RADHIKA KHANNA Vs. STATE

JUDGEMENT

(1.) Nand Lal Aggarwal, applicant filed this application on 17/12/1998 alleging that the case set up by Ms. Radhika Khanna (hereinafter referred to as 'petitioner') in the petition filed under Sections 276 and 278 of the Indian Succession Act, 1925 which was allowed by the order dated 7/03/1994, is that Smt. Kamla - Khanna, her mother and wife of S.D. Khanna died on 12/06/1983 leaving behind a Will dated 6/03/1981 in her favour. It is further alleged that petitioner's father S.D. Khanna filed a petition for grant of probate before the District Judge, Delhi and her interest in that petition was not properly looked after by him. In response to peti- tion, S.D. Khanna filed 'No Objection/reply' wherein it has been stated that he is in possession of Will dated 26/03/1979 left behind by his wife under which he is the beneficiary of her estate. He has further stated that he did not know about the Will dated 6/03/1981 and existence thereof was disclosed to him by his brother T.D. Khanna towards the end of 1987. He withdrew the petition filed for grant of probate before the District Judge, Delhi as one of the assets was located outside Delhi and petitioner was nearing attainment of majority and he did not want to deprive her of the legal rights accruing to her under the Will dated 6/03/1981.

(2.) It is alleged that sometime in March 1987 said S.D. Khanna applied to Haryana Urban Development Authority for transfer of Plot No. 64-P, Sector 6, Panchkula in his name on the strength of Will dated 26/03/1979. Thereafter on 14/10/1987 S.D. Khanna entered into an agreement of sale with the applicant agreeing to sell the said plot for a sum of Rs. 4 lakhs and received Rs. 40,000.00 towards part payment. Date of execution of transfer papers was fixed as 31/12/1987. Inspite of repeated requests S.D. Khanna did not pursue the application for transfer of said plot in his name as price thereof had risen. Instead a notice was got sent through Sh. S.K Khanna, Advocate on 25/01/1988 on behalf of petitioner stat- ing that said plot had been inherited by two legal heirs of Smt. Kamla Khanna, i.e. the petitioners and S.D. Khanna and under the agreement of sale the interest of petitioner, then minor was being jeopardised. In the notice there was no mention of al- leged Will dated 6/03/1981. It is further stated that after S.D. Khanna did not ex- ecute/complete the documents for transfer of plot, the applicant was left with no alternative but to file a suit for specific performance being Suit No. 266/90 on 5/03/1990 against him in the Court of Senior Sub Judge, Ambala having jurisdiction in the matter. S.D. Khanna avoided to receive the summons and finally appeared in court on 30/01/1992 but did not file written statement till 22/08/1994. During the pendency of suit, the petitioner applied to Estate Officer, Panchkula for transfer of said plot in her name on 16/08/1991. She filed her affidavit stating that she alongwith S.D. Khanna were the legal heirs of Smt. Kamla, deceased, S.D. Khanna also filed affidavit stating that Smt. Kamla Khanna had left behind him and the petitioner as her legal heirs. In the affidavit he further stated that he had no objec- tion if the allotment/ownership of plot was transferred in the name of petitioner. Ac- cordingly, transfer of said plot was permitted in the name of petitioner. It is pointed out that neither in the application seeking transfer of plot in. the name of the petitioner nor in documents filed therewith or two affidavits of petitioner and S.D. Khanna, there was any reference to the Will dated 6/03/1981. It is alleged that on coming to know about transfer of plot in the name of petitioner, the applicant moved the Senior Sub Judge, Ambala and on 31/01/1992 an order of status quo was granted. The petitioner was also allowed to be impleaded as defendant No. 3 in the suit on 2 5/03/1992. Probate Case No. 16/92 was filed in April 1992 by the petitioner in connivance with S.D. Khanna without disclosing the above facts and propounding a fabricated will dated 6/03/1981 alleged to have been executed by Smt. Kamla Khan- na in Nigeria. The petitioner who avoided service of summons was served by publica- tion in Tribune for 25/04/1994. Written statement was thereafter filed by the petitioner after the plot was transferred in her name by HUDA and order dated 7/03/1994 granting probate on the basis of said fabricated Will made in her favour. In Para No. 13 of the application, the circumstances on the basis whereof Will dated 6/03/1981 is alleged to be fabricated, have been set out. It is asserted that ap- plicant has interest in the estate of deceased and he is entitled to apply for revocation of the order dated 7/03/1994. It was prayed that the order dated 7/03/1994 may be revoked/recalled.

(3.) Ms. Radha Khanna contested the application by filing reply. By way of prelimi- nary objections, it is alleged that Nand Lal Aggarwal, applicant has no right, title or in- terest in the properties of Smt. Kamla Khanna, deceased. It is alleged that assuming that any agreement to sell was executed by S.D. Khanna, the same is not binding upon her as she had not attained majority on 14/10/1987. Otherwise also S.D. Khan- na could not have sold the plot which had been bequeathed by virtue of will dated 6/03/1981 in her favour. It is further alleged that applicant had come to know on 22/08/1994 itself on which date written statement was filed by her, that she had been granted probate vide order dated 7/03/1994 by the court and this applica- tion is not maintainable having been filed at a very belated stage. On merits, it is fur- ther alleged that Will dated 6/03/1981 was executed by Smt: Kamla Khanna at Kaduna, Nigeria and was duly attested by two witnesses. She through Sh. S.K. Khanna, Advocate had informed the applicant that she is her legal heir and agreement to sell which was against her interest, was not binding on her. She after attaining the age of majority applied for mutation of Plot No. 64-P to the Estate Officer and got it trans- ferred in her name after filing suitable documents. Applicant has no right whatsoever to challenge the Will dated 6/03/1981. It is emphatically denied that the Will dated 6/03/1981 is fabricated one, as alleged.