R P KHOSLA Vs. GENERAL PUBLIC

JUDGEMENT

(1.) This is a petition under section 276 read with proviso to section 273 and section 300 of the Indian Succession Act, 1925 , for the grant of probate in. respect of Will dated June 6, 1986, of Narain Dass Kapoor, who died on June 24, 1988, leaving behind two daughters Mrs. Shakuntla Khosla respondent No. 1, and Mrs. Surinder Dhawan, respondent No. 2, and a son Jagmohan Kapoor, respondent No. 3. Under the Will, the petitioner Mr. Justice' R.P. Khosla, a retired Judge of this Court, who is the husband of Mrs. Shakuntla Khosla is appointed as an executor. The present petition has been made by Mr. R.P. Khosla as executor under the Will. As the Will relates to property situated in the States of Punjab, Jammu & Kashmir and Delhi, the petition has been made before this Court. According to the petitioner, the Will dated June 6, 1986, is the last valid Will made by the testator.

(2.) The petition has been contested by Jagmohan Kapoor, respondent No. 3. In the written statement, it has been denied that the deceased executed his last Will and Testament dated June 6, 1986, or that he ever appointed the petitioner as the executor under any such Will. The respondent denied the execution, genuineness, attestation, legality and validity of the said Will. It was further pleaded that the Will purports to deal with Mitakshra comparcenary property. The comparcenary consisted of Narain Dass Kapoor and his son Jagmohan Kapoor respondent No. 3. They had equal shares in the said property of the coparcenary and Narain Dass Kapoor could not possibly make a Will in respect of the property exceeding his 1/2 share. It was pleaded that the Will, in question, was unnatural and surrounded with suspicious circumstances. According to the respondent, Narain Dass Kapoor executed a Will dated October 17, 1981, by which he bequeathed all his properties, of whatsoever nature, moveable or immoveable, and wheresoever situated including personal or self-acquired as well as ancestral or joint Hindu family properties in favour of his only son respondent No.3. The respondent further pleaded that the properties mentioned at serial No. 9 in.Annexure 'B', annexed with the petition, namely, a plot in New Friends Colony, New Delhi, also belonged to Mitakshra coparcenary family of the deceased Narain Dass Kapoor and his son Jagmohan Kapoor. Execution of the Will was also assailed on the ground that the purported execution was under undue influence, coercion and/or fraud practised upon the testator by the petitioner and/or his wife. It was also pleaded that the petitioner could not have been appointed as an executor, being himself an old person with an ailing health.

(3.) In the rejoinder filed by the petitioner, the averments of the respondents were controverted and it was stated that the testator first executed a Will dated January 18, 1985. Under that Will, the testator bequeathed his property equally amongst his three children, namely, the two daughters and the son. That Will was registered with the Sub-Registrar. It was further stated in the rejoinder that the testator was later persuaded to give 1/2 of the ancestral immoveable property to the objector and his remaining 1/2 to his two daughters i.e. 1/4th each and to give effect to this decision the testator executed the last Will dated June 6, 1986. With regard to the plot in New Friends Colony, New Delhi, it was pleaded that the same was personal property of the deceased Narain Dass Kapoor as distinguished from his ancestral property. The following issues were framed :