FAO No.2135 of 2006 1 In the Punjab and Haryana High Court,at Chandigarh. Decided on May 30, 2009 Anil Kumar Kohli --Appellant vs General Public and others --Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Rajinder Chhibbar,Senior Advocate,with Ms.Meenu Sharma,Advocate, for the appellant Mr.Sanjay Kaushal,Advocate, for respondent Nos. 2 to 4 Mr.Dhiraj Narula,Advocate, for Mr.Sandeep Punchhi, Advocate,for respondent No.5 Rakesh Kumar Jain,J 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 FAO No.2135 of 2006 2 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 1/3 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 ½ 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:- “That Shri Krishan Lal Kohli, had bequeathed the plot No.164, Udyog Vihar, Gurgaon in favour of the petitioner to the extent of 1/3rd share, 1/3rd share in favour of the respondent No.5 and remaining 1/3rd share in favour of Smt. Krishna Kohli, the mother of the parties, in whose favour 1/3rd share had been willed by the testator, had pre-deceased Sh. Krishan Lal Kohli, as she died on 30.8.90. Her 1/3rd share devolved upon the respondent No.5 and vide Memorandum of Settlement dated 26.9.92, the petitioner and respondent No.5 became owner in possession of the plot No.164, udyog Vihar, Gurgaon to the extent of ½ share each, in terms of the Will dated 6.4.88 and Memorandum of Settlement dated 26.9.92”. FAO No.2135 of 2006 3 Since the appellant had sought certificate of probate of the Will dated 06.4.1988 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 Ist 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 Mohli, 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 FAO No.2135 of 2006 4 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 ½ share each. Now this Memo of settlement witnesth 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 ½ 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. That similarly all the other assets as per Annexure A and bank account as per Annexure B in terms of the said will dated 6.4.1988 which consist of stock in share, debentures and bank account shall be shared equally by both the parties. In witness where of both the parties have signed this document, on the day, month and year first above written in the presence of the following witnesses”. It is further pertinent to mention here that since the dispute is with regard to the Will, it would also be proper to reproduce the Will itself which would read thus:- FAO No.2135 of 2006 5 WILL Plot No. 164, Udyog Vihar Phase I, Gurgaon (Haryana State) Dated the 6th April, 1988. This will is made at Plot No. 164, phase I, Udyog Vihar (Gurgaon) on the 6th day of April, 1988 by Shri Krishan Lal Kohli son of Shri Gurditta Mal Kohli,resident of Plot No.164,Udyog Vihar, Gurgaon as an owner and Sole Proprietor, hereinafter called Testator, in favour of my younger son Shri Harsh Kohli, my wife Shrimati Krishna Kohli and my elder son ( Shri Anil Kumar Kohli) Whereas the testator is the sole proprietor & owner of Plot No.164 (Industrial Plot) in the Haryana State Industrial Development Corporation, Industrial Complex at Udyog Vihar, Tehsil and District Gurgaon (Haryana State) and holder of Shares and Debentures of the various firms in the corporate Sector as per Annexure “A” Attached and (iii) Bank accounts as per Annexure “B” attached. TILL I, the Testator remains alive, I will remain the absolute owner of the aforesaid properties in all respects whatsoever, I hereby appoint Shri Harsh Kohli as the sole executor of this Will and he will be the absolute owner of the said property ( immovable) of plot No. 164, Udyog Vihar (Gurgaon) as executor and administrator in the manner explained below: I hereby devise and bequeath the said immovable property of plot No. 164, Udyog Vihar for his use and for the benefit of the under-mentioned as explained hereinafter. FAO No.2135 of 2006 6 PART-I In so far as the immovable property of Plot No.164, Udyog Vihar is concerned, it will be equally divided between (i) Shri Harsh Kohli (my younger son), Shrimati Krishna Kohli (my wife) and (iii) Shri Anil Kumar Kohli (my elder son). This Will in respect of 1/3rd share of my younger son(Shri Harsh Kohli) is firm but the 1/3rd share of Shrimati Krishna Kohli and 1/3rd share of Shri Anil Kumar Kohli (my elder son) is subject to the following clear conditions:- (a) Re: 1/3 rd share of Shrimati Krishna Kohli (my wife) (i)Until and unless my younger son (Shri Harsh Kohli) and my wife mutually agree that my wife should remain and reside with my younger son, Shri Harsh Kohli, in U.S.A., otherwise in the normal course if they both decide that my wife should remain in India, she will have to reside with me in my old age so that we both are able to pass the difficult old age with mutual help and in peace. (ii) My wife (Smt. Krishna Kohli) shall NOT be entitled to sell or dispose of otherwise or transfer her 1/3rd share to anybody else without the express consent and approval of my younger son (Harsh Kohli). In case of death of my wife takes place before my death, her 1/3rd share will revert to me, and decided upon by me. If on the other hand, her death takes place subsequent to my FAO No.2135 of 2006 7 death, her 1/3rd share will go to my younger son (Shri Harsh Kohli). In WITNESS the Testator, who is in sound mind and in good sense and health has signed on the 6th day of April 1988. That the contents of this Will are read over and explained to the Testator, Who understands and admits them as correct in the presence of the following witnesses”. 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 exparte. Mrs.Shashi Chadha, failed to appear before the Court, therefore, she was proceeded against exparte on 16.4.2001. Smt.Sulekha Suri, Smt. Aruna Sahni and Harsh Kohli put in appearance as respondent Nos.2, 3 and 5 and filed their written statement. Both the parties led their evidence in support of their respective claims. After appreciating the entire evidence, the Court below passed the following order:- “A perusal of Will Ex.PW5/A shows that Sh.Krishan Lal Kohli desired by way of Will PW5/A that property of plot No. 164, Udyog Vihar will be equally divided between Sh. Harsh Kohli, Krishna Kohli and Sh. Anil Kumar Kohli, Share of Smt. Krishna kohli and Shri FAO No.2135 of 2006 8 Anil Kohli, was subject to some conditions. It is mentioned in the WILL Ex.PW5/A that in case of death of his wife takes place before his death her 1/3rd share will revert to him, and if her death takes place subsequent to his (Krishan Lal Kohli) death, her 1/3rd share will go to Sh.Harsh Kohli. Smt. Krishna Kohli died on 31.8.90 whereas Krishan Lal died on 15.4.92, thus, it is evident that Smt. Krishna Kohli died during the life time of Krishan Lal Kohli. As per intentions of WILL Ex.PW5/A 1/3rd share of Krishna Kohli would go to all the natural heirs of Sh.Krishan Lal Kohli. Thus, family settlement produced by petitioner as PW4/D is not binding upon respondent No.2 to 4 who are daughters of the deceased. Thus the above said 1/3rd share regarding which no WILL was made would go to the petitioner and respondent No. 2 to 5 in equal shares i.e. 1/15 share each. Thus, the petitioner is entitled to the extent of 2/5 share and respondent No. 2 to 4 are entitled to the extent of 1/15 share each in industrial plots No. 164, Udyog Vihar, Phase-I, Gurgaon. Accordingly, petition succeeds and same is accepted and probate certificate on the basis of WILL dated 6.4.1988 be granted in favour of petitioner and respondent No. 2 to 4 in following manner: Petitioner: 2/5 share Respondent No.5 Harsh Kohli:2/5 share Respondent No.2 to 4 :1/15 share each. in Industrial Plot No.164, Udyog Vihar, Phase I, Gurgaon on filing of indemnity bond with one surety in the same sum and on filing of FAO No.2135 of 2006 9 requisite stamp papers. File be consigned to record from after due compliance”. Aggrieved against the order dated 25.1.2006, the appellant has come up in appeal before this Court. Learned counsel for the appellants has mainly argued that the Probate Court had no jurisdiction to interpret the Will and decide the question of title , the probate had to be granted in favour of one person and not in favour of all the persons mentioned in the Will and the amount of indemnity bond requires to be nominal. Before adverting to the issues raised by learned counsel for the appellants, it would be appropriate to refer to some of the relevant provisions of the Act. Sections 2(f)“probate” means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator. Section 218. To whom administration may be granted,where deceased is a Hindu, Muhammadan, Budhist, Sikh, Jaina or exempted person.- (1) if the deceased has died intestate and was a Hindu, Muhammadan, Budhist, Sikh or Jaina or an exempted person, administration of his estate may be granted to any person, who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased's estate. (2)When several such persons apply for such FAO No.2135 of 2006 10 administration, it shall be in the discretion of the court to grant it to any one or more of them. (3) When no such person applies, it may be granted to a creditor of the deceased. Section 222. Probate only to appointed executor.-(1) Probate shall be granted only to an executor appointed by the will. (2) The appointment may be expressed or by necessary implication. Section 276.Petition for probate.-(1) Application for probate or for letters of administration, with the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the court in which the application is made, with the will or,in the cases mentioned in sections 237,238 and 239, a copy, draft or statement of the contents thereof, annexed, and stating- (a) the time of the testator's death, (b) that the writing annexed is his last will and testament, (c) that it was duly executed, (d) the amount of assets which are likely to come to the petitioner's hand, and (e) when the application is for probate, that the petitioner is the executor named in the will. (2) In addition to these particulars, the petition shall further state,- FAO No.2135 of 2006 11 (a) when the application is to th District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the judge; and (b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate. (3)Where the application is to the District Judge, and any portion of the assets likely to come to the petitioner's hands is situate in another State, the petition shall further state the amount of such assets in each State and District Judges within whose jurisdiction such assets are situate”. The first contention raised by the learned counsel for the appellants is regarding competence of the Probate Court. It is submitted by him that the probate neither settles the construction of the provisions contained in the Will nor decides the question of title to the properties covered by the Will. It is completely outside the purview of the Court to determine any question of title of the property covered by the Will or to construe the provisions of the documents sought to be probated except for the limited purpose of determining its disposition effect. In this regard, learned counsel for the appellants has relied upon a decision of the Calcutta High Court In the Goods of Nanda Lal Sett deceased A.I.R. 1955 Calcutta 88. FAO No.2135 of 2006 12 Reliance is also placed on the case of Chiranjilal Shrilal Goenka (deceased) through L.Rs 1993 (2) S.C 507 to contend that the probate Court does not decide any question of title or the existence of the property itself. The Court of probate is only concerned with the question as to whether the document put forward is the last Will and testament of a deceased person was duly executed and attested in accordance with the law and whether at the time of such execution, the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. The grant of probate with a copy of the Will annexed establishes conclusively as to the appointment of the executor and the valid execution of the Will. In respect of the question with regard to the indemnity bond, learned counsel for the appellants has relied upon decision of the Calcutta High court in the case of Mon Mohini Dass Vs. Taramoni A.I.R.1929 Calcutta 733, to contend that where the executor is the sole legatee and the District Judge thinks it necessary to take any bond, then the security fixed must be a nominal sum. In respect of third argument that the grant of probate cannot be given to more persons, it is submitted that the Court shall, at all time prefer the sole administrator to a joint administrator and it is only when unless the circumstances are sufficiently strong that it will be induced to exercise its discretion in favour of joint grant, and when such circumstances do not exist then joint grant should not be ordered. In FAO No.2135 of 2006 13 this regard, reference has been made to the decision of the Bombay High Court in the case of Yeshvantibai Eknath Vijaykar, In re. A.I.R.1929 Bombay 397. On the other hand, Mr.Sanjay Kaushal, learned counsel appearing on behalf of the respondents argued that in the present case, the appellants filed a petition under Section 276 of the Act for the issuance of a Probate Certificate of the Will dated 6.4.1988 in favour of the appellant and respondent No.5 and besides the share in the property in question, to the extent of 1/3rd in their favour, they had also claimed the share of their mother, who pre-deceased the testator, but her share was not bequeathed by the testator under the Will. The appellant and respondent No.5, by way of Memorandum of Settlement, claimed the property to the extent of ½ share each which was not granted by the testator in the Will . Therefore, it is submitted that the Probate Court cannot sit as a mute spectator if that question was brought before it about the succession of the property of the testator even beyond the terms of the Will. He has also referred to Section 276 (d) of the Act that the law itself provides that when the application for probate is filed, then not only, it is to be stated therein, that the writing annexed with the petition is the last Will of the testator which was duly executed but also the amount of assets which are likely to come to the petitioner' s hand. It is submitted that in the present case, the probate petition has been filed by the petitioner/appellant-Anil Kumar Kohli ,but in the prayer clause ,Probate Certificate of the Will dated FAO No.2135 of 2006 14 6.4.1988 has been sought to be granted in favour of the appellant as well as respondent Nos. 5 i.e Harsh Kohli on the basis of Memorandum of Settlement which has been executed between them on 26.9.1992. Learned counsel for the respondent further submitted that once the appellant has prayed for an adjustment of terms about the amount of assets which are likely to come to him, the Probate Court has committed no error of jurisdiction in interpreting the Will accordingly and holding that the appellant shall be entitled to 2/5th share, respondent No.5 to 2/5th share, respondent Nos. 2 to 4 to 1/15th share. It is further submitted that the arguments of learned counsel for the appellants are self contradictory that the Probate Certificate could not have been granted to a person more than one because in the petition itself, the appellant has prayed that the probate be granted to the appellant as well as respondent No.5. In respect of the indemnity bond for which the appellant has submitted that the amount of indemnity bond should be of a minimum sum, it is submitted that it is for the Probate Court to find out as to what arrangement is to be made to secure the property which has been bequeathed by the testator and is to be administered by the executor. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties and have perused the available record with them. Resume of the facts and the contentions raised by the learned counsel for the appellant is that the dispute is only with regard FAO No.2135 of 2006 15 to the immovable property, namely, plot No.164, Phase-I, Udyog Vihar, Gurgaon. The said property is subject matter of the Will dated 6.4.1988 in which it is alleged by the testator that he is the sole owner of plot No. 164. He accordingly appoints Harsh Kohli as the sole executor of the Will. According to the Will, the property of the plot No.164 is to be equally divided between Harsh Kohli, Smt.Krishna Kohli and Anil Kumar Kohli to the extent of 1/3rd share each. It is also specifically provided that in case of death of his wife prior to his death, her 1/3rd share shall revert back to him and in case of her death takes place subsequent to his death, then her 1/3rd shall go to his younger son Harsh Kohli. Admittedly, Smt. Krishna Kohli died on 30.8.1990 and the testator Krishan Lal Kohli died on15.4.1992. Thus, Smt. Krishna Kohli pre-deceased the testator. It is also an admitted fact that in the Will, the testator has not made any arrangement in respect of the share of Smt. Krishna Kohli in case she pre-deceased the testator. The Will is totally silent. It is also borne out from the record that the appellant filed a petition under Section 276 of the Act on 13.6.2000 but before the execution of Memorandum of Settlement (Ex.PW4/D), 1/3rd share of their mother was stated to have been acquired by Harsh Kohli (respondent No.5) and was equally shared by the appellant and respondent No.5 through that Memorandum of Settlement. Respondent Nos. 2 to 4 are the married daughters of the FAO No.2135 of 2006 16 testator. The learned Court below found that the Will Ex.PW5/A only provides 1/3rd share to the appellant, respondent No.5 and their mother who pre-deceased the testator and her share had reverted to the testator, therefore, the said share was not part of the Will and could not have been taken away by the appellant and respondent No.5 by way of family settlement (Ex.PW4/D) executed between both of them depriving the rights of their sisters who would otherwise be entitled to inherit the property of their father with both the brothers. Thus, the learned Court below settled the share of all the five brothers and sisters and granted them Probate Certificate. The basic question involved in this appeal is with regard to the jurisdiction of the Probate Court. Section 276 of the Act provides the procedure for seeking a probate by way of an application by annexing the Will, stating the time of the testator's death; that the writing annexed is last Will which was duly executed; that the amount of assets which are likely to come to the petitioner's hands and the petitioner is the executor named in the Will. No doubt, the Probate Court had no jurisdiction to deal-with the title of the properties provided in the Will, meaning thereby where the question of title in the suit is involved, that cannot be adjudicated upon in the probate proceedings. The Probate Court is only concerned with the question as to whether the document put forward as the last Will and testament of the deceased person was duly executed and decided in accordance FAO No.2135 of 2006 17 with law and at the time of such execution whether the testator was in his sound disposing mind and the question whether a bequeath is good or