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In The Goods Of Late Hari Kishan Somani v. Devedra Kumar Somani - TESTAMENTARY SUITS No. 4 of 2000 [2005] RD-AH 5407 (9 November 2005)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Court No. 9.

In the matter of

Goods of Late Hari Kishan Somani

T.S. No. 4 of 2000.

Devendra Kumar Somani   Vs.       Rajemdra Kumar Somani

Hon. Sunil Ambwani, J.

Sri A.K. Gupta and Sri Arnab Banerjee appear for Devendra Kumar Somani, the petitioner,  and Sri Ravi Prakash Srivastava  appears for Sri Rajendra Kumar Somani-opposite party.

This Testamentary Case under Section 276/278 of Indian Succession Act, 1925, seeks to grant probate in terms of the Will dated 19.4.1971 executed by Late Hari Krishna Somani  for grant of Letters of Administration to the petitioner to administer full and complete estate of Hari Krishna Somani (deceased) including the properties given in Annexure-1; to  declare the Will dated 19.4.1971 as the last Will  of the testator Late Hari Krishna Somani and that no other right has been created in favour of any person; to appoint receiver/commissioner to take possession of the original of the  Will dated 19.4.1971 in possession of the opposite party; to appoint

Administrator, receiver/Local Commissioner,  and to grant interim relief including injunction and  appointment of receiver etc.    

Notices were issued on the application on 17.11.1999.  Sri Rajendra Kumar Somani filed a caveat on 23.1.2000 on his behalf  and three other applicants and filed separate objections.   In view of the objections, the Testamentary Case was converted into the Suit and was numbered accordingly.  Since thereafter the matter is pending for framing of issues.  The plaintiff has not filed any  replication or any affidavit in reply to the objection has been filed by the petitioner.

In the objection/statement, it is stated that the Will dated 19.4.1971 was revoked by another Will executed by Sri Hari Krishna

Saxena on 4.12.1975.  He once again appointed Sri Rajendra Kumar  


Somani as the sole Executor in its new Will and declared Sri Kishan Kumar Somani the grand son of testator and son of Sri Rajendra Kumar  Somani as absolute owner of the property of the testator.  Along with these objections, the caveators have also filed an order dated 10.10.1985 passed by Hon. Mrs. Justice Manjula Bose of Calcutta High Court by which the matter No. 130-A of 1979, Devendra Kumar Somani Vs. Rajendra Kumar Somani was dismissed with costs and all interim applications were rejected on 10.10.1985.  Objections were also filed by Smt. Uma Bhargava, Smt. Usha Rani  Malani, and Narendra Kumar Somani to the same effect stating that the Will dated 4.12.1975 is the last Will of their father.  

The Objector-caveator has filed objections and an appliation under Order 7 Rule 11 C.P.C. to return the plaint of the  Testamentary Suit as no fresh cause of action has been disclosed by the plaintiff/petitioner in the plaint/petition  after the matter was rejected by the Clcutta High Court, and that the suit is also barred by law.  In this application it is stated as follows:

"2. That the plaintiff/petitioner, Shri D.K. Somani has filed a probate petition for grant of Probate and Letters of Administration in respect of the will dated 19.4.1971 executed by Late Shri J.K. Somani.

3. That in paragraph no. 9 of the plaint/petition, it is alleged that by the said will, the opposite party was appointed as the sole executor of the will.  The said willstated that after the death of the testator, his wife Smt. Ratan Devi would be the owner of all the properties of the testator and if she pre-deceased the testator then the petitioner applicant and the opposite party would get all the properties in equal shares as owners thereof.  

4. That Sri H.K. Somani died on 4.5.1977.  As per his will, the entire property was inherited by Smt. Ratan Devi Somani as she ws alive on the day H.K. Somani died.  This is clear from the admission made by D.K. Somani in paragraph no. 9 & 12 of the plaint/petition.

5. That it is therefore clear that Smt. Ratan Devi Somani inherited the property upon the death of her husband H.K.


Somani.  The petitioner, D.K. Somani did not inherit anything from the will of H.K. Somani.

6. That Smt. Ratan Devi Somani executed a will dated 2.6.1977 bequeathing the entire property in favour of her eldest son, Shri Rajendra Kumar Somani. Smt. Ratan Devi Somani died on 24.3.1978 and upon her death, Shri R.K. Somani became the sole and absolute owner of the property owned by Smt. Ratan Devi Somani.  All these facts are admitted by D.K. Somani and are amply proof from the record of the case.

7. That it is therefore, absolutely clear that Shri D.K. Somani is not entitled to any relief as per the will dated 19.4.1971 executed by H,K, Somani and as per will dated 2.6.1977 executed by Smt. Ratan Devi Somani.

8. That thus according to the allegations made in the plaint/petition itself and admission made by the petitioner and upon perusal of the will dated 19.4.1971, the plaint/petition does not disclose any cause of action in favour of the petitioner and, therefore, the plaint is liable to be rejected under Order 7 Rule 11 C.P.C.

9. That the plaint/petition is further barred by law under Order 7 Rule 11(d) C.P.C. inasmuch as the will dated 19.4.1971 was revoked by the testator by his will dated 4.12.1975.  The will dated 4.12.1975 is in the knowledge of the petitioner D.K. Somani and the said will has not been challenged by him in any court of law till date.  This will dated 4.12.1975 has been filed in Original Suit No. 212 of 1987 pending before the Additional District Judge, Kanpur Nagar in which the opp. Party has proved the existence of the will.  Thus in view of the will dated 4.12.1975 revoking the will dated 19.4.1971, the present petition is barred by law.

10. That in view of the averments made in the preceding paragraph, it is absolutely clear that the plaint/petition is liable to be rejected under the provision of Order 7 Rule 11 C.P.C."

That the application under Order 7 Rule 11, C.P.C. filed on 19.9.2001.   The plaintiffs have not cared to file any  reply to this application so far.

          Sri Ravi Prakash Srivastava states that after the application for grant of probate and interim prayers were rejected by the Calcutta  High Court, on 10.10.1985, the plaintiffs have not acquired any fresh cause of action to file the Testamentary Case (which has been


converted into Testamentary Suit).   Relying upon the provisions of Sub Rule (a) of Rule 11 of Order 7 C.P.C, he states that the plaintiff had withheld the facts of filing earlier application for probate which was rejected by the Calcutta High Court and that he could not have brought the same will  dated 19.4.1971 to be adjudicated by this Court.

Sri A.K. Gupta learned counsel for the petitioner submits that the application filed before the Calcutta High Court was only with the prayers for injunction and consequential orders and were dismissed by the Calcutta High Court on the ground that since the main prayers for grant of probate had not been made, the application is not maintainable.  He submits that the Will dated 19.4.1971 was never sought to be probated earlier, and that under some mistaken advise, the application for interim injunction was filed and was  rejected by the Calcutta High Court.  

I have gone through the application before the Calcutta High Court.   In the matter No. 130A of 1979 ,  Sri Devendra Kumar Somani the plaintiff  made the following  prayer:

"a) Your petitioner be given liberty to get probate of the said last will and testament dated 19th April, 1971 left by the testator.

b) Your petitioner be appointed executor and/or administrator pendentelite to administer the assets and property as mentioned in Annexure ''B' herein and such administrator be directed and empowered to continue and/or to conduct and defend all suits and proceedings  relating to or involving he said testator including the said title suit No. 3 of 1976.

c) Alternatively an Administrator pendentelite be appointed by this Hon'ble Court to administer the estate and/or the assets as mentioned in Annexure ''B' herein.

d) In the further alternative a curator be appointed in respect of all the assets and properties as mentioned in Annexure ''B'.5

e) A Receiver be appointed to take possession of the Original Will dated 19th April, 1971 and to deposit the same with the Registrar, Original Side of this Hon'ble Court for safe custody.


f) Ad-interim order in terms of prayers (d) and (e) above.

g) Respondent be directed to make over the original of the said Will and testament dated 19th April, 1971.

h) If necessary, a Receiver be appointed in respect of the assets and properties as mentioned in Annexure ''B' herein.

i) An order of injunction be made restraining the respondent, his servants and agents and/or assigns and/or dealing with and/or disposing of any of the assets or properties as mentioned in Annexure ''B' herein.

j) An order of injunction be made restraining the respondent from exercising any voting rights in respect of any shares stood and/or standing in the name of the testator in the companies as mentioned in Annexure ''B' herein.

k) Ad-interim order in terms of prayers (i) and (j).

l) Costs and incidentals of this application be paid out of this debt.

m) such order or orders and/or directions be given as may be deemed fit and proper by this Hon'ble Court."

The Calcutta High Court dismissed the application as belated, mala-fide, and vexatious and also as abuse of process of Court.  The findings recorded by the Calcutta High Court are as below:

" It would thus be clear that all the prayers sought herein, namely, (a), (b), (c), and (d) were the subject matter of the previous application being prayers (c), (e), (i) and (j) of the application taken out by the petitioner affirmed by Devendra Kumar Somani on the 9th  of July, 1979, which matter for some unknown reason was kept pending all these years and it can be assumed that the petitioner therein, was not at all interested in having the matter heard and or disposed of.

From the facts and circumstances of the case, it would thus appear that keeping the earlier application pending, a subsequent application on the eve of the holidays is made with a view to snatch an interim


protective order in respect of the estate is pending before the Court in which any action  could be taken by the petitioner and in this background, the Court has no other alternative but to reject the application as being totally misconceived and not maintainable.  Mr. Kapoor has rightly urged that it was for the petitioner, if he was aggrieved to take steps to challenge the Will over which he wants a Receiver to be appointed, and have the same set aside it, the same stands in his way and he cannot seek and pray that Receiver be appointed over the estate of the deceased in a circuitous manner which is not permissible in law.  In this view of the matter it is not necessary for the Court to go into the niceties of law as urged, namely, as to whether probate of the Will in question was necessary or not.  But suffice it to be recorded that if it was necessary the Court would favour the contentions urged by Mr. Kapoor and whichever way the matter is viewed, the application has no legs to stand on and cannot be treated even as a supplementary affidavit the matter No.1304 of 1979 itself appears to be also an application taken out without any "lis" pending by the Court and as such, not in accordance with law.  For all these reasons, particularly nothing that an Executor has powers to deal with and dispose of the estate of the deceased under Section 307 of the Succession Act and upon the death of the deceased the estate vests in the Executor as provided under Section 211 of the Act, the Court is loath to interfere by passing any order of injunction as sought for and any event, the facts of the same case do not justify any order of injunction.

The application is belated, mala-fide and vexatious and appears to be an abuse of process of Court and is dismissed with costs.

All interim orders stand vacated."

I do not  agree  with Sri A.K. Gupta that the plaintiff had not made any prayer for grant of probate and that Shri Devendra Kumar Somani has never made a request of probating the Will.  The prayers

made in the Matter No. 130-A of 1979  decided on 10.10.1985, were  clearly for the grant of probate and to appoint Sri Devendra Kumar Somani as Executor of the Will dated 19.4.1971.  The matter was dismissed as belated, mala-fide and vexatious as well as abuse of


process of Court.  The Calcutta High Court clearly stated as above that it is not necessary for the Court to go into the niceties of law, namely as to whether the probate  of the Will, is necessary or not.  If the plaintiff was aggrieved, he could to asked for recall, or to taken the matter in appeal.

The plaintiff did not disclose the filing of application for probate of the will dated 19.4.1971 and for appointment as Executor.  He also did not disclose  that Matter No. 130-A of 1979 filed before the Calcutta High Court for such purposes, was dismissed on 10.10.1985.  He filed this petition on 16.11.1999 for probate and for the execution of the will and for taking possession of the will and exparte interim orders, purportedly disclosing the cause of auction   in para 25, to begin when the Testator passed away, when Mrs. Ratan Devi passed away, and when the opposite party failed to administer the said will as per its terms and conditions and started  misappropriating and  converting the properties of the testator to the exclusion of the petitioner.  The petitioner  acted with malafide intention in withholding the details of the proceedings before the Calcutta High Court, the execution  and the subsequent will dated 4.12.1975 and has not give any such events or incident which may give him a fresh cause of action all over again to seek probate after similar application  was dismissed as belated, malafide and vexatious.

Further I find that the plaintiff had not challenged the execution of the Will dated 4.12.1971, which clearly revoked the earlier Will dated 19.4.1979.  He has not filed any replication or reply to the objections and to the application under Order 7 Rule 11 C.P.C.   In any case he did not acquired a fresh cause to file this suit.

The application under Order 7 Rule 11 C.P.C. is consequently allowed.  The plaint is rejected with Rs. 10,000/- as costs against the plaintiff.

Dt. 9.11.2005.



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