Dinesh Chand vs State And Anr.
2007 Latest Caselaw 193 Del

JUDGMENT

J.P. Singh, J.

1. This first appeal is against the order dated 17.3.2005 passed by learned Single Judge. The learned Single Judge had framed the following preliminary issue :

Whether the probate petition is maintainable in view of the objections raised in the reply by the respondent No. 2 (i.e., the daughter of the deceased) and whether the petition is barred by the principle of resjudicata.

2. The miscellaneous applications were also disposed of by the impugned order. The Single Bench held that the petition for grant of probate was not maintainable in view of the earlier judgment passed by the learned Civil Judge, about the validity and genuineness of the same Will, in another matter between the petitioner and respondent No. 2.

3. Briefly the facts are that late Hari Shankar (the testator) was the uncle (i.e. father's brother) of the appellant-Dinesh Chand. Hari Shankar was married and had a daughter who was also married. Wife of Hari Shankar was living separately for eight years and this fact has been mentioned in the Will. In the Will it is also mentioned that his daughter (respondent No. 2 herein) namely Smt. Kamlesh Devi was married and living happily with her family. It is submitted that the appellant herein is the son of real brother of Hari Shankar and had been looking after him and was also helping him in his business. Hari Shankar executed a Will on 30.7.1978 bequeathing all his properties including his shop situated in Khari Baoli, Delhi in favor of the appellant. He has mentioned in the Will that he had been looked after and was served by the appellant when he was in his old age and ill health. Hari Shankar divested his wife and his daughter from his properties. Hari Shankar expired on 15.8.1978. The appellant continued to do the business from the said shop The Will was drawn by Sh. P.S. Gupta, Advocate and witnessed by two attesting witnesses namely Ganga Saran and Budh Lal.

4. The respondent No. 2 (daughter of Hari Shankar) filed a suit for possession in respect of the above said shop claiming herself to be the natural legal heir of the deceased. The suit was contested by the appellant herein by setting up the Will in question and claimed to be the owner of the shop through that Will. The learned Civil Judge framed issues and recorded evidence of the parties and dismissed the suit of respondent No. 2-daughter vide judgment dated 30.8.1977.

5. The daughter preferred an appeal against the said judgment which came up before Additional District Judge, Delhi (ADJ). The ADJ allowed the appeal vide judgment dated 2.5.1998. The learned ADJ made observations against the genuineness of the Will. The appellant herein preferred a regular second appeal (RSA) under Section 100 of the Code of Civil Procedure and also filed a probate petition in respect of the said Will in the High Court of Delhi. The RSA was dismissed by the High Court in liming. Against the said order of dismissal of the RSA the appellant preferred a Special Leave Petition before the Hon?ble Supreme Court of India, which also was dismissed.

6. The probate petition, however, continued and notices were issued to respondent No. 2-daughter who filed reply and objections to the grant of probate. There was a preliminary objection about maintainability of the probate petition on the ground that the matter was resjudicata between the parties and therefore a preliminary issue as reproduced above was framed by the Single Bench of this Court.

7. It is submitted that the appellant continued to remain in possession, however in the year 2004 he was directed to deposit a sum of Rs. 5000/- per month with the Registrar of the High Court. The learned Single Judge has held that the petition for grant of probate in the High Court though not barred by principle of resjudicata, it is barred by the doctrine of issue estoppel and dismissed the probate petition along with the miscellaneous application for grant of ad interim injunction.

8. learned Counsel for the appellant has vehemently argued that only the probate court can deal with the subject of the Will and a finding given on the Will by the civil court is not binding on the probate court and has drawn our attention to Section 273 of the Indian Succession Act which is reproduced hereunder :

273. Conclusiveness of probate or letters of administration. ? Probate or letters of administration shall have effect over all the property and estate, movable or immovable, of the deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted :

Provided that probates and letters of administration granted ?

(a) by a High Court, or

(b) by a District Judge, where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge, and such Judge certifies that the value of the property and estate affected beyond the limits of the State does not exceed ten thousand rupees,..

9. There is no dispute that a probate court after verifying the authenticity and genuineness of the Will will grant probate or letters of administration and has no jurisdiction to give findings on the title of the properties which are subject matter of the Will. However, if a prior civil suit is filed and a Will is set up by the plaintiff than the defendant may raise a preliminary objection regarding the application of Indian Succession Act if so permitted under the law, because the learned Counsel for the respondent had submitted that no probate is necessary in Delhi and the appellant herein also has pleaded so in para-11 of the SLP, which SLP was dismissed.

10. We may say here that even grant of probate does not decide the title of the parties. But if the defendant, as in this case, sets up a Will and accordingly an issue is framed about the authenticity and validity of the Will in the civil suit which has to decide about the title of the parties to the said property and after the evidence is recorded and the Will is either held to be genuine or fake or forged and in that suit the title of the parties is decided, then that finding, in our view, is binding on the contesting parties, specially if it has been upheld up to the Highest Court of India.

11. It goes without saying that more often than not if at the same time a matter is pending in the probate court in regard to a Will and another matter on the basis of the same Will is pending in a civil court, normally both the matters are tried in one court to avoid contradictory judgments. But if the validity or genuineness of a Will already stood decided between the same parties, in our view, the same issues cannot be reopened in a probate court under the Indian Succession Act. The contesting parties are clearly estopped from reversing their positions.

12. The learned Counsel for the appellant has submitted that if probate is granted then any such order can be challenged by seeking revocation under the Indian Succession Act. This argument, in our view, is without any force in the facts and circumstances of the present case because it was the appellant himself who had set up the Will in defense to the suit for possession on the basis of inheritance/title and the finding about validity or genuineness of the Will was upheld by this Court and the Hon?ble Supreme Court of India.

13. The learned Single Judge also framed a preliminary issue on the said question and has reconsidered the matter and has held that in view of the finding rendered on the issue of Will by the lower court and it having been upheld by the Supreme Court, the probate petition was not maintainable.

14. learned Counsel for the appellant has submitted that the judgment of a civil court was a judgment in personam while the judgment in a probate petition is a judgment in rem. In our view that makes no difference in this case because both the judgments have been given in a contest between the same parties and the general public or any third party is not involved in this matter. We also do not agree with contention of the learned Counsel for the appellant that judgment of the probate court will be binding on the civil court, rather the position in this case is reverse because the Will was set up by the appellant herein in defense to a civil suit for possession.

15. Considering all these facts and circumstances we do not find any merit in the appeal. The same is, therefore, dismissed.