ANIL KUMAR KOHLI Vs. GENERAL PUBLIC

JUDGEMENT

(1.) THIS appeal is directed against the order dated 25.1.2006 passed by the Civil Judge (Senior Division), Gurgaon, (exercising the powers under the Indian Succession Act, 1925), allowing the application of the appellant filed under Section 276 of the Indian Succession Act, (for short, 'the Act'), for the grant of probate certificate in favour of the appellant as well as Respondent Nos. 2 to 4. Briefly stated the facts of the case are that the appellant filed a petition under Section 276 of the Act, pleading that his father Krishan Lal Kohli having sound disposing mind, out of his free will, executed a Will on 06.4.1988 and got it registered before the Sub Registrar, Gurgaon vide Vasika No. 8 dated 6.4.1988 of the property in question, namely, plot No. 164; Udyog Vihar, Gurgaon to the extent of 1/3rd in his favour, 1/3rd in favour of the other son Harsh Kohli and 1/3rd in favour of his wife Smt. Krishna Kohli. It was also alleged that his mother Smt. Krishna Kohli, to whom 1/3rd share was given in the property in question, died on 30.8.1990. It is also alleged that after the death of her mother, her share had devolved upon both the brothers, namely Anil Kumar Kohli and Harsh Kohli in equal share, therefore, they have become owners of the property in question to the extent of share each in terms of the Memorandum of Settlement dated 26.9.1992 executed by both the brothers. Para No. 5 of the petition needs to be mentioned in this regard, which is reproduced as under :

(2.) SINCE the appellant had sought certificate of probate of the Will dated 6.4.1988 in his favour as well as in favour of his brother Harsh Kohli in respect of the property in question on the basis of Memorandum of Settlement dated 26.9.1992, therefore, it would be appropriate to reproduce the said Memorandum of Settlement as well. "This Memorandum of Settlement is made at Delhi On this the 26th day of September, 1992 between Harsh Kohli aged 39 years, resident of 11602, Letterman way, Graters Burl, MD 20878, USA and Shri Anil Kumar Kohli aged 49 years both sons of late Shri Krishan Lal Kohli r/o 164 Udyog Vihar, Gurgaon, hereinafter called the 1st Party and Second Party respectively. Whereas in terms of the Will dated 6.4.1988 executed by Shri Krishan Lal Kohli son of Shri Gurditta Mal Kohli, r/o 164, Udyog Vihar, Phase-I, Gurgaon duly registered with the Sub Registrar, Gurgaon, both the first and second party who are real brothers and sons of late Shri Krishan Lal Kohli acquired 1/3rd share each in the said industrial plot No. 164. And whereas due to unfortunate demise of Smt. Krishna Kohli, mother of first and second party 1/3rd share of Smt. Krishna Kohli devolved upon Shri Harsh Kohli. And whereas out of love and affection, Shri Harsh Kohli being the first party to this Memorandum of Settlement has voluntarily decided to execute this Memorandum of Settlement so that this additional 1/3rd share which accrued to him as per Will desired to be shared equally with Anil Kumar i.e. to say after this memorandum of settlement Harsh Kohli and Anil Kumar Kohli shall become the owner to the extent of share each. Now this Memo of settlement witness the as follows : 1. That Harsh Kohli first party who has inherited 1/3rd addl. share which was previously in the name of Smt. Krishna Kohli in the said Industrial Development Corporation, Udyog Vihar, Tehsil and District Gurgaon shall be shared equally with Anil Kumar Kohli are now having share each in the said industrial plot as referred to above bequeathed by late Shri Krishan Lal Kohli in favour of the first party and second party in terms of the Will dated 6.4.1989 duly registered with the Registrar, Gurgaon.

(3.) NOTICE of the petition was given to the General Public by way of publication in News Paper "Dainik Bharat Desh Hamara" dated 27.9.2000, but despite that, no one had put in appearance, therefore General Public was proceeded against ex parte.