Sohan Devi vs State
2008 Latest Caselaw 673 Del

JUDGMENT

S. Ravindra Bhat, J.

IA Nos. 7650/04, 7651/04, 7652/04 and 12600/2006

1. One Kartar Singh is alleged to have executed a Will dated 16th November, 1980 and subsequently died. In its terms he had nominated/bequeathed his estate to Smt. Sohan Devi, his wife. She filed the present probate petition under Section 276 of the Indian Succession Act. In the meanwhile a partition suit had been filed by her sons in respect of the estate of Late Kartar Singh.

2. At some stage during the proceedings, this court had directed that suit No. 868/1985 as well as the probate proceedings No. 3.1989 should be listed and considered together. Consequently, both the proceedings were treated as companion matters and were being listed together.

3. Smt. Sohan Devi died on 7.5.2003. However, the order sheets in this case reveal that the death of the petitioner Sohan Devi was not recorded or made known to the Court. This is evident from the orders dated 22.5.2003, 29.5.2003, 6.1.2004 and 25.3.2004 Since on 13.7.2004 there was no appearance on behalf of the petitioner, Probate case No. 3/1989 was dismissed.

4. IA No. 7250/2004 was, therefore, filed by one of the LRs of Sohan Devi, her daughter under Order IX Rule 4 r/w Section 151 CPC. The other applications i.e. IA No. 7650/04 (under Order VII Rule 17 CPC) and IA No. 7651/04 (under Order IX Rule 4 CPC seeking amendment) are consequential as they seek amendment of IA No. 7650/04. Another application IA No. 7652/04 under Order I Rule 10 CPC is for transposition of Usha Choudhary, respondent No. 4 as petitioner in these proceedings.

5. Counsel for the petitioner has referred to the order sheets dated 11.12.1995, 21.3.1997 and 29.9.2003 and other orders to say that both the cases were being heard together. It is averred and contended on behalf of the applicant that she contacted her counsel on 22.10.2004 upon becoming aware of that fact that probate No. 3.1989 has been dismissed. It is averred that the applicant had become the sole representative of the deceased Sohan Devi by virtue of another Will dated 15.10.1986 executed by her (i.e. the said Sohan Devi). In addition, pursuant to directions of the Court, the petitioner filed an affidavit on 25.9.2007 explaining the circumstances which resulted in delay in approaching the court, as the petitioner had died in May, 2003, whereas the application was filed in October, 2004 In this affidavit the applicant states that she was not advised to move for her impleadment as LR and that after being informed on 22.10.2004 about dismissal of the probate petition she moved for inspection and thereafter engaged another counsel who presented the applications.

6. Learned Counsel for the petitioner besides relying upon the averments submitted that the applicant has interest to pursue the proceedings as the sole heir of late Smt. Sohan Devi by virtue of Will also submitted that interest of justice would be served if the abatement is set aside and the applicant is imp leaded in the present proceedings. He has relied upon a judgment reported as Suresh Chander and Ors. v. Mahesh Chand and Ors. 143 (2007) DLT 456.

7. Learned Counsel for the respondent has disputed the petitioner's interest in moving the court. Reliance was placed upon Order IX Rule 4 CPC to say that it is only the party in domain of the proceedings, the late petitioner who could have moved under the said provision. Since late Sohan Devi was the petitioner, upon her death, the proceedings abated. It was submitted that in any event the very same parties, the present applicant, and the other parties to the probate petition, are also parties in the pending suit which was subsequently transferred to the Court of the District Judge.

8. Learned Counsel for respondent No. 6 submitted that the applications do not deserve to be allowed since the petitioner has been less than forthcoming. According to her, the applicant has resorted to falsehood and taken differing stands none neither of which are true. It was also contended that the decision in Suresh Chander's case is inopposite since the respondent/objector in the probate proceedings had died and therefore the court acted within its jurisdiction by relying on Order XXII Rule 9 and Order 1 Rule 10 CPC.

9. It was lastly contended that the late petitioner Smt. Sohan Kaur having approached the Court as an executor, upon her death there was no surviving lis which could have been pursued by any one. In the circumstances, the applicant cannot maintain these proceedings.

10. A consideration of the order sheet and the materials on record would show that a Probate case No. 3/1989 was directed to be taken up after decision in suit No. 868/1985. Undeniably in suit No. 868/1985 Sohan Devi had been imp leaded as a defendant; the heirs of late Kartar Singh were parties to Probate No. 3/1989. The petitioner Sohan Devi and her all children are also parties to the suit; some of them are plaintiffs. When the pecuniary jurisdiction of this court was raised to Rs. 20,00,000/- the suit was transferred, sometime in 2004 to the District Court. However, the present proceedings continued.

11. Smt. Sohan Devi died on 7.5.2003. This was even not known to her the counsel. This is apparent from the subsequent order sheets right up to 13.7.2004 when the petition was ultimately dismissed. This is a matter of record. As to what advice was given to the applicant by her counsel is not something which the court can infer but what can be visualised from the material facts available on record are that the applicant did not move the court; in any event her counsel was unaware of her death.

12. The counsel for the respondent had pointed to para 9 of the affidavit filed by the applicant to say that she was aware as to the necessity of being imp leaded as LR in the suit. In the opinion of the court this does not in any way mean the awareness of the applicant that she could have been imp leaded as a party in the present proceeding. It is not the respondent's case that the petitioner or the applicant are expertis in law or are aware of the consequences of the death of an executor, upon the proceedings.

13. As far as the question as regards the contention that the court should not permit the application to be imp leaded since the only party who had sought for probate being Sohan Devi is concerned, it has to be held that there is a radical difference between normal civil proceeding and a testamentary proceeding. Proceedings under the Succession Act are in rem, where the status of the parties and legatees under the Will is in question. Even if for some reason the original executor dies the court would not be rendered powerless. There are provision in the Indian Succession Act enable it to grant administration of the estate to effectuate the Will. Further the proceedings also show that the applicant was party in the probate case.

14. On an over all conspectus of the circumstances, this court is satisfied that the application setting aside the abatement deserves to be allowed.

IA Nos. 7650/04, 7651/04, 7652/04 and 12600/2006 are accordingly allowed.

TEST. CAS. 3/1989

This court had by its previous order required that the decision in the probate case should be decided after the judgment in CS (OS) 868/1985; that suit has been transferred to the court of Additional District and Sessions Judge, Sh. P.K. Jain and is renumbered. It is submitted that the said proceeding is fixed on 1.5.2008.

In the peculiar circumstances of this case, the court is of the opinion that the same direction should be maintained having regard to the fact that both these proceedings were being taken up together, simultaneously the present proceeding too should be transferred to the same court for a decision on the merits.

It is accordingly directed that probate case No. 3/1989 should stand transferred to be decided by the court of Sh. P.K. Jain , Additional District Judge. The court shall endeavor to complete the proceeding and render final judgment as early as possible in any case within nine months from today. The registry is directed to transmit the records of this case to the court of Sh. P.K. Jain, ADJ, Delhi or to its successor court, for further proceedings. The parties shall be present before Court on 1.5.2008. The Petition, Probate case No. 3/1989 is disposed of in the above terms.