K.V. Kohli (Deceased) Through His ... vs State And Others
2001 Latest Caselaw 1066 Del

ORDER

J.D. Kapoor, J.

1. This is an application behalf of respondent No. 2 under Section 114 read with Section 151 CPC for review of the order dated 4th December, 2000 whereby the petition was restored purportely with the consent of the counsel for the respondent No. 2. Main contention of Mr. Rajiv Nayar, learned counsel for the respondent is that the power of attorney executed by Mr. Vinod Nair in favor of Mini Kohli is itself invalid and not in accordance with law and therefore the application moved by Mr. Vinod Nair for restoration of the petition is by an unauthorised person and liable to be dismissed. Relevant facts need to be capitulated in brief.

2. The instant probate petition was filed on 2nd December, 1987. The petitioner applied for probate on 22nd July, 1991. The petition was dismissed in default on 13th May, 1992. The application under Order 9 Rule 9 was moved on 17th August, 1993 after a lapse of 15 months by one Shri Vinod Nair claiming to be the attorney of Mini Kohli. On 13th November, 1998. Counsel for K.V. Kohli, Mr. H.L. Tiku applied for discharge as a counsel from the present proceedings. Application was allowed.

3. Another counsel Mr. Kirti Uppal who was engaged by the legal heirs also sought discharge from the proceedings on 14th December, 1998. However, vakalatnama was filed only on behalf of Mini Kohli and not on behalf of other legal heirs. Today there is no vakalatnama on record of Mini Kohli in favor of Mr. Uppal.

4. It is contended by counsel for respondent that since there is no power of attorney executed by Mini Kohli and other Lrs in favor of Mr. Vinod Nair and there is no vakalatnama of Mini Kohli in favor of Mr. Uppal, the application for restoration of the petition was not maintainable having been filed by unauthorised person.

5. The application (IA. No. 8679/2000) for restoration of the suit dated 17th August, 1993 was filed by the counsel for the applicant which is accompanied by an affidavit of Mr. Vinod Nair. In the affidavit it was specifically mentioned by Mr. Vinod Nair that the holder of power attorney was Mini Kohli, wife of the petitioner. Thus the application and the affidavit itself disclosed that the same was moved on behalf of Mini Kohli and not on behalf of other legal heirs.

6. In the order dated 9.2.94 this court observed with regard to power of attorney executed by Mini Kohli in favor of Mr. Vinod Nair that the original power of attorney is stated to have been filed in Ex. 239/91 and certified copy of the power of attorney filed in the execution petition is issued by this court under Section 73 of the Indian Evidence Act. The certification issued by the Registry does not appear to be in order or in accordance with law.

7. Vide order dated 11.3.94, the learned Single Judge had observed that he was inclined to deal with any matter relating to this case until the power of attorneys are on record, as too much confusion is caused by not having the proper power of attorney on record.

8. Vide order dated 3.7.95 the Register was directed by the court to go into the question of certification of the power of attorney.

9. The Registrar recommended for detachment of the application Along with affidavit, original powers of attorney, the reply/objections of the plaintiff and the documents filed by her and for further directions that the application be registered as OMP and the applicants should pay court fees of Rs. 2.65.

10. Vide order dated 1.12.99, this court dismissed the application moved on behalf of the legal representatives of defendant No. 4. Learned counsel has pointed out that the applicant was required to file power of attorney as contemplated by law but has not done so till date and apart from these, no certification was issued by the Notary Public attached to the Country Recorder City.

11. First contention of the learned counsel for the petitioner is that since the impugned order was passed with the consent of the counsel for the respondent, the same is no more open to challenge. Secondly, one legal heir is sufficient in law to represent the estate of the deceased. Application for restoration was filed by Mr. H.L. Tikku on 19th August, 1993 being I.A. No. 8679/ on behalf of the legal heirs. The earlier application filed by the respondents bearing IA. No. 7893/93 in suit No. 238/93 raising the same plea was dismissed by this court and as such the same plea is no longer available to the respondent. This question was also considered and decided by this court on 26th July, 1996 in suit No. 238/89 whereby this court observed that the legality of power of attorney will be considered at the time of final hearing.

12. In view of the observations of this court the objections raised by the respondent as to the legality or validity of the power of attorney executed by Mini Kohli in favor of Vinod Nair has to be gone into a trial and therefore needs to be dealt with by way of final adjudication and not on the basis of documents. Order of Registrar dated 3rd July, 1995 was passed in suit No. 695/90 and is not in these proceedings and as such the power of attorney in question was not before the Registrar. In order dated 3rd July, 1999 the learned Registrar said that the application should be registered as an OMP on payment of court fee and be tried separately and for that purpose referred the matter to the Hon'ble Court for detachment of this application. Since the application was neither detached nor any proceedings were held in the application, there is no order of finding as to the power of attorney being invalid or illegal.

13. Since after hearing at length order dated 6th December, 1995 was passed by this court wherein it was observed that the question as to the validity or legality of power of attorney was to be gone into at the trial I find that the objection raised by the respondent as to the validity or legality of the power of attorney is a mixed question of facts and law and therefore needs to be determined by way of a preliminary issue. So far as the question of restoration of the suit is concerned the application was for limited purpose and not for returning the finding as to the validity or legality of the power of attorney.

14. In view of the aforesaid reasons following preliminary issue needs to be framed at first instance for determination.

"Whether there is any valid power of attorney duly authenticated in law in favor of Sh. Vinod Nair? If not, its effect." However, this issue is without prejudice to the rights and contentions of the parties.

15. Renotify on 8th November, 2001.

PR. No. 20/97

16. List the matter before the Joint Registrar for evidence on 26th September, 2001.