C K KHAITAN Vs. PRIYA PRASAD

JUDGEMENT

(1.) This appeal has been preferred against the judgment and order dated 11.12.1996, passed by 1 st Additional District Judge, Dehradun, in O.S. No. 21 of 1998, Priya Prasad and another Vs. Nawal Kishore Khaitan and another, whereby the petition was allowed and a Probate was ordered to be issued in favour of the respondents 1 and 2 in respect of the Last Will of late Smt. Raja Devi Khaitan dated 29-3- 1983 with regard to her estates/properties mentioned therein. Briefly stated the facts of the case giving rise to this appeal, are that respondents 1 and 2, Priya Prasad and Sri Bonod Kumar filed an application for grant of probate of the Will dated 29-3-1993 of late Smt. Raja Devi Khaitan. The application was registered as O.S. No. 21/1988. The ground taken in the said application is that Smt. Raja Devi Khaitan died at Dehradun on 8 th April 1987 at about 10.45 A.M. At the time of her death, Smt. Raja Devi Khaitan had a fixed place of residence at 176-A, Rajpur Road, Dehradun and she left immovable property in Dehradun and movable property in Dehradun and at other places in India. Smt. Raja Devi Khaitan during her life time had executed her last will on 29-3-1983. The respondents 1 and 2 have been named as the Executors of the said Will executed by late Smt. Raja Devi Khaitan. The Will executed by late Smt. Raja Devi Khaitan was duly attested by the witnesses Smt. Asha Jain R/o 34, Anand Lok, New Delhi-49 and Sri Prem Nath Seth R/o 7, Teen Murthi Lane, New Delhi. All the assets and liability which the deceased possessed of or was entitled to at the time of her death and which have come to the respondents 1 and 2, has been set-forth in Annexure- B to the petition. The value of total assets of late Smt. Raja Devi Khaitan is Rs. 53,99,949/- and the liabilities are of Rs. 7,20,000/-. Thus the value of the assets which will come in the hands of respondents 1 and 2 is Rs. 46,79,949/-. It is alleged by the applicants/respondents 1 and 2 that they are the executors of the Will and they along with Sri Vinay Prasad S/o late Rai Ram Krishna Prasad are the sole beneficiaries under the Will and the applicants/respondents 1 and 2 will administer according to law all the assets which by law will come their hands and will execute a true and perfect inventory of the said estate and render a just and true account thereof whenever required by law so as to do. It is also alleged in the petition that no application has been moved in any other court or to any High Court for probate of any will of the deceased or Letter of Administration with or without the Will relating to the properties of the deceased Smt. Raja Devi Khaitan. It is further prayed in the petition that the petitioners/respondents 1 and 2 be permitted to pay out of the fund of the estate of deceased which will come in to their hands the duty that may be payable with regard to the estate of deceased and all costs, expenses and incidental to the petition.

(2.) The objectors Sri Nawal Kishroe Khaitan and Sri C.K. Khaitan filed objection and alleged that the Will dated 29-3-1983 is not the last will and testament of late Smt. Raja Devi Khaitan. The said Will was revoked by Smt. Raja Devi and another Will which was executed at Dehradun by Smt. Raja Devi in the 2 nd quarter of 1986, which was drafted by Sri V.K. Kohli Advocate, now counsel for the petitioners/respondents 1 and 2. Sri V.K. Kohli vide his bill dated 3.3.1986 submitted to late Smt. Raja Devi Khaitan and charged Rs. 550/- for his fee for the Will and simultaneously he drafted some trust deed for which he charged Rs. 447.50 for stamp papers and Rs. 500/- as his fee and he was paid the entire bill by cheque for which he issued a receipt and all these documents in original are in possession and power of Solicitor of Smt. Raja Devi at Delhi. It is the assertion of objectors/opposite parties that Smt. Raja Devi Khaitan had made another Will in March 1986 for which the counsel for the petitioners/respondents 1 and 2 has full knowledge whereby the Will of 1983 was revoked and now the counsel is hiding the Will of the year 1986. A separate application was filed that at the time of framing of issues, Sri V.K. Kohli Advocate, be examined as a witness, as per law the court can call a witness or call any document which will help in framing the issues, and after the evidence of Sri V.K. Kohli Advocate in Court, further steps would be taken to ascertain where the will of 1986 is lying. It was, therefore, alleged in the objection that since the Will of 1983 stood amended and revoked in 2 nd quarter of 1986, no probate can be granted of the said Will.

(3.) It is further case of the objectors that Smt. Raja Devi Khaitan died on 8.4.1987 and at that time applicant No.2, Binod Kumar broke open the lock of Almirah and removed all the papers and jewellery for which he submitted an application to Superintendent of Police, Dehradun and undertook to handover the jewellery to the heirs of Smt. Raja Devi Khaitan. He also prepared a list of jewellery which were took out from the Almirah of late Smt. Raja Devi Khaitan. The above contention in writing of the propounders of the Will clearly go to prove that there was no Will in their favour in 1983 and the opposite parties are informed that Smt. Raja Devi Khaitan torn that Will and now the Will propounded is a fabricated Will and which has been revoked in 1986.