Dinesh Chand vs State And Anr.
2005 Latest Caselaw 511 Del

JUDGMENT

R.C. Chopra, J.

1. This order shall dispose of a preliminary issue framed on 22nd April, 1999, as to whether this present probate petition is maintainable or not in view of the preliminary objections raised by respondent No.2 and the principles of res judicata. This order shall also dispose of the IA's Nos.5660/1998, 3048/1999, 4015/1999, 6826/1999 and 12539/1999. IA No.5660/1998 is an application filed by the petitioner for interim injunction under Order XXXIX Rules 1 and 2 read with Section 151 CPC to restrain respondent No.2 from dispossessing him from Shop No.389, Ward No.3, Khari Baoli, Delhi, during the pendency of the probate petition. IA No.3048/1999 is an application filed by the petitioner under Section 151 CPC for preponing of the date of hearing. IA No.4015/1999 is another application filed by the petitioner under Order XXXIX Rules 1 and 2 read with section 151 CPC. IA No.6826/1999 is an application under Section 151 CPC filed by respondent No.2 for bringing on record subsequent developments and copy of the order passed by the Supreme Court of India in S.L.P.No.7636/1999 and IA No.1239/1999 is an application under Section 151 CPC filed by respondent No.2 for correction/modification of the orders dated 10th December, 1999.

2. The facts relevant for the disposal of the preliminary issue and the aforesaid applications, briefly stated, are that the petitioner has filed a petition under Section 276 of the Indian Succession Act for grant of probate/Letter of Administration in respect of the Will dated 30th July, 1973 alleged to have been executed by late Shri Hari Shankar, father of respondent No.2. According to the petitioner, the deceased was having strained relations with his wife and married off respondent No.2 during his lifetime. He was living with the petitioner, his nephew. The petitioner alleges that in view of the services rendered by the petitioner to the deceased testator and the fact that the respondent No.2, daughter, was happily married, the deceased executed a Will dated 30th July, 1973, bequeathing all his properties, including his share in Shop No.389, Khari Baoli, Delhi in favor of petitioner. It is pleaded that respondent No.2 filed a suit for possession and damages against the petitioner in the Court of Civil Judge, Delhi, claiming possession of the aforesaid shop. In the said suit, the petitioner had set up the aforesaid Will dated 30th July, 1973 on the basis of which an issue was framed by the learned Trial Court as to whether there was any Wilnor not in favor of the petitioner. The Trial Court answered this issue in favor of the petitioner and dismissed the suit filed by respondent No.2 vide judgment dated 30th August, 1997. The respondent No.2 filed an appeal against the judgment and degree which was allowed by the learned Additional District Judge vide orders dated 2nd May, 1998 and the judgment and decree of the Trial Court was set aside. It was held that the Will was not genuine. A decree for possession therefore, was passed in favor of respondent No.2 and against the petitioner. It is admitted that a Regular Second Appeal filed by the petitioner was dismissed by the High Court on 17th March, 1999 and the SLP filed by the petitioner was dismissed by the Supreme Court of India, vide orders dated 12th July, 1999.

3. The respondent No.2 in her reply has raised preliminary objections to say that the present petition is not maintainable in view of the fact that the Will in question has already been declared forged and fabricated and this question cannot be re-agitated afresh. It is also pleaded that this petition is barred by principles of res judicata and is an abuse of the process of law. It is also pointed out that this petition for the probate of the Will has been filed after about 25 years of the alleged execution of the Will. The prayer of the petitioner for ad interim injunction against his dispossession from the shop in question in execution of the decree passed in favor of respondent No.2 is also opposed on the ground that the Will being set up by the petitioner is a forged and fabricated document which issue stands concluded between the parties in view of the findings given by the Civil Court and upheld up to Supreme Court of India.

4. Learned counsel for the petitioner has vehemently argued that this petition for probate of the Will is not barred by principles of res judicata inasmuch as the Civil Court which tried the suit for possession filed by respondent No.2 was not competent to s.; . It is also argued that till the disposal of the present probate petition in which the genuineness of the Will in question is to be examined, the petitioner's possession of the shop in question should be protected, otherwise the petitioner would suffer irreparable loss/injury as he would be dispossessed in execution of the decree. Thereafter in case he succeeds in the probate petition, he will have to file a fresh suit for possession against respondent No.2 for recovery of the said shop.

5. Learned counsel for respondent No.2, on the other hand, argues that principles of res judicata may not be squarely attracted to this petition as the Civil Court was not competent to try the probate petition but on the principle of issue estoppel, the parties stand precluded from re-agitating the question of genuineness of Will which has already been adjudicated upon by a Civil Court. It is submitted that the findings of the Civil Court that the Will propounded by the petitioner was a forged and fabricated document have become final inter se parties and as such it would be utter abuse of the process of law if on the basis of the same Will, the petitioner continues to hold on to the shop and obstruct the execution of the decree which has been passed by a competent court and upheld up to Supreme Court of India.

6. After hearing learned counsel for the parties, considering the pleadings and the documents on record, this Court finds that Section 11 of the Code of Civil Procedure does not stand in the way of the petitioner. The reason is that the Civil Court trying the suit for possession and damages filed by respondent No.2 was not at all competent to try the present probate petition. One of the fundamental conditions contained in Section 11 of the Code of Civil Procedure is that the former suit between the same parties should have been in a Court competent to try the subsequent suit in which such issue has been subsequently raised. Therefore, it cannot be held that in view of Section 11 of the Code of Civil Procedure, the present probate petition filed by the petitioner is barred by res judicata.

7. However, it is well-settled that in case an issue raised by the parties has been tried by a Court of competent jurisdiction, the parties get bound by the findings there on and are precluded from re-agitating the same issue in subsequent proceedings. If this principle is not adhered to, there would be no end to litigation as an unscrupulous litigant may continue to re-agitate the same issue in spite of decision against him by a competent Court. Finality must be attached to a decision of a court between the same parties.

8. In this case, the respondent No.2 filed a suit for possession and damages in respect of the shop in question against the petitioner in which the petitioner took the plea that respondent No.2 was not entitled to a decree of possession in view of the Will dated 30th July, 1973, in his favor. On the basis of this plea of the petitioner, the learned Trial Judge framed Issue No.2 in the suit which reads as under:-

"2. Whether there is a valid Will in favor of defendant No.2 and he is owner of the property? (OPD)."

9. The learned Trial Judge answered this issue in favor of the petitioner and dismissed the suit filed by respondent No.2 but the Appellate Court vide judgment dated 2nd May, 1998, reversed the orders of the Trial Court and held that the said Will was not genuine. In paragraphs 7 to 15 of the judgment, the learned Additional District Judge discussed the evidence led by the parties in regard to the Will in question and came to the conclusion that the Will was suspicious on the face of it. It was held that the Trial Judge had not properly appreciated the evidence on record while coming to the conclusion that the Will was a genuine document. These findings were upheld up to Supreme Court of India and as such the petitioner and respondent No.2 are precluded from re-agitating the question of the genuineness of Will in any other proceeding including the present probate proceedings. If after getting an adverse finding against the Will in question the petitioner is permitted to re-agitate the same question and lead evidence again with a view to show that the Will is genuine and validly executed by the deceased, then where is the sanctity of earlier decision. The judgment of Apex Court in Chiranjilal Shrilal Goenka (deceased) through L.Rs. (supra) does not help the petitioner inasmuch as in that case the issue before the Court was of the finality of probate proceedings and exclusive jurisdiction of probate Court to pronounce upon the question of validity of Will. The question of "issue estoppel" was not before the Court. Therefore, this Court has no hesitation in holding that on the principle of issue estoppel, the petitioner is debarred and precluded from pleading that the Will dated 30th July, 1973 was genuine and validly executed. In this petition, there is no other issue except the validity and genuineness of this Will which already stands adjudicated between the petitioner and respondent No.2. This petition, therefore, is not maintainable. Issue is answered against petitioner.

9. Since this petition is not maintainable, the petitioner has no case for grant of an ad interim injunction, as prayed. The petitioner cannot resist the execution of the decree for possession obtained by respondent No.2 in accordance with law.

10. The petition as well as IAs., therefore, stand dismissed.