RFA 1022/2019 Page 1 of 15

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 12

th

March 2026

Judgment pronounced on: 29

th

May 2026

+ RFA 1022/2019 with CM APPL. 51637/2019

LAXMI KUMAR KAPUR (DECEASED)

THR LRS .....Appellant

Through: Mr. Siddharth Dutta & Mr. Pratyush

Singh, Advocates.

versus

RAVI KAPUR & ANR .....Respondents

Through: Mr. Naresh Thanai, Advocate for R-1.

Mr. Sanjeet Malik, Advocate for R-2.

(through VC).

CORAM:

HON'BLE MR. JUSTICE AMIT BANSAL

JUDGMENT

AMIT BANSAL, J.

1.The present appeal under Section 96 of the Code of Civil Procedure,

1908 (hereinafter ‘CPC’) has been preferred by the appellants,i.e.legal

representatives of original plaintiff, seeking the setting aside of the judgment

and decree dated 30

th

August 2019 (hereinafter ‘impugned judgment’),

passed by the ADJ-02, Rohini Courts, Delhi in CS No. 78742/2016 titled

“Laxmi Kumar Kapurv.Ravi Kapur & Anr.”

2.By way of the impugned judgment, the suit filed by the plaintiff for

partition, possession, declaration and mesne profits has been dismissed.

3.Brief facts necessary for deciding the present appeal are as follows:

RFA 1022/2019 Page 2 of 15

3.1.The original plaintiff and the defendants were siblings, being children

of late Shri Jagdish Chandra Kapur (father) and Smt. Jaiwanti Kapur

(mother).

3.2.The parents of the parties herein jointly owned property bearing no.C-

2/114, West Enclave, Pitampura, Delhi(hereinafter ‘suit property’) by

virtue of a Conveyance Deed dated 21

st

November 1993.

3.3.Both parents executed Wills dated 20

th

April 2006 on identical terms,

whereby each testator bequeathed his/her undivided share in the suit

property in favour of the surviving spouse and thereafter provided for

devolution of the property amongst the legal heirs in specified

proportions.

3.4.The mother of the parties, Smt. Jaiwanti Kapur expired on 8

th

April

2007.

3.5.Thereafter, the father executed a Gift Deed dated 8

th

April 2009,

transferring the first and second floors of the suit property to the

respondent no.1, followed by another Gift Deed dated 15

th

July 2010,

transferring the ground floor to the respondent no.1.

3.6.Subsequently, the father also executed a Will dated 6

th

August 2010,

providing monetary bequests to the deceased plaintiff and the

respondent no.2.

3.7.The father of the parties expired on 28

th

February 2013.

4.The original plaintiff (since deceased) filed a suit bearing CS(OS)

No.1428/2013 before this Court seeking relief of partition, declaration and

mesne profits on the ground that the gift deeds and the subsequent Will were

executed in complete derogation of the mutual Wills dated 20

th

April 2006

and are liable to be declared null and void, against the defendants.

RFA 1022/2019 Page 3 of 15

Subsequently, the said suit was transferred to the District Court on 15

th

February 2016.

5.An application, being I.A.9234/2014, was filed on behalf of the

plaintiff under Order VI Rule 17 of CPC seeking amendment of the plaint to

claim the relief of possession of the second floor of the suit property, which

the original plaintiff claims was bequeathed to him in terms of his mother’s

Will dated 20

th

April 2006. The said application was allowedvideorder

dated 15

th

May 2014.

6.An application under Order XV Rule 3 of the CPC was filed on behalf

of the defendant no.1 seeking disposal of the suit on the basis of pleadings

and material/documents on record. The said application was disposed ofvide

order dated 7

th

March 2018, wherein the Trial Court recorded that since the

controversy related to the interpretation of the Wills of the parents of the

parties herein, the matter can be decided without asking the parties to lead

evidence.

7.During the pendency of the proceedings before the Trial Court, the

original plaintiff expired on 7

th

December 2018 and therefore an application

under Order 22 Rule 3 of CPC was filed on behalf of the plaintiff seeking

impleadment of the legal representatives of the plaintiff. The said

application was allowedvideorder dated 15

th

April 2019.

8.The impugned judgment was passed by the Trial Court on 30

th

August

2019. By way of the impugned judgment, the Trial Court dismissed the suit.

The impugned judgment held that the two Wills dated 20

th

April 2006

executed by the mother and the father of the parties respectively are

identical, but they did not constitute mutual Wills, as no agreement

restricting the rights of the surviving spouse was discernible therefrom.

RFA 1022/2019 Page 4 of 15

There was no element of mutuality or agreement between the parties with

respect to the appropriation of the suit property in any manner. The Trial

Court observed that the language of the Wills conferred exclusive ownership

and complete rights of disposition upon the surviving spouse and did not

create a mere life interest. Accordingly, it was held that late Shri Jagdish

Chandra Kapur (father of the parties) became the absolute owner of the

property after the demise of his wife and was competent to execute the

subsequent gift deeds and Will.

9.Aggrieved by the aforesaid, the present appeal has been filed.

PROCEEDINGS BEFORE THIS COURT

10.Notice in the present appeal was issuedvideorder dated 2

nd

December

2019.

11.The matter was referred for mediation on 18

th

April 2022. However,

as per the mediation report dated 14

th

September 2022, the parties could not

arrive at a settlement.

12.The appeal was admittedvideorder dated 10

th

July 2023.

13.The matter was heard on 10

th

February 2026 and 12

th

March 2026, on

which date the judgment was reserved.

SUBMISSIONS ON BEHALF OF THE APPELLANTS

14.The two Wills dated 20

th

April 2006 are mutual wills, creating binding

and irrevocable obligations. Reliance is placed onNavneet Lalv.Gokul and

Ors.

1

to contend that an agreement between parties executing mutual Wills

may be inferred from the testamentary language or proved through

surrounding circumstances.

1

MANU/SC/0328/1975

RFA 1022/2019 Page 5 of 15

15.The surviving father acquired only a limited life interest and not

absolute ownership. There was no necessity justifying the alienation of the

suit property. Therefore, the gift deeds executed by the father are void, being

contrary to the mutual wills.

16.The identical language used in both the Wills, stating that property

may only be disposed of for necessity, establishes that these were mutual

wills creating a life interest rather than an unequivocal transfer. Reliance is

placed on the judgment inVickram Bahlv.Siddhartha Bahl

2

.

17.If the survivor accepts benefits under the Will after the death of the

testator, the survivor cannot act contrary to the arrangement. Reliance is

placed onDilharshankar C. Bhachehv.Controller of Estate Duty

3

,

Arunkumar and Ors.v.Shriniwas and Ors.

4

,Kuppuswamy Rajav.

Perumal Raja

5

, andVikram Bahl(supra).

18.The respondent no.1, by taking advantage of the old age and

dependence of late Shri Jagdish Chandra Kapur, procured execution of the

gift deeds and subsequent Will through undue influence and fraud.

SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.1

19.The two Wills dated 20

th

April 2006 are not mutual wills but merely

identical wills. Upon the demise of the mother, the father became the

absolute owner of the property. The Wills permitted the surviving spouse to

dispose of the property if required. Therefore, the gift deeds are validly

executed and duly registered. The use of identical terms in the Wills does

not imply an agreement. Reliance in this regard is placed uponHelen Ann

2

2020 SCC OnLine Del 570

3

(1986) 1 SCC 701

4

MANU/SC/0317/2003

5

MANU/TN/0233/1963

RFA 1022/2019 Page 6 of 15

Grayv.Perpetual Trustee Co., Ltd.

6

20.It must be established from the tenor of the will that a clear agreement

existed between the parties not to revoke the Will after the demise of one

party. In this regard, reliance is placed onK.S. Palanisamiv.Hindu

Community in General & Citizens of Gobichettipalayambi

7

.

21.The use of the term “necessity if any” in the recitals of the Wills

executed by the parents does not render the said Wills contingent and

therefore the bequest in favour of the husband was absolute.

22.An Appellate Court should not interfere where the Trial Court has

taken a plausible view. The dispute is purely one of interpretation of wills,

and the Trial Court has rightly decided the same. Reliance is placed on

judgment inV. Prabhakarav.Basavaraj K

8

.

23.The respondent no.1 is willing to honour the bequest made in the

subsequent Will of the father of the parties, dated 6

th

August 2010.

SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.2

24.The two Wills dated 20

th

April 2006 were binding on the parties and

their legal heirs. The Trial Court altered the nature of the pleadings and went

beyond the suit, which is impermissible in law. Counsel for the respondent

no.2 draws attention to the conduct of the respondent no.1, insofar as the

Will of the father dated 6

th

August 2010 required Rs. 25 lakhs to be paid to

the appellant and Rs. 15 lakhs to the respondent no.2, which sums have

never been paid by the respondent no.1.

6

1928 SCC OnLine PC 52

7

(2017) 13 SCC 15

8

(2022) 1 SCC 115

RFA 1022/2019 Page 7 of 15

ANALYSIS AND FINDINGS

25.I have heard the counsel for the parties and examined the record of the

case.

26.In the present case, the mother and the father of the original plaintiff,

as well as the defendants, executed two separate Wills, couched in identical

language, on the same date,i.e.20

th

April, 2006. To begin with, it may be

relevant to refer to the relevant extracts from both the Wills.

27.The relevant extracts from the Will dated 20

th

April 2006, executed by

Sh. Jagdish Chandra Kapur, are reproduced below:

“And, whereas, the Testator is hereby bequeathing his title, right, interest

and share etc. in the above mentioned property unto his wife on the premise

that if the Testator precedes his wife Smt. Jaiwanti Kapur, my share in the

above mentioned property shall devolve upon her and she shall enjoy the

same in her own exclusive rights, interest and control and shall be able to

dispose off the same to meet her necessities, if any.

Save and except the above, if the above property subsists even after the

demise of the wife of the Testator, the same shall devolve upon his other

above mentioned legal heirs in the following manners:-

a) The Ground Floor of the above property shall devolve upon my daughter

Smt. Achla Malhotra and by virtue of this Will, thereby holding her as the

owner of the same,

b) The First Floor of the above property shall devolve upon my elder son

Mr. Ravi Kapur and by virtue of this Will thereby holding him as the owner

of the same,

c) The Second Floor of the above property shall devolve upon my younger

son Mr. Laxmi Kapur and by virtue of this Will thereby holding him as the

owner of the same, &;

d) The Terrace of the Second Floor and above of the said property shall

devolve upon my elder son Mr. Ravi Kapur and younger son Mr. Laxmi

Kapur, in equal share.”

28.The relevant extracts from the Will dated 20

th

April 2006, executed by

RFA 1022/2019 Page 8 of 15

Smt. Jaiwanti Kapur, are reproduced below:

“And, whereas, the Testator is hereby bequeathing her title, right, interest

and share etc. in the above mentioned property unto her husband on the

premise that if the Testator precedes her husband Shri Jagdish Chandra

Kapur, my share in the above mentioned property shall devolve upon him

and he shall enjoy the same in his own exclusive rights, interest and

control and shall be able to dispose off the same to meet his necessities, if

any.

Save and except the above, if the above property subsists even after the

demise of the husband of the Testator, the same shall devolve upon her

other above mentioned legal heirs in the following manners:-

a) The Ground Floor of the above property shall devolve upon my daughter

Smt. Achla Malhotra and by virtue of this Will, thereby holding her as the

owner of the same,

b) The First Floor of the above property shall devolve upon my elder son

Mr. Ravi Kapur and by virtue of this Will thereby holding him as the owner

of the same,

c) The Second Floor of the above property shall devolve upon my younger

son Mr. Laxmi Kapur and by virtue of this Will thereby holding him as the

owner of the same, &;

d) The Terrace of the Second Floor and above of the said property shall

devolve upon my elder son Mr. Ravi Kapur and younger son Mr. Laxmi

Kapur, in equal share.”

[Emphasis supplied]

29.On behalf of the appellants, it is contended that both the Wills were

mutual wills and hence, the surviving spouse did not have the authority to

transfer the suit property except in case of necessity.Per Contra,it is the

case of the respondents that the wills were merely identically termed wills

and did not restrict the surviving spouse from transferring the subject

property.

30.Therefore, the issue to be considered by this Court was whether the

two Wills are mutual wills or they are simply identical wills. Consequently,

RFA 1022/2019 Page 9 of 15

whether there was only a life estate in favour of the father of the parties or

the father was free to deal with the suit property.

31.Counsel for the parties have cited various judicial authorities in

support of their submissions. Therefore, it is deemed appropriate to refer to

some of the authorities cited on behalf of the counsel.

32.InDilharshankar(supra), the Supreme Court held that in order for a

will to be a mutual will, there must be a definite agreement between the

executants that the will would not be revoked or that no disposition contrary

thereto would be made after the death of one of the executants. The said

judgment was followed by the Supreme Court inK.S. Palanisami(supra),

wherein the Court has delved into the question as to what amounts to a joint

and a mutual will. In paragraph 30 of the said judgment, the Supreme Court

quoted extracts fromTheobald on Wills, 19th Edn. (Sweet & Maxwell),

defining the joint and mutual will, the relevant extracts of which are set out

below:

“30. …

"1-011. Persons may make joint wills which are revocable at any time by

either of them or by the survivor. A joint will is looked upon as the will of

each testator, and may be proved on the death of one.But the survivor

will be treated in equity as a trustee of the joint property if the equitable

doctrine of mutual wills applies. Under this doctrine there must be an

agreement for the survivor to be bound by the arrangement between

them; but the mere fact of the execution of a joint will is not sufficient to

establish such an agreement for the survivor to be bound.If this doctrine

applies, a legacy to a legatee who survived the first testator, but

predeceased the second, does not lapse. Where a joint will is followed by a

separate will which is conditional on a condition that fails, the joint will is

not revoked even though the subsequent separate will contains a

revocation clause.

1-012.The term "mutual wills" is used to describe joint or separate wills

made as the result of an agreement between the parties to create

RFA 1022/2019 Page 10 of 15

irrevocable interests in favour of ascertainable beneficiaries. The

agreement is enforced after the death of the first to die by means of a

constructive trust.There are often difficulties as to proving the agreement,

and as to the nature, scope, and effect of the trust imposed on the estate of

the second to die. The revocable nature of the wills under which the

interests are created is fully recognised by a probate court; but in certain

circumstances equity protects and enforces the interests created by the

agreement despite the revocation of his will by one party after the death of

the other without having revoked his will i.e. the survivor's property will

be affected by the trust imposed so as to give effect to the agreement."

[Emphasis supplied]

33.Similarly, in paragraph 31 ofK.S. Palanisami(supra), the Supreme

Court quoted extracts fromHalsbury's Laws of England, 5th Edn., Vol. 102.

The relevant extracts are set out below:

31. Halsbury's Laws of England, 5th Edn., Vol. 102 under the heading

"Testamentary Disposition", in Paras 9 and 10 defines "joint wills" and

"mutual wills" in the following manner:

"9. …

10. Mutual wills.-Wills are mutual when the testators confer on each other

reciprocal benefits, which may he absolute benefits in each other's

property, or life interests with the same ultimate disposition of each estate

on the death of the survivor.Apparently, a mutual will in the strict sense

of the term is a joint will, but, where by agreement or arrangement

similar provisions are made by separate wills, these are also conveniently

known as mutual wills. Wills which by agreement confer benefit on

persons other than the testators, without the testators conferring benefits

on each other, can also be mutual wills. Where there is an agreement

not to revoke mutual wills and one party dies having stood by the

agreement, a survivor is bound by it.”

…

[Emphasis Supplied]

34.InHelene Ann Gray(supra), it was held that merely because two

wills have been executed on the same day and they are couched in similar

language, it would not mean that there was an agreement between the

executants not to revoke the Will.

RFA 1022/2019 Page 11 of 15

35.InKrishna Kumar Birlav.Rajendra Singh Lodha

9

, the Supreme

Court has emphasised that similarity of the terms of purported mutual wills

would not be enough to establish an agreement.

36.What flows from a reading of the aforesaid judicial precedents is that

for a will to qualify as a mutual will, there must exist a clear and definite

agreement between the executants that the arrangement would remain

irrevocable after the death of one of them and that the surviving testator

would not deal with the property contrary thereto. The mere execution of

two wills on the same day that are couched in identical language would not

by itself establish the existence of a mutual will or a binding agreement

restricting revocation or alienation. The agreement between the testators

could be discerned from the tenor of the will. Even though the said

agreement may not be in expressed terms, it should follow by necessary

implication.

37.At this stage, it may be relevant to refer to the observations made by

the Trial Court in the impugned judgment. The relevant

observations/findings in paragraphs 23 and 24 are set out below:

“23. Coming back to the Wills of this Case, the two Wills left by the

parents of the parties though are identical, bequeathing share of one in

favour of another, but there is no element of mutuality or any agreement

between the parents to appropriate the property in any particular, manner

or for particular purpose. The words "shall enjoy the same In his/her own

exclusive rights, interest and control" and the words "and shall be able to

dispose off the same to meet his/her necessities, if any", the words "save and

accept the above, if the above property subsists even after the demise of the

husband/wife of the testator, the same shall devolve upon his/her other

heirs", makes abundantly clear that what was intended by the testator and

testatrix was that his/her share shall be exclusively owned by the surviving

9

(2008) 4 SCC 300

RFA 1022/2019 Page 12 of 15

spouse. Not only exclusive rights were conferred, exclusive interest,

exclusive control and exclusive right to dispose off the property was

conferred. The words to meet his/her necessities does not go to the extent of

creating life interest. The intention of the testatrix was clear that even if the

property survives and remains after the death of her husband, only in that

eventuality her property would go to the heirs in the manner specified.

24. Thus, there was no agreement between the spouses that the

surviving spouse shall acquire life interest only and the intention of the

parents were to give exclusive ownership to the surviving spouse. The

father, upon death of mother of parties, thus became exclusive owner of the

property and was fully competent to dispose off the property without there

being any rider and thus the subsequent gift deeds/Will cannot be

questioned by the plaintiff.”

38.From a reading of the two Wills in the present case, the position

which emerges is that both the mother and the father of the parties made

identical wills on the same date in terms of which their respective share in

the suit property were to devolve upon the surviving spouse. The Wills

executed by the parents of the parties provide that the surviving spouse shall

enjoy the property in his/her“exclusive rights, interest and control”and

“shall be able to dispose of the same”. There is no covenant or binding

agreement restricting the power of alienation of the surviving spouse. The

stipulation that the property would devolve upon the heirs only if the

property subsists after the demise of the surviving spouse further reinforces

the intention to confer complete ownership and dominion upon the survivor.

The language used in the two Wills does not suggest that there was a

condition restricting the right of the father to dispose of the subject property.

If it was the intention of the executants to impose restrictions on the

surviving spouse to dispose of the suit property, they could have used the

words “life estate” or specifically put in proper language, restricting the

RFA 1022/2019 Page 13 of 15

right of the surviving executant to dispose of the subject property.

39.The Trial Court has correctly held that merely on account of use of

the words“shall be able to dispose of the same to meet his/her necessities,

if any”, it cannot be stated that a life interest was created through the said

two Wills. The words “necessities, if any” cannot be read in a manner that a

restriction or a contingency has been imposed on the surviving spouse with

regard to the alienation the property.

40.The appellant has relied upon the judgments inNavneet Lal(supra)

andArunkumar(supra),which lay down the principles to be applied by

Courts in the interpretation of the wills. InNavneet Lal(supra), it was held

that the intention of the testator is to be acquired from the words used in the

will and the circumstances surrounding the execution of the will. In

Arunkumar(supra), the Supreme Court, on the basis of the language used in

the will, came to the conclusion that only a life estate had been created in the

subject property in favour of the spouse. The language used in the will in

said judgment was quite different from the language used in the two Wills in

the present case and the Trial Court has correctly distinguished the said

judgment in paragraph 14 of the impugned judgment.

41.The appellant has placed strong reliance on the judgment of the Single

Bench of this Court inVickram Bahl(supra).In the said case, the dispute

between family members arose out of a will jointly executed by a husband

and wife. Under the said will, the husband and wife, who were joint owners

of the property, provided that upon the demise of one spouse, the rights and

interest of the deceased spouse would “rest with the survivor” and after the

demise of both spouses, different portions of the property would devolve

upon their sons and granddaughters. After the death of the husband, disputes

RFA 1022/2019 Page 14 of 15

arose when the surviving spouse claimed absolute ownership over the

property and sought to deal with the same contrary to the arrangement

contained in the will. The Court held that the document in question

constituted a mutual will since the agreement between the spouses regarding

devolution of the jointly owned property was evident from the language of

the document itself.

42.Clearly, the aforesaid judgment is distinguishable from the facts of the

present case. InVickram Bahl(supra), the will did not confer unrestricted

ownership and powers of disposition upon the surviving spouse. The

language employed in the subject Wills in the present case unequivocally

confers complete dominion and ownership upon the surviving spouse and is

materially different from the language interpreted in the aforesaid judgment.

In the present case, no such restrictive covenant or prohibition against

alienation is discernible from the Wills. Rather, the stipulation that the

property would devolve upon the heirs only if the property subsists after the

demise of the surviving spouse clearly indicates that alienation by the

surviving spouse was contemplated and permitted.

43.The appellant has also relied upon the judgment of the High Court of

Madras inKuppuswami(supra),wherein it was held that the joint will

would become irrevocable on the death of one of the testators, if the

survivor received benefits under the will. However, in the present case, there

is nothing to show that the father of the party received any benefit. The Trial

Court has rightly distinguished the aforesaid judgment.

44.In view of the discussion above, this Court is of the view that the Trial

Court has correctly come to the conclusion that the suit property devolved

upon the father of the parties in an absolute manner and the father was

RFA 1022/2019 Page 15 of 15

competent to deal with the said property in any manner he desired. Hence,

the father was fully competent to execute the gift deeds in respect of the said

property.

45.Insofar as the challenge raised by the appellants with regard to the

validity of the gift deeds and the subsequent Will executed by the father of

the parties is concerned, no averments/pleadings have been made by the

plaintiff in this regard in the plaint. The Trial Court has clearly noted in

paragraph 8 of the impugned judgment that the only challenge of the

appellants disputing the said documents is with regard to the competency of

the father to execute these documents. Paragraph 8 of the impugned order is

set out below:

“8. It may be reiterated here that the fact of execution of the two gift deeds

and the subsequent Will dated 06.08.2010 is not disputed by the plaintiff,

but what is disputed is competence of the father to execute these /

documents.”

46.In view of the discussion above, I do not find any infirmity in the

impugned judgment of the Trial Court so as to require the interference of

this Court.

47.Consequently, the appeal is dismissed.

48.The respondent no.1 shall be bound by its statement to honour the

terms of the subsequent Will dated 6

th

August 2010.

AMIT BANSAL

(JUDGE)

MAY 29, 2026

Vivek/-