- (1.) THE plaintiff-Sri Jalaluddin son of Badruddin filed this testamentary case on 18. 9. 1997 for grant of probate with a copy of Will annexed thereto executed by the deceased - Begum Shanti Tufail Ahamad Khan wife of late Tufail Ahmad Khan, resident of 18-B Maharani Bagh. New Delhi. who died on 9. 10. 1976 leaving behind her alleged Will and Testament dated 23. 5. 1974 (wrongly mentioned in para 6,7 and 10 as 23. 5. 1994), In para 11 of the plaint, it is alleged that she had handed over the Will to one Sri Yusuf Ali Khan son of Sri Kamaluddin Khan resident of 60 Jufarabad, Delhi who is also an attesting witness to the Will with instructions to hand it over to the applicant. The said Yusuf Ali Khan in pursuant to instruction handed over the Will to the applicant on 15. 7. 1997 (after 23 years ).
(2.) IN the Will (Paper No. A-3/16) the deceased claimed to be 60 years old and owner of properties in many cities of INdia, which she got from her husband, more particularly in Delhi. U. P. , Madhya Pradesh and Haryana including Plot No. 43 and 44 on Retuned Road on which House No. 18-B Maharani Bagh New Delhi is built; Shanti Kunj and Dileram Estate in Mussorrie in U. P. , Tasvir Mahal Cinema in Aligarh. Digar properties at Hazratganj, Lucknow and Civil Lines at Allahabad and also Gwalior in Madhya Pradesh, Garhi Bahrail and Nawab Garhi in District Karnal, Haryana. She bequeathed the entire properties to a son in the family, Jalalludin son of Bahruddin resident of Muzaffarnagar, U. P. related to her as the family grandson (Khandani Chirag ). In this Will she scribed that her husband was a lecturer in Aligarh University and had desired that the property should remain in the family, left by her husband on death to Jalaluddin who he expected to follow the traditions of the family. She gave him her full rights to get his name transferred in all the properties. The Will was scribed by Sri Sadhu Ram, Kashmiri Gate, Delhi on 23. 5. 1974 and was witnessed by Sri Yusuf Ali Khan son of Kamalludin Khan resident of 60 Jafarabad, Delhi and Sri Kitabuddin, Son of Sri Mohd. Nasir Husain, resident of Kairana, Muzaffarnagar. Notices were issued on 19. 9. 1997 to Sri Ruikom Deen son of Sri Badruddin, alleged to be the only surviving next kith and kin, Administrator General, Board of Revenue, U. P. and to be published in the news paper. The advertisement was carried out in 'amar Ujala' dated 12. 11. 1997 published from Meerut and 'hindustan Times' published from New Delhi on 13. 11. 1997. Sri Rukom Deen son of Sri Badruddin appearing through Sri R. K. Upadhaya, Advocate filed his affidavit dated 28. 11. 1997 stating in para 3 that so far as the Will as executed by Shanti Tuffail Ahmad on 23. 7. 74 is concerned the deponent has nothing to do with the Will as well he has no objections. Affidavit of valuation of assets was filed describing the properties in the State of Delhi, Uttar Pradesh, Madhya Pradesh and Haryana with a total value of Rs. 9 lacs only. In pursuance of directions by this Court the better particulars with full valuation were given by a fresh affidavit of valuation valuing the properties at Rs. 20, 90, 400. 00 only. Objections were filed by Sri Ravi Sikari claiming to be owners of B-18 Maharani Bagh, New Delhi. In these objections dated 15. 7. 1998 he denied the title of deceased and claimed that he had acquried the Perpetual Sub Lease dated 31. 5. 1965 from Maharani Bagh Cooperative Housing Building Society Ltd. which is a registered document and has been paying house tax vide assessment order annexed to his objections. Objections were also filed by Sri Patwant Singh and Smt. Rasil Basu on 17. 5. 1989 stating that a Muslim could not have given more than one third of her properties by Will under the Muslim Law. The properties bearing No. 11 Amrita Shergil Marg New Delhi was allotted to Sri Tufail Ahamad Khan vide Lease Deed dated 23. 12. 1939. He sold the properties to Sri Kamla Devi on 13. 2. 1948, who thereafter sold to Smt. Harnam Kaur on 20. 9. 1949. Smt. Harnam Kaur executed Perpetual Lease Deed dated 13. 4. 1964 in favour of the objector on which name of the objectors were mutated on 10. 7. 1967 and since then the objectors are in possession.
(3.) THE testamentary case was converted into suit and was heard on many dates. Preliminary issues were framed on 20. 1. 2004 and parties led evidence with regard to ownership of the properties detailed as above. Objections/caveats also filed by Smt. Pushpa Guglani. The Court framed preliminary issue whether the caveators Mr. Ravi Sikari and Smt. Pushpa Guglani have any interest to maintain the caveat. These legal issues were considered and decided by Court on 24. 2. 2004. It was held following AIR 1954 SC 280 and 1990 (2) C. L. J. 311 (Kant), that grant of Probate or Letters of Administration, does not prove the legality of the bequest, Such grant proves only two things, that the signature on the Will were made by the testator and the Will is valid Will fulfilling the requirements of signature of testator and attestation; and that the testator at time of signing of the Will was of sound mind and the Will was not the effect of fraud, coercion and undue influence. Even if Probate/letters of Administration is granted by the Court, it would not affect the interest of the caveators, in case they have got title in the properties, and they will be at liberty to prove their title in any proceedings which may be directly concerned therewith, notwithstanding the grant of Probate or Letters of Administration and even if the application is refused, still the natural heirs of the testator would be entitled to assert their rights to the property in dispute. Smt. Pushpa Guglani, claimed to be a transferee vide Agreement dated 23. 10. 1954 from the lessee vide Lease Deed dated 4. 2. 1955 from Sri K. B. Moh. Mazar, who was the grantee of the lease from Government General in Council dated 22. 4. 1941 as nazul land. It was held that both the caveators namely Mr. Sikri and Smt. Guglani did not have any caveatable interest and thus their caveats were discharged. Sri Nalin Kumar Sharma has filed objections on behalf of S/shri Asif Khan, Mohd. Afaq, Mohd. Aftab Abid, Latif and Ahmad Latif, Shri Mohd. Hussain Khan, Shri Anwar Ali Khan and Shri Abdulla Khan whereas Shri Tufail Ahmad Khan (died on 25. 9. 1951) was grandson of Mohd. Hussain Khan. Anwar Yasim Khan (died on 16. 6. 1968) was son of Ahmad Ali Khan and the objectors Mohd. Yusif claimed to be grandson of late Abdul Khan and third son of common ancestor Nawab Gulam Mohd. Khan. In these objections it is stated that on the death of Tufail Ahmad Khan at the age of 42 years his properties were attached by the Collector, Aligarh under the Courts of Wards Act. The Collector, Aligarh filed an interpleader suit in Civil Court Aligarh. The Civil Judge, Aligarh in Suit No. 88 of 1991 decided that as per Muslim law Begum Shanti Tufail Khan inherited one fourth share in the property of Nawab Tufail Ahmad Khan and that remaining three fourth share of the properties were inherited by Nawab Yusuf Ali Khan, who thereafter left the entire share in favour of Khursheed Yusuf Ahmad Khan the son of Fatima Begum and cousin Ahmad Hasan Khan. The Nawab Yusuf Ali Khan died on 16. 6. 1968 without leaving any issue. The father of the objectors Sri Abdul Ali Khan filed was residing at Bombay since 1952 to 1984 and returned to Bhopal in 1993. The father never involved his sons-the objectors in family litigation. They had no knoweldge of the litigation. He had given power of attorney to one Shri Abib Ahmad for doing pairavi of his cases. Jalaluddin- the plaintiff in these proceedings was a worker (Karinda) of Abib Ahmad of Muzzaffarnagar. He used to write letters to their father. One such letter relating to the properties at Panipat dated 29. 9. 1993 is annexed to the affidavit of Shri Moh Aftab. The father of the objectors filed a suit at Panipat as heirs of Nawab Yusuf Ali Khan against one Mohd. Umar, who tried to usurp the properties by Nawab Yusuf Khan at Panipat by a forged Will. The suit was decreed in favour of Sri Abdul Latif Khan. The appeal against which was dismissed by District Judge, Karnal and the High Court of Punjab and Haryana also dismissed the R. S. A. of Ahmad Umar and accordingly the agricultural properties in village Sewat Ghari were mutated in favour of Abdul Latif.;