Sh. Suraj Prakash Singh vs Smt. Kamlesh Prakash and Others

V.K. Jain, J.—The learned Counsel for the plaintiff gives up Defendants No. 5 and 6, who are stated to be tenants in one of the property, subject matter of the suit. Their names are deleted from the array of parties. Amended memo of parties be filed.

IA No. 5340/2010

This is an application under Order XII Rule 6 of the Code of Civil Procedure. The admitted position is that late Sh. Manmohan Prakash was the sole owner of properties No. D-2/2586, Vasant Kunj, New Delhi and C-13, Green Park Extension, New Delhi. Sh. Manmohan Prakash died on 5th January 2006, leaving the plaintiff, who is his son, Defendant No. 1, who is his widow, Defendant No. 2, who is his other son and Defendant No. 3, who is his daughter, as his Class 1 legal heirs. The case of the plaintiff is that late Sh. Manmohan Prakash died intestate. A probate petition being Probate Case No. 195/2001 was filed by late Sh. Manmohan Prakash in his lifetime seeking probate of the Will, which is father had executed in his favour. The probate was granted in favour of late Sh. Manmohan Prakash on 19th April 2004. According to the plaintiff, Defendant No. 1 in this suit Smt. Kamlesh Prakash filed an application in the above referred probate case admitting therein that her husband had died intestate. The plaintiff has accordingly sought a preliminary decree of partition in view of the admission made by Defendants 1 to 3.

The application has been opposed by Defendants No. 1 and 2. In their reply, they have admitted that property No. C-13, Green Park Extension, New Delhi was owned exclusively by late Sh. Manmohan Prakash. They have claimed that in the lifetime of late Sh. Manmohan Prakash the plaintiff as well as Defendants No. 2 and 3 had executed relinquishment deed with respect to property No. C -13, Green Park Extension, New Delhi as also with respect to property No. D-2/2586, Vasant Kunj, New Delhi. It is also alleged that late Sh. Manmohan Prakash executed a Will in his lifetime on 20th May 2005 whereby both the properties, subject matter of this suit were bequeathed to Defendant No. 1 Smt. Kamlesh Prakash.

As far as property No. C-13, Vasant Kunj, New Delhi is concerned, admittedly that has already been sold by Defendant No. 1 to Defendant No. 4. The plaintiff has sought declaration to the effect that the sale deed executed in favour of Defendants No. 1 to 4 is null and void. The relief of declaration being a discretionary relief, even if plaintiff is able to prove that he had one fourth share in the property, subject matter of the sale deed, the Court may not grant him the declaration sought by him and may instead direct payment of one fourth of the sale consideration to him. The Court may also grant him some other relief different from the relief of the declaration sought by him with respect to the aforesaid sale deed. Moreover, this is also the case of Defendants 1 and 2 that the plaintiff was given another property in lieu of his share in Vasant Kunj property. In these circumstances, the learned Counsel for the plaintiff does not press this application qua property No. D-2/2586, Vasant Kunj, New Delhi.

It has been alleged in the written statement of Defendants 1 and 2 that property No. C-13, Green Park Extension, New Delhi was inherited by late Shri Manmohan Prakash from his father by virtue of a registered Will executed in his favour. A probate in respect of the above- referred Will has already been granted on a petition which was filed by late Shri Manmohan Prakash. Since property No. C-13, Green Park Extension, New Delhi admittedly belonged to the grandfather of the plaintiff and was bequeathed to his father, the plaintiff had no right, title or interest in this property in the lifetime of his father. Therefore, the Relinquishment Deed, if any, executed by him in favour of his father, would be meaningless and would not deprive him of a share in the aforesaid property, on the death of his father. Assuming however that the plaintiff had a share in property No. C-13, Green Park Extension, New Delhi, which he relinquished in favour of his father in his lifetime, that would not take away his legal right to a share in that property on the death of his father, in his capacity as one of his Class I legal heirs. Of course, this is on the assumption that either late Shri Manmohan Prakash died intestate or he did not execute a valid Will in respect of the aforesaid property.

Coming to the property No. C-13, Green Park Extension, New Delhi, I find that the Will setup by Defendant No. 1 purports to be attested by only one witness. Section 63 of Indian Succession Act, to the extent it is relevant, provides that an unprivileged Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

In Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria and Others, and Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, , Supreme Court held that the requirement of attestation of a Will by two or more witnesses is mandatory.

In Arun Kumar Sharma Vs. Ashok Kumar Sharma and Others, , the Will was attested by only one witness. No name was written at serial No. 2 in the column of witnesses. The Will was executed on 23.05.1983 and attested by Notary Public on 27.05.1983. The Trial Judge declined to grant the probate of the Will on the ground that application attested by only one witness, it did not fulfil the mandatory requirement of Section 63(c) of Indian Succession Act, 1925. The decision of the Trial Court was upheld by this Court. In the case before this Court, a perusal of the photocopy of the Will shows that it purports to be attested by only one witness and neither any name has been written nor any signature appears at serial No. 2 of witnesses.

Admittedly late Sh. Manmohan Prakash was not a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea. Therefore, the Will executed by him is an unprivileged Will within the meaning of Section 63 of Indian Succession Act and, therefore, it was required to be attested by two or more witnesses. If a Will is attested by only one witness, this is not a valid Will in the eyes of law and will not confer any right, title or interest on legatee under the Will. In these circumstances, it is difficult to dispute that in view of the admission to the effect that property No. C -13, Green Park Extension, New Delhi was owned by late Sh. Manmohan Prakash, who died leaving behind the plaintiff and Defendants No. 1 to 3 as his only Class 1 legal heirs, the plaintiff has one fourth share in property No. C -13, Green Park Extension, New Delhi. Accordingly a preliminary decree for partition is passed declaring that the plaintiff and Defendants No. 1 to 3 own one fourth share each in property No. C-13, Green Park Extension, New Delhi.

The application stands disposed of.

IA No. 8584/2009

The learned Counsel for the plaintiff as also the learned Counsel for Defendants No. 1 to 3 agree that they will not create any third party interest in property No. C-13, Green Park Extension, New Delhi, during pendency of the suit.

As regards Vasant Kunj property, the admitted position is that the sale deed was executed only by Defendant No. 1 in favour of Defendant No. 4. The Will purporting to have been executed by late Sh. Manmohan Prakash in favour of Defendant No. 1 has been found to be an invalid Will having not been attested by two or more witnesses. Therefore, prima-facie it appears that Defendant No. 1 had no right to sell the aforesaid property to Defendant No. 4 without consent of other legal heirs of late Sh. Manmohan Prakash. Admittedly, no such consent was obtained from the plaintiff before selling the aforesaid property. The case of Defendant No. 1 in respect of this property is that the plaintiff had taken other properties of the deceased in lieu of his share in Vasant Kunj property. This, however, is disputed by the plaintiff. In these circumstances, it will only be appropriate that Defendant No. 4 is restrained from creating any third party interest in property No. D-2/2586, Vasant Kunj, New Delhi. Ordered accordingly.

CS(OS) 1230/2009

The parties are directed to appear before Delhi High Court Mediation and Conciliation Centre at 3:00 PM on 3rd March 2011 in order to make an effort for an amicable resolution of all their disputes. Delhi High Court Mediation and Conciliation Centre is requested to make the services of a Senior Advocate available to the parties for mediation.

List the matter before Court on 5th August 2011.