Yusuf Sarai with the stipulation that the property shall belong to the deity and the building will be used as a sarai to provide free accommodation to the patients and/or their attendants and relatives who are undergoing treatment at Safdurjung hospital or AIIMS. Properties mentioned in Schedule C were bequeathed to Arya Samaj Mandir, Yusuf Sarai to be used in furtherance of it''s objectives.

Certain other bequests were made in respect of cash and movable properties with the direction that after meeting the said bequests, the entire residuary shall devolve on University of Delhi to be utilised for providing scholarships to deserving and needy students. These scholarships were to be known as "Manmohan Kishan Kaul Scholarship". Income from the properties mentioned at Schedule A were also to be utilised for the said purpose.

By the Codicil dated 18th April, 1969, the testator partly modified his earlier Will dated 18th January, 1963 with a stipulation that the properties mentioned at serial Nos. 1 and 2 of the Schedule A above, shall be maintained by the University of Delhi for a period of 30 years but on the properties mentioned at serial Nos. 3 and 4, there was no restriction as these were open and unbuilt plots. The Testator in the codicil specifically confirmed the bequest made in favour of the University of Delhi by the Will. The bequest made to Shiv Mandir in respect of the Sarai was withdrawn and the said property was to devolve upon a trust with one Mr. Narender Kumar Pandey, Municipal Councillor, as a Trustee to maintain the property as a Sarai for providing free accommodation to patients and their attendants/relatives. The property was to remain a Trust property. Certain other changes in the bequest were made but they are not relevant for the purpose of deciding this Appeal.

As stated above, inspite of objections and vehement contest by relatives of the testator, University of Delhi was granted probate of both the Will dated 18th January, 1963 and Codicil dated 18th April, 1969 by Judgment dated 28th September, 1972.

In 1989, 19 years after the death of the testator and 17 years of grant of probate, an application, I.A. No. 633/1989, under Sections 262 and 263 of the Indian Succession Act, was filed in the Probate Case by D.A.V. Higher Secondary School, Yusuf Sarai, New Delhi (hereinafter referred to as the School, for short), the appellant herein, for revocation of the probate granted in favour of the University of Delhi. The respondent propounded another Codicil dated 14th January, 1970 purportedly executed by the Testator. By the said codicil the testator had revoked the bequest of Manmohan Building in favour of University of Delhi and the said property was to devolve upon the school to the exclusion of the university. After the application was filed, issues were framed, evidence was led and by the impugned Order dated 28th February, 1996, the said application has been dismissed.

Learned Counsel for the appellant submitted that no limitation period has been specified for filing an application for revocation of probate. It was further stated that the appellant was not aware and had no knowledge of the Codicil dated 14th January, 1970 and thus the delay in filing the application for revocation stands fully explained. He emphasised that the Codicil was registered and the same should have been accepted, specially when no evidence in rebuttal was led by the University of Delhi.

We have examined the contentions of the learned Counsel for the appellant and also heard learned Counsel for the respondent.

In order to explain the delay, how and when the school came across the alleged codicil, in the application I.A. No. 633/1989, it was stated as under:

That the applicant some time in middle of December, 1988 came to know that the deceased Pandit Manmohan Kishan Kaul made a second Codicil amending the will dated 18-1-1963 and first codicil dated 18-4-1969 revoking the devise made in para-2 of the said will and the first codicil dated 18-4-1969, in favour of Delhi University, Delhi.

That on coming to know about the same, the applicant made inspection of the record of Sub-Registrar, Delhi at Kashmeri Gate and discovered the second codicil dated 14-1-1970 whereby the devise made in favour of Delhi University was revoked and instead it was bequeathed in favour of the applicant i.e. D.A.V. Higher Secondary School, Yusuf Sarai, New Delhi.

On this basis the appellant sought to explain the delay and also to remove suspicion and doubts about genuineness of the codicil that had been produced 19 years after the death of the testator. The application was supported by affidavit of Mr. Narender Kumar Pandey, the same person who was appointed as a Trustee of the property to be maintained and used as a Sarai in the Codicil dated 18th April, 1969. Thus a clear and unambiguous statement was made that prior to middle of December, 1988 the school was not aware about the codicil dated 14th Feb, 1970 partly revoking the bequest in favour of University of Delhi and making the bequest of Manmohan Building in favour of the school.

In his evidence, Mr. Narender Kumar Pandey admitted that he was working as a teacher in the said School and knew the Testator since 1947 and Manmohan Building had been constructed in 1934-35. Originally the School was housed in Manmohan Building and continued there till 1939, when it was shifted to its present site pursuant to lease granted by the Governor General and Councellor in 1948. In his cross-examination, Mr. Pandey has admitted in his evidence that he had met the Testator one month and also three days before his death but stated that the Testator did not mention to him that he had bequeathed Manmohan Building to the School and had told him that he would not like to disclose the bequest. On the face of it the last part of the statement is false and cannot be accepted. Mr. Pandey was appointed as a trustee for the sarai under the codicil dated 18th April, 1969. Necessary and ordinary presumption is that the testator must have spoken to Mr. Pandey and taken him into confidence before appointing him as a trustee in his codicil. It is apparent that the testator relied upon and had faith in Mr. Pandey and therefore had appointed him as a trustee. It is difficult to perceive and accept that the testator had never spoken and told Mr. Pandey about his Will and his second codicil. Mr. Pandey was admittedly associated with the management of the school long before the death of the testator. He accepted the fact that the Testator had told him that his nephews were not good persons and he was not satisfied with them. In case the testator had executed the second codicil dated 14th Feb., 1970 making bequest in favour of the school instead of Delhi University, he would have informed and spoken to Mr. Pandey, man on whom the testator had the utmost trust and confidence and therefore his choice as a sole trustee. The delay in propounding and production of the second codicil dated 14th Feb, 1970 is not satisfactorily explained. Rather doubt and suspicion surrounding the codicil gets confounded and stronger.

The Codicil dated 14th January, 1970 is purportedly attested by Mr. Kanwar Singh Sharma and Mr. Prem Chand Jain. Mr. Narender Kumar Pandey in his cross-examination admitted that he knew Mr. Kanwar Singh Sharma, since 1947 and he used to meet him occasionally. He also admitted that Mr. Kanwar Singh Sharma was aware of his association with the School and that he was connected with it''s administration. Similarly, he stated that Mr. Prem Chand Jain knew him since 1960, he had attended the wedding of his son in 1984 and used to meet him occasionally. He also knew about his association with the School and the fact that he was looking after the administration of the School. Mr. Narender Kumar Pandey further stated that the said witness had told him on three-four occasions about the execution of the alleged Codicil dated 14th January, 1970 and the fact that as per the said Codicil, Manmohan Building has been bequeathed to the School. The two witnesses had informed him that the Codicil had been registered in the Office of the Sub-Registrar and after the death of the Testator, Mr. Narender Kumar Pandey had orally informed the functionaries of the School about the statements made by Mr. Kanwar Singh Sharma and Mr. Prem Chand Jain. He stated that as no written document was available, nothing was done and the school had remained quite. The statements made by Mr. Pandey are contrary to the averments made in paragraphs 4 and 5 of the application that the school was not aware and had no knowledge about the alleged codicil dated 14th February, 1970. It is also un-natural for the school and also for Mr. Pandey not to take steps and establish any claim on behalf of the school on the basis of the alleged codicil inspite of knowing that Delhi University has made claim on the building that stands bequeathed to the school. He was confronted with the averments made in the application, I.A. No. 633/1989 wherein the facts as to how the School came to possess certified copy of the alleged Codicil dated 14th January, 1970 were not mentioned. He admitted that the application was silent but was unable to give any explanation.

Mr. Pandey further stated that one of the nephews of the Testator had furnished certified copy of the Codicil dated 14th January, 1970 in the office of the School and thereafter the Managing Committee in its meeting held on 13th January, 1989 discussed the matter and steps were taken. However, he could not give the name of the nephew. He further stated that he had known one of the nephews of the Testator, namely Mr. Manharan very well but the said nephew had never mentioned about the Codicil dated 14th January, 1970. The relatives of the testator had lost to the University of Delhi when probate was granted on 28th Sept., 1972 and confirmed in appeal on 21st December, 1972. Thereafter nothing prevented and there was no reason why the relatives of the testators would have withheld the second codicil for 17 years. The relatives of the testators had a cause against the Delhi University and if the second codicil was genuine, probability and common sense suggests that they would have helped and instigated the school. Mr. Pandey has himself admitted that he was close to of the nephews. The second codicil was propounded and suddenly surfaced after 19 years only when Delhi University started eviction proceedings against the shopkeeper. This becomes apparent from the statement of Mr. Prem Chand Jain, one of the alleged attesting witnesses to the second codicil. It is only thereafter that application, I.A. No. 633/1989 was filed.

Now let us also examine the statements made by the two witnesses, namely, Mr. Kanwar Singh Sharma (PW-2) and Mr. Prem Chand Jain (AW-3). Mr. Kanwar Singh Sharma stated that he knew the Testator and had witnessed the document by which he had bequeathed the property to the School. He admitted the signatures of the Testator on the document as well as the fact that Mr. Prem Chand Jain had signed the document as a witness along with him. He further stated that they had gone to the Sub-Registrar''s Office for this purpose. Mr. Kanwar Singh Sharma has stated that after execution of the codicil and also after the death of the Testator, he had informed several persons who were associated with the School about the bequest of the property in question in favour of the School. Mr. Prem Chand Jain (AW-3) has stated that though he has studied upto Class VIII and cannot read or write in English but the testator had told him that he was bequeathing the property at Yusuf Sarai to the School and had earlier bequeathed the said property to University of Delhi. He has further stated that the testator had stated that he would like to give the property to the School as the institution was nearby. He however submitted that he had not mentioned to anybody about the Will-codicil executed by the Testator to which he was one of the witness and he was for the first time questioned by some shopkeepers in the Yusuf Sarai market when he was admitted in Sir Ganga Ram Hospital. He further stated that he has no knowledge about the original Will and the Codicil dated 18th April, 1969.

Examination of the statements of the three witnesses minutely confirm the suspicion and doubt that the second codicil has been propounded to obstruct and prevent Delhi University from taking further steps against the shopkeepers. Instead of uncovering and explaining the factual matrix and sudden appearance of the second codicil, after lapse of nearly two decades, the statements of the witnesses have only confirmed the doubt. The story concocted by the school to justify its claim is unbelievable and untrustworthy.

The delay in propounding and moving the application relying upon the alleged codicil purportedly dated 14th January, 1970 of 19 years certainly raises grave suspicion and doubt about its genuineness. It was the duty of the appellant to dispense and clear doubts and discharge the onus by removing suspicion and explaining it''s conduct and why the school and witnesses had not taken any steps. This required explanation, why there was extraordinarily long delay in relying upon the alleged codicil dated 14th January, 1970. The said suspicion has not been dispelled. In the application filed u/s 262 and 263 of the Act no attempt was made whatsoever to explain the delay. In the evidence also no explanation has been given. Rather it appears that the appellants and the School authorities and its functionaries were in touch with the two alleged witnesses of the second codicil. Mr. Narender Kumar Pandey was also in regular touch and was meeting the two witnesses. No steps whatsoever was taken to rely upon the second codicil. Silence and inaction in the circumstances and with knowledge about the claim made by Delhi University, confirms and cements the doubt and suspicion.

The testator had left the original Will dated 18th January, 1963 and the codicil dated 18th April, 1969 with his bankers. Admittedly, the alleged codicil dated 14th January, 1970 was not available and produced by the said bankers. It is an admitted case that the testator had differences and was not interested in making any bequests in favour of his nephews and other relations. He had taken necessary precaution to deposit the original Will as well as the codicil dated 18th April, 1969 with his bankers, least there be any doubt about their genuineness. The bankers being a third party having no interest in the estate as such. The purported codicil dated 14th Feb., 1970 was not given and handed over to the bankers. The original of the alleged codicil dated 14th Feb., 1970 has not been produced and brought on record. What has been produced is a certified copy of the alleged registered codicil. The advocate who is said to have drafted the second codicil on the instructions of the testator was not examined.

Having regard to the cumulative effect of the above facts, it is held that the appellant has not been able to establish and prove that the alleged codicil dated 14th January, 1970 is genuine and was executed by late Pandit Manmohan Krishan Kaul. We entirely agree with the findings recorded by the learned Single Judge. We find no merit in the Appeal and the same stands dismissed.