Shri Raj Navinder Pal vs State And Ors.
2007 Latest Caselaw 1431 Del

ORDER

Shiv Narayan Dhingra, J.

1. By this order I propose to decide preliminary issues raised in the written statement by defendant about maintainability of the suit.

2. A Probate Petition (later converted into civil suit) was filed by the plaintiff under Section 276 read with Section 278 of The Indian Succession Act for grant of probate to the Will of late Smt. Damodar Devi.

3. Plaintiff pleaded that Smt. Damodar Devi had executed a registered Will on 24.11.1969 vide registration No. 555 in Additional Book No. 3. Vol. 23 pages 99-100. Smt. Damodar Devi died on 6th August, 1971. As per her aforesaid Will she bequeathed property No. 17 A/34 W.E.A. Karol Bagh, New Delhi unto defendants No. 2 and 3 jointly and a plot of land No. 3, Siri Fort Road, Masjid Moth, New Delhi unto the plaintiff exclusively.

4. Plaintiff submitted that deceased/Testator was allotted plot of land No. 26 situated in Sunlight Estate opposite Vinay Nagar, New Delhi. This plot of land was acquired by the Union of India during lifetime of the deceased. In lieu of acquisition of this plot, an alternative plot No. 3 Siri Fort Road, Masjid Moth, New Delhi was allotted to the deceased. The deceased had executed one Will on 27.10.1961 which she specifically revoked by her will dated 3.11.1969. Plaintiff valued the amount of assets likely to come to his hands under the Will of the deceased worth Rs. 15 lakhs. Deceased Smt. Damodar Devi had died issueless. The plaintiff is son of the sister of deceased Smt. Damodar Devi viz. Smt. Narain Devi. Defendants No. 2 and 3 are sons of another sister of deceased Smt. Damodar Devi viz. Smt. Sushila Rani. Plaintiff, defendant No. 2 and defendant No. 3 were the only legal heirs entitled to succeed to the estate of Smt. Damodar Devi and to whom the properties were bequeathed. It is submitted that the Testator, before her death lived in Delhi. She remained with defendant No. 2, who looked after her during her lifetime. She died at place of defendant No. 2. The Will was executed at Delhi. The plaintiff could not apply for probate of the Will earlier (the petition was filed in 1996) because the Will was neither in the knowledge nor in possession of the plaintiff. The Will was disclosed by defendants No. 2 and 3 only in December, 1995 after they had actually distributed/partitioned the property No. 17 A/34, WEA, Karol Bagh, New Delhi amongst themselves on the basis of 1969 Will of deceased and this fact acquired finality under a Civil Suit filed before this Court. The plaintiff filed the petition for probate after learning about the Will for grant of probate of the Will dated 3.11.1969 or grant of letters of administration in respect of assets/estate of the deceased to the petitioner. The probate petition is verified by Mr. Dayanand, Advocate, who was one of the attesting witnesses to the Will dated 3.11.1969.

5. Defendant No. 2 filed 'no objection' to this petition and submitted that Will dated 3.11.1969 was a genuine and duly registered Will. However, defendant No. 3 filed objections to the probate petition and took the stand that the petition was a result of collusion between plaintiff and defendant No. 2. He stated that the probate petition was prima facie barred by limitation since it was filed after about 25 years of the death of the Testator. Smt. Damodar Devi had revoked her this Will during her lifetime itself by a letter dated 21.7.1971 written 15 days before her death. In the letter she expressed her difficulties and circumstances in which she was constrained to execute the Will in question. Defendant No. 3 also pleaded that Plot No. 3 Siri Fort Road, Masjid Moth, New Delhi was registered in the name of his father Shri S.R.Thapar. This fact was in the knowledge of defendant No. 2 and plaintiff but plaintiff and defendant No. 2 never raised any objection to this and to the peaceful enjoyment of the property by his father. The plot was mutated in the name of Shri S.R. Thapar in the year 1971 therefore, probate in respect of this property was not maintainable. The Will under Probate was not executed out of free will and consent of the deceased. The plaintiff did not disclose the names of other near relatives, legal heirs of the deceased. The names of other brothers and sisters of the defendants and Testator were required to be disclosed. Plaintiff had two brothers viz. Dr. Raj Narinder Pal and Raj Surinder Pal and two sisters viz. Smt. Kumari Dhody and Smt. Kailash Devi. Defendant No. 3 also had two brothers viz. Shri Satinder Thapar and Shri Arun Thapar, two sisters viz. Smt. Sushma Taneja and Smt. Parvesh Bhagat and mother viz. Smt. Raj Rani Thapar. Defendant No. 3 raised several other objections. It was pleaded that Mr. S.R.Thapar had entered into an agreement for sale of the said plot long back and a dispute arose between the vendor and the vendee and the matter was finally decided by Hon'ble Supreme Court in favor of Shri S.R.Thapar and this fact was fully known to the plaintiff but he never raised an objection regarding property being in the name of Shri S.R.Thapar. He now had no right to lay claim over the property under the Will.

6. In rejoinder, plaintiff contended that there was a suit between defendant No. 2 and defendant No. 3 being Suit No. 1776 of 1993 titled as Raj Surinder Pal Thapar v. Raj Mohan Pal Thapar qua the property bequeathed upon them by deceased Smt. Damodar Devi under the Will. And this Will, which is now being disputed by defendant No. 3 was relied upon by defendants No. 2 and 3. In the wake of the decree passed by this Court in the above suit on the basis of compromise, defendant No. 3 has now no locus standi to raise an objection against the Will and principle of estoppal shall operate against him. Plaintiff also stated that Smt. Damodar Devi never revoked Will dated 3.11.1969 by any instruction or letter dated 21.7.1971. Regarding other brothers and sisters, it is stated by plaintiff that Shri S.R.Thapar had married twice. Smt. Damodar Devi, Testator was the real sister of first wife of Shri S.R.Thapar. The second wife or the branch of legal heirs originating from the second wife, were not at all concerned with probate of Will dated 3.11.1969 and were not the legal heirs of Smt. Damodar Devi so, they were not necessary parties.

7. Vide order dated 13.10.1998 Learned District Judge before whom this probate was filed, allowed an application under Order 1 Rule 10 CPC made by Smt. Raj Rani Thapar second wife of Mr. S.R.Thapar and Smt. Sushma Taneja, Mr. Satinder Kumar and Mr. Arun Kumar daughter and sons of Mr. S.R.Thapar and permitted them to file objections and be a party to the petition.

8. On another application under Order 20 Rule 9 read with Section 151 CPC made before the District Judge for appointment of Local Commissioner, District Judge passed an order dated 3.6.2003 and appointed Mr. Subhash, Advocate as Local Commissioner and directed him to visit the property No. 3, Siri Fort, New Delhi and to take photographs of the property from inside and outside. It was also directed that if the property was found sealed, it would be de-sealed for inspection and then again sealed and a notice should be given to the authorities concerned. The Local Commissioner was directed to take the police assistance, if there was any interference or obstruction from any party or third party or any builder in executing the commission. A Revision was preferred against this order before this Court wherein this Court observed that it was known to the parties that possession of the property had been handed over to the builder in 1996 and some of the objectors had moved an application for converting probate proceedings in Civil Suit, keeping in view highly contentious dispute. The learned District Judge appointed Local Commissioner before taking note of the fact that the property was in possession of the builder i.e. M/s Sushant Builders Pvt. Ltd. This Court recorded that petitioner (respondent No. 1) had no objection if the application of the objectors was allowed and probate proceedings were converted into ordinary civil suit as that would take care of the issues raised by the builder as well. Thus, the probate proceedings were converted into a civil suit by the orders of this Court. The Court also directed that M/s Sushant Builders Private Limited be made as defendant No. 8. This Court also ordered for withdrawal of the probate petition/suit so converted from District Judge to itself in view of the fact that the value of property involved was more than Rs. 50 lakh. Thus, the probate proceedings stood converted to a civil suit by the order of this Court. After conversion of the probate proceedings into civil suit plaintiff filed an amended plaint and converted the probate petition into a suit for declaration, injunction and possession in respect of Plot No. 3 Siri Fort Road, Masjid Moth, New Delhi. In the suit, Union of India was made as defendant No. 9, M/s Sushant Builders as defendant No. 8. Second wife of Mr. S.R. Thapar and sons and daughters of second wife were already added as defendants No. 4 to 7. The additional facts were stated in the plaint that defendant No. 9 had entered into an agreement for exchange of plot of land No. 26 Sunlight Colony to that of 3, Siri Fort Road, Masjid Moth, New Delhi vide document called Deed of Transfer of Exchange dated 28.7.1972. The Deed of Transfer was followed by execution of Lease Deed by defendant No. 9 in the name of Shri Sita Ram Thapar and lease hold rights were conferred in perpetuity for duration of 99 years by defendant No. 9 i.e. Union of India in favor of Shri S.R.Thapar, since Shri S.R.Thapar had represented to the defendant No. 9 that he was the sole beneficiary to the estate of Smt. Damodar Devi on the basis of Will dated 27.10.1961. Shri S.R.Thapar submitted an affidavit/declaration to this effect confirming that Plot No. 3, Siri Fort Road, Masjid Moth, New Delhi was allotted to Smt. Damodar Devi in lieu of her Sunlight Colony estate and alleging that he was the beneficiary under the Will. Thus, the Lease Deed was executed by defendant No. 9 in favor of Mr. S.R. Thapar on the basis of this representation. Shri S.R.Thapar did not disclose that the Will dated 27.10.1961 had been revoked by Smt. Damodar Devi by a subsequent Will dated 3.11.1969. Shri S.R.Thapar died on 25.5.1997 leaving behind defendants No. 4-7 as his legal heirs from second wife. Plaintiff had been doing correspondence with defendant No. 9 regarding substitution of his name in respect of the plot but defendant No. 9 did not do so however, defendant No. 9 issued a show-cause notice to Shri S.R.Thapar as to why substitution affected in his name be not cancelled. Shri S.R.Thapar neither replied to show-cause notice nor answered any of the letters of defendant No. 9. It is submitted that Shri S.R.Thapar never had a good title to the property. He got the property mutated in his name and got the perpetual lease in his name by concealment of facts therefore, the lease deed executed by defendant No. 9 in favor of deceased Shri S.R.Thapar was vitiated by fraud.

9. Plaintiff submitted that during the pendency of plaintiff's porbate proceedings, defendants No. 4 to 7 also applied for grant of probate qua Will of late Shri S.R.Thapar in the Court of District Court, Delhi, which was registered as probate case No. 267 of 1997. The probate was instituted by Smt. Raj Rani, Mrs. Sushma Taneja, Mr. Satinder Kumar and Mr. Arun Kumar Thapar as petitioners thereto and the plaintiff was not arrayed as respondent in the petition. When the plaintiff learnt about the pendency of this probate, he moved an application under Order 7 Rule 11 CPC on 17.11.1997 and also made an application under Order 39 Rule 1-2 CPC in the probate petition for issue of an injunction restraining both the parties from alienating the property. Vide order dated 13.10.1998, the application of the plaintiff in probate petition filed by defendants No. 4-7 to be imp leaded as interested party was allowed and learned District Judge granted leave to the plaintiff to file objections in the said probate case. Defendants No. 4 to 7 thereafter applied to the Court vide application dated 17.5.1999 for withdrawal of their probate case. However, all objections of plaintiff were kept alive and probate case was dismissed as withdrawn without prejudice to rights of the plaintiff. Defendants No. 4 to 7 thereafter propounded a Collaboration Agreement entered into between Shri S.R.Thapar and M/s Sushant Builders Pvt. Ltd. The said Collaboration Agreement was alleged to be dated 14.10.1996 and as per this Collaboration Agreement, defendant No. 8 was permitted to raise construction of a building consisting of basement, ground floor, first floor, second floor, third floor and terrace. The agreement was witnessed by Mr. Arun Thapar, who is one of the sons of Shri S.R.Thapar from second wife. Despite this, there was no mention of the Collaboration Agreement in the probate case filed by defendants No. 4 to 7. It is submitted that Shri S.R.Thapar had not informed Union of India about the Collaboration Agreement or delivery of possession of the suit property to defendant No. 8 which Shri S.R.Thapar was obliged to do since the plot was under lease from Union of India. Defendant No. 8 came into existence subsequent to the date of alleged agreement. The Collaboration Agreement was not above suspicion and looked to be a forged and fabricated document. Defendant No. 8 had no independent right qua the property and could not claim any superior or better right than that of defendants No. 4 to 7. Possession of the suit plot was of defendants No. 4 to 7 and defendant No. 8 was only permitted to carry out construction on the suit plot. On 20th November, 1999 construction was at initial stages however, after passing of injunction order defendant No. 8 continued with the construction. Defendant No. 8 could not have made construction on account of injunction orders passed by the Court. The construction carried out after the injunction order was illegal. It was also submitted that there was no approved building plan in respect of construction carried, no permission in writing was obtained by defendants No. 4 to 8 from defendant No. 9 to raise a construction. The construction raised was beyond the permissible far limit and was in contravention of municipal laws. Letters were written to DDA against the unauthorized construction and DDA thereafter sealed the suit plot. Upon sealing of suit plot defendants No. 4 to 8 filed Civil Writ in this Court in the year 1999, in the name of Sita Ram Thapar, who had died on 25.5.1997, without disclosing that Shri S.R.Thapar was dead. Plaintiff was not imp leaded as a party. Petition was finally disposed of vide orders dated 23.12.1999 and this Court remanded back the matter for reconsideration after affording a reasonable opportunity to the petitioner (in that writ petition) i.e. Shri S.R.Thapar. Shri S.R.Thapar although dead was directed to appear before Dy. Director (Building) on 6th January, 2000 at 2.00 p.m. Defendant No. 7 and 8 signed the papers/documents/representations in the name of deceased S.R.Thapar by writing "for and on behalf of Sita Ram Thapar" and obtained order of this Court by playing a fraud upon the Court. DDA after in compliance of order of this Court, again decided to seal the property and property was again sealed. Another writ petition was filed by defendant No. 7 and 8 before this Court as Civil Writ No. 5723/2000 for de-sealing the property on the ground that Appellate Tribunal constituted under the provisions of Delhi Municipal Corporation Act was not functioning. When plaintiff learnt about the pendency of this writ petition, plaintiff intervened and the file of Civil Writ No. 7731/99 was requisitioned to verify the truth of allegations made by the plaintiff. Defendant No. 7 and 8 did not want the case file of Civil Writ No. 7731/99 to be re-opened therefore, they withdrew writ petition No. 5723/2000, in absence of the plaintiff and before the date of hearing seeking leave to appeal before Appellate Tribunal of MCD. An appeal was preferred before the Appellate Tribunal against the orders of demolition and the same was dismissed by the Appellate Tribunal. Defendants No. 4 to 7 at the same time, in breach of the orders dated 20.11.1999, entered into an alleged Agreement to Sell with one Mr. Raja Ahmad of Srinagar. Mr. Raja Ahmad filed a suit in May 2000 before Sub Judge-cum-Forest Mobile Magistrate at Srinagar and pleaded that defendant No. 7 had entered into an Agreement to Sell qua the plot and a prayer was made that injunction be granted against sale or disposal of the plot against DDA from acquiring sealing/demolishing or taking any action in respect of the plot. The Forest Magistrate, Srinagar passed an order of injunction dated 22.5.2000 directing the parties to maintain status qua the suit property. DDA filed written statement raising objection of jurisdiction. The suit was, thereafter withdrawn by defendant No. 7.

10. Plaintiff applied for appointment of Local Commissioner to take photographs of the structure due to willful breach of the order of the Court. The hearings of this applications were delayed by defendants No. 4 to 8 however, the District Judge pleased order to appoint Local Commissioner on 3.6.2003. A revision against this was preferred before this Court and this Court during hearing of the revision observed that probate proceedings be converted into Civil suit and transferred the case to itself.

11. Plaintiff filed a plaint and prayed for the relief that the Lease Deed executed by defendant No. 9 in favor of plaintiff be declared as null and void and also sought mandatory injunction directing defendant No. 9 to cancel the Lease Deed executed by it in favor of Shri S.R.Thapar, and to execute a Lease Deed in favor of plaintiff and sought the probate of the Will dated 3.11.1969.

12. While defendant No. 3 i.e. Raj Surinder Pal Thapar admitted the claim of the plaintiff and pleaded that in terms of the Will 1/3 share in the movable assets be released in favor of defendant No. 3, defendant No. 8 took preliminary objection that plaintiff ignored provisions of Section 295 of the Indian Succession Act and in the garb of the order of High Court of converting the probate case into Civil Suit, plaintiff filed an amended plaint seeking all sorts of reliefs not permissible under law and the suit was not maintainable. Another objection taken is that a probate petition must be verified by one of the attesting witnesses. The plaintiff, in the suit failed to follow this mandatory provision of law and therefore, the suit in the present form was not maintainable. It is also submitted that the petitioner had not disclosed all the material facts as required to be disclosed under Section 263, 276 and 278 of Indian Succession Act and therefore, the suit was not maintainable. Apart from these three objections, several other objections were raised by defendant No. 8 which are not relevant to be discussed at this stage. On the basis of pleadings following three preliminary issues were framed apart form other issues:

1. Whether this Court has jurisdiction to try, entertain and adjudicate upon the suit and grant the reliefs claimed in view of the provisions of Section 295 of the Indian Succession Act ?- OPP

2. Whether the suit in the present form is maintainable in view of the provisions of Section 281 of the Indian Succession Act ?- OPD-8

3. Whether all material particulars as required by Sections 263, 276 and 278 of the Indian Succession Act have been disclosed by the Plaintiff? If not, to what effect ? - OPD-8

13. These issues were treated as preliminary issues and the arguments of the parties have been heard on these preliminary issues.

Section 295 of The Indian Succession Act reads as under:

295. Procedure in contentious cases. - In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff and the person who had appeared to oppose the grant shall be the defendant.

14. It is evident that the provisions of Section 295 are procedural in nature and they are meant for advancing the cause of justice as also a step in furtherance of public policy of avoiding multiplicity of proceedings and contradictory findings. In a case for probate, the testamentary jurisdiction has to be exercised by the Court in accordance with the provisions of The Indian Succession Act. However, if during the proceedings for grant of probate, it appears to the Court that there were contentious issues which would require consideration and adjudication of the disputes between the parties like a civil suit, the Court can try the probate proceedings as nearly as possible in the form of civil suit and the provisions of Code of Civil Procedure would be applicable in such case. There is no dispute that in the present case, the contentious issues arose between the parties. It is evident from the pleadings of plaintiff and denial of those pleadings by defendants No. 4 to 8, reproduced above, that there were serious contentious issues involved in the case in respect of property No. 3, Siri Fort Road, Masjid Moth, New Delhi. The property which was initially allotted to Smt. Damodar Devi was registered in the name of Shri S.R.Thapar on the basis of a Will, which was allegedly superseded by another Will and the transfer of property in the name of Shri S.R.Thapar was done on the basis of concealment of facts. The property was further dealt with not only by Shri S.R.Thapar but also by his legal heirs and then a builder stepped into the proceedings during the pendency of the probate petition and a Collaboration Agreement was allegedly executed. While initially the dispute was in respect of a plot of land, during the pendency of proceedings itself a huge building came up on the property and a hotel was being run in the property which was sealed twice by authorities for violation of laws. In view of these contentious issues, the probate proceedings were converted into civil suit with the consent of the parties including the consent of defendants. In fact, when this Court passed the order, the counsel for the parties were present and no opposition was made to conversion of probate proceedings into a civil suit.

15. A perusal of the amended plaint filed by the plaintiff would show that plaintiff had not given any new facts, all those facts which were already there in the form of pleadings of parties have been re-arranged and put in chronological order. The facts regarding defendant No. 8, who was made as a party under the order of this Court have been incorporated and a comprehensive plaint has been filed seeking reliefs on the basis of right of the plaintiff accruing from the Will. Defendant No. 8 or any of the other defendants has not challenged the order of this Court converting probate proceedings into a civil suit and calling the entire matter before itself. The defendants cannot now turn around and challenge the filing of the plaint by the plaintiff, converting the probate into civil suit, on the basis of the same Will which was subject matter of the probate. It is settled law that procedure is handmaid of justice. Section 295 of The Indian Succession Act only prescribe a procedure and does not create any substantive right in the defendant. It provides that the probate proceedings shall take the form of a regular civil suit as nearly as possible. This Court had given directions for converting this probate proceeding into civil suit and gave liberty to plaintiff to file amended suit/plaint and also added defendant No. 8 so that the substantial justice could be done between the parties and all contentious issues raised by the parties could be disposed of. The plaintiff cannot be ousted from case and the suit cannot be held not maintainable because plaintiff had filed an amended plaint comprising all facts.

16. A suit is not defined under Code of Civil Procedure; Section 26 of CPC provides that every suit shall be instituted by presentation of a plaint or in such other manner as prescribed. It is clear that under Code of Civil Procedure the presentation of the plaint is the institution of a suit whereas under the Indian Succession Act, the proceedings are initiated by filing of an application/probate petition. Section 295 provides that when probate proceedings become contentious, the proceedings shall take the form of a regular suit as nearly as may be. Thus, the probate proceedings will merge into the civil suit and the contentious issues raised ought to be tried as a regular civil suit. The filing of a regular civil suit after the orders of this Court does not make the suit as not maintainable. Even otherwise the jurisdiction of a Civil Court is much wider than that of Probate Court. Civil Court while deciding the rights of parties can decide the issue of validity and genuineness of the Will.

17. The contention of the defendant is that a probate proceeding petition is to be verified by at least one of the witnesses of the Will, when procurable. The plaintiff had not complied with this provision of Section 281 of The Indian Succession Act and therefore, suit in the present form was not maintainable. It is settled law that a defective verification of petition for probate cannot have a more serious effect than that of the plaint. A pleading must be verified by party or by a person acquainted with the facts of the case. A petition for probate is therefore required to be verified by an attesting witness since it involves declaration of a Will as a genuine by the Court. However, if an attesting witness is not procurable or a witness refuses to verify, the petitioner would not be helpless and it cannot be said that a petition cannot be filed by petitioner where attesting witness refuses to verify. In such a case, the petitioner can call the attesting witness in the Court and ask him to depose about the Will. In the present case, the petitioner had initially filed a probate petition duly verified by the attesting witness. It is only when amended plaint was filed after the direction of the Court that the verification was done by the plaintiff and not by the attesting witness. However, that would not make the suit not maintainable and the petitioner can always call the attesting witness of the Will as a witness during the examination of witnesses. The issue is decided against the defendant.

18. Sections 263, 276 and 278 of The Indian Succession Act read as under:

263. Revocation or annulment for just cause. - The grant of probate or letters of administration may be revoked or annulled for just cause. Explanation ? Just cause shall be deemed to exist where -

(a) the proceedings to obtain the grant where defective in substance; or

(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or

(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently or

(d) the grant has become useless and inoperative through circumstances; or

(e) the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory of account which is untrue in a material respect.

276. Petition for probate ? (1) Application for probate or for letters of administration, with the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made with, the will or, in the case mentioned Section 237, 238 and 239, a copy, draft, or statement of the contents thereof annexed, and stating, -

(a) the time of the testator's death;

(b) that the writing annexed is his last will and testament;

(c) that it was duly executed;

(d) the amount of assets which are likely to come to the petitioner's hands; and

(e) when the application is for probate, that the petitioner is the executor named in the will.

(2) In addition to these particulars, the petition shall further state, -

(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such delegate.

(3) Where the application is to the District Judge and any portion of the assets likely to come to petitioner's hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judge within whose jurisdiction such assets are situate.

278. Petition for letters of administration. - (1) Application for letters of administration shall be made by petition distinctly written as aforesaid and stating, -

(a) the time and place of the deceased's death;

(b) the family or other relatives of the deceased, and their respective residences;

(c) the right in which the petitioner claims;

(d) the amount of assets which are likely to come to the petitioner's hands;

(e) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or hand some property, situate within the jurisdiction of the Judge; and

(f) when the application is to a District Delegate that the deceased at the time of his death had a fixed place of abode, within the jurisdiction of such Delegate.

(2) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner's hand is situate in another State, the petitioner shall further state the amount of such assets in each State and the District Judge within whose jurisdiction such assets are situate.

19. The defendant has failed to specify as to which of the particulars as required under the above provisions of The Indian Succession Act have not been provided by the plaintiff. The plaintiff in his plaint has clearly given all information about the execution of the Will, time of Testator's death, that the Will was duly executed, the amount of assets which were likely to come to the hands of plaintiff, whether executor was named in the Will or not, what was the place of abode of the deceased. All these particulars have been stated by the plaintiff in detail in his plaint. Apart from that plaintiff has given all other facts which are germane or relevant for the purpose of deciding the suit. I do not find there is any lack of material particulars in the amended plaint, filed by the plaintiff, as required to be given under Section 276 and 278 of The Indian Succession Act. I consider that this issue must go in favor of the plaintiff and against the defendant.

20. Considering that all the three preliminary issues have been decided in favor of the plaintiff, let the case be fixed for day to day evidence before Joint Registrar from 14th August, 2007 onwards.