JUDGMENT
Anil Kumar, J.
Page 2038
1. This order will dispose of application under Order XXXIX Rule 4 read with Section 151 of the Code of Civil Procedure of respondent/applicant, Anita Kapoor, for vacation of interim order dated 9th May, 2005 in the probate proceeding filed by her brother seeking probate of the will dated 20th November, 1998 of their mother, Smt. Kamla Rani Tandon, devising the entire property bearing No. 1/20, Shanti Niketan, New Delhi in favor of her brother.
2. The petitioner/non-applicant filed this probate petition along with an application being IA No. 3677/2005 seeking directions that he be allowed to open and operate a bank account in a nationalised bank in which the lessee of the property, Mr. Sidharth Mittal shall deposit the lease/rent amount in terms of the lease agreement dated 21st April, 2004 with the deceased mother.
3. On the application of the petitioner, he was appointed as an interim administrator of the estate of the deceased and he was authorised to open a separate account for depositing the rent in the said account from the lessee of property bearing No. 1/20, Shanti Niketan, New Delhi. The petitioner was permitted to pay the property tax for the property in question and was directed to maintain the accounts.
4. The applicant, Smt. Anita Kapoor, sister of the petitioner seeks vacation of this order on the ground that she had already filed a suit, CS(OS) No. 51/2005, in respect of the properties of her deceased mother, Smt. Kamla Rani Tandon, where in an application being IA No. 3081/2005 in CS(OS) No. 519/2005, Page 2039 the Court had directed the parties to maintain status quo with respect to possession and ownership of the property. According to the applicant, the order passed in the earlier suit filed by her was no disclosed to the Court and, consequently, the order dated 9th May, 2005 is liable to be vacated. The applicant also contended that the mother of the deceased had executed a lease deed on 21st April, 2004 under which the rent of Rs. 2.00 lakhs per month as to be divided between the applicant, her sister, Meenakshi Sethi, and the petitioner. She contended that during the pendency of the present petition, the arrangement be continued between the parties.
5. The applicant has contested the will of her mother dated 20th November, 1998 on the ground that the same may have been obtained by coercion and undue pressure as it was allegedly executed within three weeks of demise of her father and husband of the deceased on 28th October, 1998. The applicant has also contended that the petitioner is residing in U.K. after migrating almost about four decades ago and rarely visited his mother during her life-time whereas respondent had been staying with her mother ill the time of her demise. She contended that her belongings are still in B-25, Greater Kailash Part I, New Delhi. The deceased mother Smt. Kamla Rani Tandon never discriminated between her children in her life time. Equitable distribution of the rental of the property between her three siblings is also apparent from the lease deed dated 21st April, 2004 which is contrary to the alleged will whose probate is sought by her brother. She has also challenged the unregistered will propounded by her brother on the ground that it is not registered; it is factually incorrect and the testator was not of sound disposing state of mind on 20th November, 1998 few days after the demise of her husband and dispositions made in her will are unnatural, improbable ad are unfair. If she had the intention to devise the entire property to her son, she would not have distributed the rent of the property equally between her children which lease deed was executed after the alleged will.
6. The application for vacation of order dated 9th May, 2005 is contested by the petitioner on the ground that the suit of the applicant is not maintainable in view of Section 276 and 283 of Indian Succession Act and the suit has been filed with ulterior motive to prevent the present probate proceedings. He contended that he is the executor and beneficiary of the will pursuant to which after the demise of her mother and the order passed by this Court, the entire rent is to be deposited in a separate nationalised bank account and at this juncture or stage, to divide the rent between him and his sisters shall be contrary to the intention of the deceased as made in the will dated 20th November, 1998. Regarding bifurcation of the rent equally between applicant, petitioner and other sister, it was alleged that this arrangement was made during the life time of their mother and continued for convenience, however, after her demise the entire rent is to go according to the will.
7. The learned Counsel, Mr. Vashisht on behalf of the applicant during the arguments also contended that stipulation in the lease deed dated 21st, April, 2004 is in the nature of her codicil as it was executed after the alleged will dated 20th November, 1998 and the intention of the deceased testator should at least continue during the term of the lease. He contended that in case the Page 2040 will had been genuine, there was no need of late Smt. Kamla Rani Tandon to devise the rental of the property equally between her three children.
8. For vacation or modification of order dated 9th May, 2005 what is to be seen is whether prima facie case has been made out by the applicant and whether she will suffer irreparable loss in case she is deprived of her share of rental during the pendency of the testamentary case and in the circumstances whether the balance of convenience shall be in her favor or in favor of petitioner.
9. As far as the maintainability of the suit filed by the applicant is concerned and rejection of plaint pursuant to an application by petitioner under Order VII Rule 11 of the Code of Civil Procedure in the suit filed by the applicant, it is to be adjudicated in the said suit filed by the applicant and not in the above probate petition. In the circumstances, it will not be appropriate to comment on the precedents relied on by the parties Chiranjilal Shrilal Goenka (deceased) through L.Rs. v. Jasjit Singh and Ors. by the petitioner, JT 2000 (4) S.C.229 Nirmala Devi v. Arun Kumar Gupta and Ors. Shekhar Chandra Ghosh v. Sankar Chandra Ghosh and Anr. regarding maintainability of the suit filed by the applicant.
10. The stipulation in the lease distributing the rent equally in respect of Shanti Niketan property among the three siblings of late Smt. Kamla Rani Tandon does not appear to be a codicil in compliance with the provisions of Indian Succession Act. However, it is relevant for the purposes of ascertaining the irreparable loss to the respective parties and for inferring who shall be caused greater inconvenience and thus balance of convenience.
11. By order dated 9th may, 2005, the petitioner has been allowed to open an account in the nationalised bank and allowed to maintain the account and deposit the rent received from the Shanti Niketan property and pay the property tax. The fact that the petitioner had migrated to a foreign country four decades ago and the testamentary petition has been filed through an attorney has not been denied. Similarly, the fact that the applicant was living with her mother till the end of her life and the deceased mother had been treating her children equally seems to be more plausible as nothing contrary has been produced or relied on by the petitioner.
12. If the deceased mother wanted applicant to have her share of rent despite executing the alleged will dated 20th November, 1998, it will not be appropriate to deprive the applicant of her share of rent from the property.
13. Legal notice can be taken of the fact that the litigation between the parties will take considerable period. The applicant is already about 64 years of age and in case she is not allowed to have her share of rental income from Shanti Niketan property now, the probability that she may not enjoy her share of rental income of the property after conclusion of the proceedings, is much higher considering her advance age. In the circumstances, it is inevitable to Page 2041 infer that the balance convenience is indavour of applicant so is the irreparable loss which she may suffer in case the order dated 9th May,2005 directing deposit of entire rent in the new bank account instead of payment of share of the rent to the applicant, is not modified. At the same time, the interest of the petitioner is also to be safeguarded. He has been appointed as an administrator and the amount is being deposited in the nationalised bank and he has been allowed to pay the property tax. Another fact which has bearing is that the petitioner has migrated four decades ago and this litigation is being conducted through an attorney. Nevertheless, in case the will propounded by the petitioner is established, he may be entitled for the entire rent from the Shanti Niketan property.
14. Considering all the facts and circumstances and the contentions raised by the parties, I deem it appropriate to modify the order dated 9th May, 2005 directing the petitioner to release the share of the rental income of the applicant after deducting her share of liability of property tax subject to a security to be furnished by her for the amount which would be released in her favor. With these observations, the application is disposed of. Nothing stated here shall be expression of an opinion on the merits of the matter.