Om Parkash Goel vs Jai Prakash Goel And Ors.
2003 Latest Caselaw 1349 Del

JUDGMENT

R.S. Sodhi, J.

1. This petition is filed with a prayer that Probate Case No. 400A/ 2001 pending in District Court be transferred to the High Court and be heard along with Probate Case No. 10/1987.

2. The brief facts of the case as given in the petition under Section 24, CPC are as under:

"2. The father of the petitioner and respondents 1, 7 and 8 Sh. Jugal Kishore s/o Sh. Shiv Dayal died on 28.4.1986 at the age of 85 years. Before his death, he is alleged to have made an unregistered Will on 27.8.1983. By virtue of this alleged Will, he had given virtually all his alleged movable and immovable property to his second son respondent No. 1 and his two sons and in effect excluding all his other sons and daughters. He also named respondent No. 1 as the executor of the Will. A copy of the Will is annexed hereto to as Annexure P1.

3. The mother of the petitioner and respondents 1, 7 and 8 Smt. Muthari Devi w/o Sh. Jugal Kishore died on 3.3.1989 at the age of 85 years. Before her death, she is also alleged to have executed and registered a Will on 7/8.6.1988 at the residence of respondent No. 1 in Model Town. By virtue of this alleged Will, she also had given virtually all her alleged movable and immovable property to respondent No. 1 and his immediate family and in effect excluding all her other sons and daughter. She also named respondent No. 1 as the executor of the Will. A copy of the Will is annexed hereto as Annexure P2."

3. Parties have opposed each other before the District Judge as also in the High Court.

4. It is contended by Counsel for the petitioner that over a period of time various grounds have emerged necessitating the transfer of suit pending in the District Court to the High Court. He submits that respondent No. 7 herein is a handicap person and that an application to declare him as such and to be represented by guardian in the Trial Court is pending disposal before the High Court. He also submits that most of the evidence that parties intend to lead will be common and that the parties are also common. Furthermore, he submits that there is every likelihood of the respondent Nos. 1 to 6 herein over-awing the Additional District Judge as is evident from the affidavit filed by them before the Additional District judge.

5. On the other hand, Counsel for respondent Nos. 1 to 6 submits that in both the suits subject matter is quite different inasmuch as the property to be dealt with is different, the attesting witnesses are different, issues framed are different and executants are also different. Therefore there is no commonality between the two suits sought to be heard together. He also submits that whether the respondent No. 7 is handicap is yet to be adjudicated and the same cannot be used for transfer of the suit. He also submits that by an earlier order of this Court similar transfer application between the parties had been rejected vide order dated 10th October, 1990 in OMP No. 72/1990 and, therefore, that would operate as res judicata. He also submits that the question of over-awing the Additional District Judge is a red-herring and to say the least is scandalous and in any event of the matter, the Additional District Judge is fully competent to take care of himself and his Court. Counsel refers to the judgment of the Supreme Court in Prahlad Singh v. Col. Sukhdev Singh, , on the point of res judicata as also to the judgment of this Court in Mrs. R.S. Jain v. R. Srinivasan, . Counsel also submits that the evidence of the respondent Nos. 1 to 6 herein in the matter pending in the High Court is more of less complete and only the statement of Mr. J.P. Goel remains, while in the District Court evidence is at a preliminary stage.

6. I have carefully gone through the submissions made by Counsel for the parties before me and also the material referred to by them. I am of the view that the question of transfer of probate case from District Judge to the High Court stands substantially concluded by a previous judgment of this Court in OMP No. 72/1990 dated 10th October, 1990 and the same would operate as read judicata.

7. The contention of Counsel for the petitioner that changed circumstances could be taken into consideration may be true those pointed out by Counsel do not but appear to be such as would warrant the case to be reopened. Whether the respondent No. 7 is handicapped or not is a question of fact to be decided in the probate matter pending in the High Court and therefore, no opinion can be expressed on the same, nor can such a submission be accepted at this stage since the matter is sub Judice.

8. The next contention of learned Counsel for the petitioner that respondent Nos. 1 to 6 are trying to over-awe the Additional District Judge by filing affidavits stating their connection with various authorities can hardly be a ground for transfer. To hold that in affidavit where the deponent throws influential names would overawe the Additional District Judge would be very uncharitable to him. Surely, the Additional District Judge has sufficient powers to meet with any exigency that may arise in the matter and to say the least his shoulders are broad enough to stand any attempted brow-beating. Even otherwise, I do not find this to be a ground for transfer of suit under Section 24 of the CPC.

9. In view of the above, CM(M) 590/2003 and CM 1241/2003 are dismissed.

C.M. 590/2003 allowed.

C.M. 1241/2003 dismissed.