VISHAL BANGA vs STATE (NCT OF DELHI) & ANR.
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 37/2024 & CM APPL. 17187/2024
VISHAL BANGA ….. Appellant
Through: Mr. Krishnendu Dutta, Sr. Advocate with Mr. Prachi Johri, Mr. Abhipsa Sahu and Ms. Varsha, Advocates
versus
STATE (NCT OF DELHI) & ANR. ….. Respondents
Through: Mr Rajesh Yadav, Sr. Advocate with Mr. Gautam Dhamija, Mr. Krishna Mohan Menon and Mr. Dhananjay Mehlawat, Advocates for R-2
% Date of Decision: 22nd March, 2024
CORAM:
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMOHAN, ACJ : (ORAL)
CM APPL. 17186/2024
Allowed, subject to all just exceptions.
Accordingly, the present application stands disposed of.
CAV 138/2024
Since the learned counsel for caveator/respondent No.2 entered appearance, the caveat stands disposed of.
FAO(OS) 37/2024
1. The present appeal has been filed under Section 10 of the Delhi High Court Act, 1966, challenging the impugned judgment dated 5th February, 2024, passed in Test. Cas. No. 36/2017, whereby the learned Single Judge allowed the I.A. No. 18691/2023 filed by the Respondent No.2, a beneficiary under the Will dated 21st May, 2015.
2. The said I.A. No. 18691/2023 was filed seeking directions for taking on record the valuation report of the various NRE fixed deposits and NRE Accounts held by the testator with State Bank of India, NRI Branch, Mumbai (NRE fixed deposits) and for issuance of Letters of Administration/Probate in favour of Respondent No.2.
3. The learned Single Judge vide order dated 6th August, 2019, had already granted joint probate of the Will dated 21th May, 2015 in favour of the Appellant and Respondent No. 2, subject to payment of appropriate court fees. Accordingly, while allowing the I.A. No. 691/2023 the learned Single Judge directed (i) payment of appropriate court fees; (ii) the valuation of the Bank Accounts; and (iii) grant of Letters of Administration/Probate issued vide earlier order dated 6th August, 2019.
4. The rank and status of the parties in this appeal is same as was before the learned Single Judge in the probate petition.
5. The probate petition has been filed by the Appellant under Section 276 of the Indian Succession Act, 1925, seeking probate of the last Will and testament dated 21st May, 2015, executed by late Sh. Harbans Singh Bang i.e., the father of Appellant and Respondent No.2 herein. The validity of the said Will dated 21st May, 2015, was accepted by the Respondent No.2 in the probate petition and accordingly, the learned Single Judge had vide order dated 6th August, 2019, allowed the said petition and granted joint probate of the Will dated 21st May, 2015, in favour of the Appellant and Respondent No.2, subject to payment of appropriate court fees. The learned Single Judge vide said order further directed the parties to get the property valued through an authorized valuer.
5.1. The Respondent No.2 in view of the aforesaid order dated 6th August, 2019, filed the I.A. No. 18691/2023, seeking to place on record the bank account details furnished by State Bank of India, NRI Branch, Mumbai, in respect of various NRE fixed deposits and NRE Accounts in the name of late Sh. Harbans Singh Banga, which has been allowed by the learned Single Judge vide impugned judgment.
5.2. The NRE fixed deposits kept with the SBI are the subject matter of bequest in the Will dated 21st May, 2015 and the Respondent No. 2 is the sole beneficiary of the said deposits as per the bequest made in the Will.
5.3. The Appellant herein filed a reply to I.A. No. 18691/2023 and opposed the grant of letters of administration for the said NRE fixed deposits exclusively to the Respondent No. 2 on the plea that the bequest under the Will is conditional and since, the Respondent No. 2 has breached the condition, setout therein, the devolution of NRE fixed deposits will not be governed by the terms of the Will but as per the law of intestate succession and has to be divided 50-50 amongst Appellant and Respondent No. 2.
5.4. The learned Single Judge has rejected the arguments of the Appellant and concluded that there was no breach of the condition attached to the bequest and, therefore, allowed the application and granted the Letters of Administration/Probate in favour of Respondent No. 2 in accordance with the bequest made under the Will dated 21st May, 2015.
6. Learned Senior Counsel for the Appellant states that the learned Single Judge erred in allowing the said I.A. No. 18691/2023 inasmuch as the bequest of NRE fixed deposits in favour of Respondent No.2, was to operate subject to the condition that the said NRE fixed deposits are maintained for a period of ten years and the bank guarantee issued against the said deposits shall continue for a period of ten years.
6.1. He states that however, admittedly, the bank guarantees maintained against the said NRE fixed deposits stood invoked in June, 2016, by CA Indosuez (Switzerland), Singapore Branch (Singapore Branch). He states the bank guarantee was furnished by the testator to secure the loan availed from a Singapore Bank. He states that the Appellant believes that the loan was availed by a Trust and the beneficiary of the said Trust was Respondent No. 2. He states that since the Trust failed to repay the said loan, the guarantee was invoked by the Bank and contemporaneously the NRE fixed deposits also stood utilized. He states that therefore Respondent No. 2, already stands benefited by the invocation of the bank guarantee.
6.2. He states that with the encashment of the bank guarantee in the year 2016, the conditional bequest has been breached and therefore, the exclusive bequest with respect to NRE fixed deposits in favour of Respondent No. 2 has failed. He states thus, the devolution of NRE fixed deposits is to be excluded from the Will and the same shall be governed by intestate succession for which purpose a separate suit has been filed by the Appellant at Mumbai.
6.3. He states that learned Single Judge travelled beyond the scope of the Will dated 21st May, 2015, by interpreting the said Will beyond its plain words and imputing intentions to the testator which are not borne out from the record.
7. In reply, learned Senior Counsel for Respondent No. 2 states that the objections raised by the Appellant are merely an afterthought. He states that the bank guarantee was invoked in the year 2016, whereas the probate petition was filed in July, 2017. He states that the invocation of the bank guarantee was to the knowledge of the Appellant and no such exception was pleaded in the probate petition. He states that Respondent No. 2 gave his no objection to the grant of probate on 6th August, 2019 and at no stage, the Appellant made this submission of excluding NRE fixed deposits from the scope of operation of the Will dated 21st May, 2015.
8. We have heard the learned Senior counsel for the parties and perused the record.
9. The probate petition i.e., Test. Cas. No. 36/2017 was filed by the Appellant seeking grant of Letters of Administration/Probate for the Will dated 21st May, 2015. In the schedule of assets annexed with the probate petition, the NRE fixed deposits were duly enlisted by the Appellant. Admittedly, as per the bequest in the Will, the NRE fixed deposits were to devolve exclusively on the Respondent No. 2.
10. It is admitted by the Appellant that the bank guarantee stood invoked by Singapore Bank and enchased on 1st June, 2016. Consequent to the invocation of the bank guarantee, some part of the NRE fixed deposit stood utilized by SBI. All this has happened prior to the filing of the probate petition and was within the knowledge of the Appellant. However, the Appellant did not plead any failure of the bequest qua the said NRE fixed deposits in favour of Respondent No. 2.
11. The Respondent No. 2 entered appearance in the probate proceedings and admitted to the validity of the Will. Since the Respondent No.2 is a beneficiary under the Will; he prayed for grant of joint probate in his and Appellants favour.
12. The learned Single Judge after satisfying himself about the validity of the Will vide order dated 6th August, 2019, granted joint probate in favour of the Appellant and Respondent No. 2.
13. The Appellant, as per the record, issued a legal notice on 11th May, 2023 to the Respondent No. 2 alleging that the NRE fixed deposits shall not be governed by the bequest made under the Will. It was alleged that the same are outside the scope of the Will and its devolution shall be governed by intestate succession.
14. We may note that the Appellant at no point [during 2017 to 2023] alleged in the probate proceedings that the bequest of the NRE fixed deposits in favour of Respondent No. 2 is not to be given effect to due to the invocation of the bank guarantees in the year 2016. The said objection has been urged in the probate proceedings for the first time in the reply filed to I.A. No. 18691/2023 on 16th October, 2023.
15. The I.A. No. 18691/2023 was filed by the Respondent No. 2 before the learned Single Judge on 5th September, 2023 and it is only thereafter, that the Appellant has sought to initiate proceedings before the Courts at Mumbai to scuttle the adjudication of the said I.A. No. 18691/2023.
16. In the facts noted above, it is apparent that the Appellants objection to the devolution to the NRE fixed deposits on Respondent No. 2 as per the bequest made in the Will, is an afterthought.
17. The Appellant has not disputed before this Court that the loan availed by the testator from the Singapore Bank stands paid with the invocation of the bank guarantee; and the said repayment of the loan or invocation of the bank guarantee has not caused any burden on the estate inherited by the Appellant. Further, as noted above, with the invocation of the bank guarantee, some part of the NRE fixed deposits also stood utilized by the SBI simultaneously. All these events happened prior to the grant of the probate on 6th August, 2019 and was to the knowledge of the Appellant. Therefore, the objection now sought to be raised for the first time in the year 2023 that the remaining NRE fixed deposits are outside the scope of the probate and the Will is untenable and not bona fide.
18. The finding of the learned Single Judge that the NRE fixed deposits were intended to be continued for ten years to secure the bank guarantee issued by SBI stands to reason, in the facts admitted by the Appellant and, with the bank guarantee ceasing to exist in the year 2016, the condition of maintaining the NRE fixed deposits for a continuous period of ten years has become otiose.
19. The learned Single Judge has reasonably interpreted the condition attached to the bequest at paragraphs 16 to 24, which reads as follows:-
16. To now understand the controversy, it would be pertinent to reproduce the requisite clause of the Will dated 21.05.2015 which reads as under: –
As regards the NRE Fixed deposits kept with SBI NRI Branch Mumbai in the name of Banga Harbans Singh, as mentioned at serial no. 5 under the heading Moveable Properties in the Details of properties as mentioned above, these deposits should be continued to be maintained for a period of not less than ten (10) years and the Bank Guarantee granted against these deposits is to continue for a period of not less than ten 10 years, Provided both Banks continue to Grant and extend the bank Guarantee facility. On the basis of above condition being met/adhere to, the said NRE Fixed deposits and NRE account should be given to Mr. Banga Vikas (holding passport no. YA4408600) who is resident of 194, 931/1 charoennakom road, soi 15/ A.Klongthonsai, Klongsan, Bangkok 10600 Thailand.
(Emphasis added)
17. It is not under challenge that some loans had been taken on behalf of Late Shri Harbans Singh Banga, father of the parties to the present petition and the Bank Guarantees had been furnished to secure the said loans in the Will. It was provided that these Bank Guarantees be kept alive for at least ten years and whatever is left and the above being adhered to, NRE fixed deposits and NRI account be given to the applicant/respondent No. 2.
18. There is no challenge that the loans against which the Bank Guarantees had been furnished got paid in July, 2016 and the Bank Guarantees were encashed in view of the liabilities of Late Shri Harbans TEST.CAS. 36/2017 Page 5 of 6 Singh Banga being cleared.
19. The entire object of keeping the Bank Guarantees alive was purely to meet any outstanding liabilities. The condition of ten years was imposed in an anticipation of the liabilities of Late Shri Harbans Singh Banga taking not less than ten years in getting satisfied. Looking at the intent of the Will, it is evident that the Bank Guarantees were kept alive only for meeting the outstanding liabilities of Late Shri Harbans Singh Banga.
20. Since the liabilities have got satisfied in the year 2016, the Bank Guarantees had been invoked. When the entire objective and purpose of keeping them alive had already been satisfied, there was no reason to keep the bank Account alive thereafter. The period of ten years was not a condition precedent to devolution of proceeds to respondent no.2 but was merely to ensure that the children of Late Shri Harbans Singh Banga were not burdened with the liabilities incurred by him during his lifetime.
21. The non-applicant/petitioner having derived the benefit under the Will dated 21.05.2015 to the extent of twelve immoveable properties bequeathed to him for which the respondent No.2 did not object, he is now trying to manipulate facts in order to deny the benefits so granted to applicant/respondent No. 2 under the Will dated 21.05.2015.
22. The language used in the Will dated 21.05.2015 is that these deposits should be continued to be maintained for a period of not less than ten years Provided both Banks continue to grant and extend the bank guarantee facility.
23. The period of ten years was subject to both the Banks continuing to grant and extend the Bank Guarantee facility. Once the loan itself has been paid and the requirement of keeping the Bank Guarantees has been satisfied TEST.CAS. 36/2017 Page 6 of 6 within the timeframe of ten years, there is no question of non-satisfaction of the condition of continuing the bank account for not less than ten years.
24. The respondent No. 2 is entitled to the bequest as made in his favour in respect of the State Bank of India, NRI Branch, Mumbai.
20. The interpretation given by the learned Single Judge to the said stipulation of ten years of the Will is reasonable and requires no interference. The Appellant himself has not pleaded any other reason/basis for the condition of ten years stipulated by the testator in the Will with the said bequest. The argument of the Appellant that the condition of ten years has to be observed perfunctorily does not commend to us.
21. The submission of the Appellant that the interpretation of the bequest is not within the jurisdiction of the Testamentary Court is incorrect and contrary to the settled position of law as noted by the Supreme Court in Navneet Lal v. Gokul1 and Sadaram Suryanarayana v. Kalla Surya Kantham2.
22. Accordingly, the present appeal is bereft of merits and is dismissed.
ACTING CHIEF JUSTICE
MANMEET PRITAM SINGH ARORA, J
MARCH 22, 2024/hp/rhc/aa
1 (1976) 1 SCC 630
2 (2010) 13 SCC 147
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FAO(OS) 37/2024 Page 2 of 2