Gur Prasad Gupta v. Shri Ram Prasad Gupta

judgment which show that the appellant has never challenged the contents and has, in fact, accepted all the factual contents stated in the Will dated 13.5.2002. These observations of the court below, which I accept and adopt, are contained in paras 30 to 31 of the impugned judgment and which read as under:- "30. It has been argued by the learned counsel of petitioner there was no change in circumstances due to which testaitrixwould execute a second Will dated 13.05.2002. Although, technically speaking, this argument should not be available to the petitioner once it is held that the first Will is not proved but I would deal with this argument assuming that the testatrix had executed the first Will dated 17.04.1987. By virtue of the Will dated 17.04.1987, the testatrix bequeathed her Va share in her Rajouri Garden plot to her son Ram Prasad and bequeathed a godown situated at Dilshad Garden to the petitioner Gur Prasad and his fatnify. She bequeathed the ground floor and Miani between the ground floor and the first floor to petitioner Gur Prasad and whereas, the first floor and its roof has been bequeathed to Ram Prasad. She gave her deposits, cash and jewellery to her husband Sh. Har Samp Gupta. By virtue of the Will dated 13.05.2002, she has bequeathed the roof and terrace of Rajouri Garden property to her son Ram Prasad and her grandson Sachin. The godown situated at Dilshad Garden has been bequeathed to Gur Prasad and his family and property situated at Banarsi Dass Estate to her husband Har Sarup Gupta. The roof over the first floor and the second floor of the property situated at Banarsi Dass Estate has been given to Ram Prasad and his son Sachin. The reasons for executing the second Will are mentioned in the recitals of Will itself One reason for execution of the second Will, as mentioned in the recitals, is that % share in the Rajouri Garden property, which the testatrix was having, was sold out and therefore, only roof and terrace were left with the testatrix. The second reason which prompted the testatrix to execute the second Will is that she wanted to give certain properties in charity. She has directed her son Ram Prasad and her grandson Sachin to devote 10% of their income for charitable purpose. She allowed the use of ground floor of the property at Banarsi Dass Estate by Gur Prasad Gupta on payment of Rs.6000/- every month for charitable purpose. The third reason for the execution of the Will as per recitals is that her husband had given Rs.l6 lakhs to Gur Prasad after selling Rajouri Garden property. Gur Prasad Gupta has nowhere allegedthat the assertions made in the recitals of the Will are incorrect. He has not disputed the fact that Rs.l6 lakhs were given to him. by objector Har Sarup Gupta after the sale of Rajouri Garden FAO No.462/2007 & FAO No.463/2007 Page 23 of25 property. In addition to the aforesaid, she might have executed the second Will to protect the interest of her husband Har Sarup Gupta so that he may not become shelterless, after her death.

¶31The learned counsel of petitioner has argued that the Will dated

13.05.2002 is not natural as the petitioner has been excluded from inheritance of property bearing No.3-B, Banarsi Dass Estate. Deprivation of the natural heir by the testatrix should not normally raise any suspicion because the whole idea behind the execution of the Will is to interfere with the normal line of succession. But it is natural to expect the reasons for disinheritance of the natural heirs. At the outset, I may state that petitioner Gur Prasad Gupta has not been totally disinherited. He has been bequeathed a godown situated at Damodar Park, Dilshad Garden, which was fetching the rent of Rs.25,000/- per month. It is, therefore, not one of those cases where, one of the legal heirs have been disinherited completely. It has come in the recitals of the WiU that in the year 1970, objector Har Sarup Gupta had purchased 34000 sq. yards of Industrial Area at G.T. Kamal Road, Bahalgarh, Sonepat for Gur Prasad Gupta and had got allotted an industrial plot measuring 1200 sq. yards at S.M.A. Society, Azadpur, Delhi. In addition, he was given Rs.l6 lakhs by objector Har Sarup Gupta after the sale of Rajouri Garden flat. Thus, the petitioner had been suitably compensated by the testatrix and her husband during the lifetime of testatrix itself and therefore, this might have been the reason that testatrix who by her earlier Will, had given ground floor and Miani of the property to the petitioner, changed her mind and executed the second Will, thereby giving the property situated at 3-B. Banarsi Dass Estate to her husband. In my view, the Will dated 13.05.2002 is more natural and equitable if it is compared with the earlier Will dated 17.04.1987."

¶28All in all it is seen that the factual contents of the Will dated 13.5.2002 are correct and have never been challenged by the appellant. Also, it is seen that there is not too much differencebetween the bequests in terms of the earlier Will dated 17.4.1987 and subsequentwill dated 13.5.2002exceptwith respectto certainaspects of the Rajouri Garden property, and for charities to be done, and bequest to the husband Sh. Har Swaroop Gupta so as not to be left without a roof on his head by bequeathingto him Banarsi Dass Estate FAO No.462/2007 <& FAO No.463/2007 Page 24 of25 property, hence, the court below has rightly held that the Will dated

13.5.2002 is duly proved on account of valid contents of the same.

¶29In view of the above discussion, both the appeals, that is FAO No. 462/2007 and FAO No. 463/2007 will stand dismissed. The appeals are accordingly dismissed and, disposed of leaving the parties to bear their own costs. JULY 06,2017 ^/ib/srb FAO No.462/2007 & FAO No.463/2007 VALMIKIJ. MEHTA, J Page 25 of25

* IN THE HIGHCOURTOF DELHIAT NEWDELHI + FAO No. 462/2007 0/^ e'""July,2017 GURPRASADGUPTA .....Appellant Through; Mr. Anupam Srivastava and Ms.ShreyaMehta,Advocates. versus ram PRASADGUPTA Respondent Through: Mr. AshwaniKumar,Advocate. + FAO No. 463/2007 GURPRASADGUPTA Appellant Through; Mr. Anupam Srivastava and Ms.ShreyaMehta,Advocates. versus RAMPRASADGUPTAAND ANR. Respondents Through; Mr. AshwaniKumar,Advocate. CORAM: HON'BLE MR. JUSTICE VALMIKIJ.MEHTA To be referredto the Reporteror not? YES VALMIKI J. MEHTA. J (ORAL) 1. By thisjudgmenttwo appealsare beingdisposedof. The two appealsare FAO No. 462/2007and FAO No. 463/2007. Boththe appealshave been filedby the appellantSh. Gur PrasadGupta. These FAONo.462/2007&FAONo.463/2007 Page1of25 .V two appeals have been filed against the common,judgment dated 2^^ 1.10.2007. By the impugnedcommonjudgmentdated 1.10.2007,two probatepetitionsseekinglettersof administrationwere decided.First case beingProbateCaseNo.88/2006was filedby the appellantseeking letters of administration with respect to the Will dated 17.4.1987 executedby the motherofthe appellantlate Smt. Ram ChandriDevi. In this first case seeking letters of administrationfiled by Sh. Gur Prasad Gupta, the objectorswere the father and brother of Sh. Gur Prasad Gupta, namely, Sh. Har Swaroop Gupta and Sh. Ram Prasad Gupta. The second case was a case filed by the father Sh. Har Swaroop Gupta seeking letters of administrationwith respect to the Will dated 13.5.2002 of his wife Smt. Ram Chandri Devi, that is the mother of the appellantSh. Gur Prasad Gupta and Sh. Ram Prasad Gupta. 2. By the impugnedjudgmentwhereas,the petitionseeking letters of administration filed by Sh. Gur Prasad Gupta has been dismissed, the petition filed by Sh. Har Swaroop Gupta has been allowed and letters of administrationhave been granted with respectto the Will dated 13.5.2002executed by late Smt. Ram Chandri Devi. I • may note thatboth the Wills reliedupon by the respectiveparties,that FAO No.462/2007 &FAO No.463/2007 Page 2 of25 'I is, the appellant Sh. Gur Prasad Gupta and father/husband/Sh.Har ^ SwaroopGuptaare registeredWills. Let me first take up FAO No.463/2007,inasmuchas, by this FAO, appellantSh. Gur Prasad Gupta is seekingsettingaside of the impugned judgment 1.10.2007 dismissing his petition filed for lettersof administrationof the Will dated 17.4.1987of late Smt. Ram Chandri Devi. 4. The courtbelowby the impugnedjudgmenthas dismissed the petitionfiled by the appellantSh. GurPrasadGuptaseekingletters of administrationofthe Will dated 17.4.1987,inasmuchas, admittedly, no depositionwas recorded of even one out of the three attesting witnessesof the Will. The courtbelow has also held that there is no issue of letters of administration being granted on the alleged admissionof Sh. Har SwaroopGupta and Sh. Ram PrasadGuptathat there did exista Will dated 17.4.1987of late Smt. Ram ChandriDevi, inasmuch as, in a probate petition by admission a case cannot be allowed because judgment in a case seeking probate and letters of administrationoperatesasjudgmentin rem. 5. In my opinion, the impugned judgment dismissingthe petitionfiled by the appellantSh. Gur PrasadGuptaseekinglettersof FAONo.462/2007&FAONo.463/2007 Page3of25 -> administration of the Will dated 17.4.1987 of the late Smt. Ram Chandri Devi carmot be faulted with and has to be upheld as per its reasoning, however this appeal can be decided by dismissing the same on a totally independent legal ground i.e on account of the provisions of Sections 70 and 237 of the Indian Succession Act, 1925. These Sections 70 and 237 of the Indian Succession Act show that letters of administration/probatecan only be granted on production and proof of the original Will and that a letter of administration/probatecan only be granted of a copy of the Will if it is shown that the original Will has not been revoked by destroying the Will such as by tearing of the same or burning of the same etc etc. Sections 70 and 237 o