Sh. Jagir Singh vs The State And Ors.
2008 Latest Caselaw 1310 Del

S.No. 26
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+     TEST.CAS. 13/2007
                                                                Dated: 11.08.2008

      SH. JAGIR SINGH .......           ..... Petitioner
                      Through Ms. Savita Aggarwal, Advocate

                    versus

      THE STATE AND ORS.                         .... Respondents

Through

%11.08.2008

CORAM:

Mr. Justice S. Ravindra Bhat

1.    Whether reporters of local papers may be
      allowed to see the judgment?                        Yes

2.    To be referred to the Reporter or not?              Yes

3.    Whether the judgment should be reported
      in the Digest?                                      Yes



Mr. Justice S. Ravindra Bhat (Open Court)

1. The petitioner has sought for grant of probate in respect of a Will dated 13.01.1969 of one

Waryam Singh (hereafter called "the Testator"), his father and the father of respondent No.2.

TEST.CAS. 13/2007 1 of 6 According to the petition averments, the Testator had executed the concerned Will bequeathing his

entire estate including immovable property being A-36, Hauz Khas, New Delhi-110016 to the

petitioner. The petitioner avers that the second respondent was disowned from inheriting any portion

of the Testator's estate, following a fatal joint attack by him and respondent No.2, his son Kirpal

Singh.

2. The petitioner relies upon a First Information Report No. 131/68 registered against the

respondent No.2 and his son Kirpal Singh. It is claimed that said two respondents/defendants

underwent trial till 24.4.1975.

3. According to the petitioner, the Will was validly executed and attested by three witnesses who

have been named in the petition. It is also claimed that the deceased Testator was survived by legal

heirs respondents 2 to 6 and he had appointed the petitioner as his executor. According to the latter,

the value of the immovable property is worth Rs. 42 lakhs.

4. The petitioner alleges that since he was residing and working in Kuwait for more than three

decades till 1998 he was unaware about that transpired and that on his return to India, he realized that

the Will was not traceable by the respondent, his sister. He, therefore, served the second respondent

(his brother) with a legal notice demanding partition of the property on the basis of the original sale

deed of the property mentioning about existence of the Will. It is claimed on 28.10.2006, the said

respondent resisted notice claiming exclusive ownership of the immovable property at Hauz Khas. The

TEST.CAS. 13/2007 2 of 6 petitioner claims that the said respondent did not dispute existence of the Will.

5. According to the petitioner, the cause of action for filing these proceedings arose sometimes in

2003 when he was informed by the 4th respondent about the Will and subsequently in 2006 when he

obtained a copy of the decree after much effort and after writing to the Municipal Corporation of Delhi

(MCD). According to the petitioner, copies of these records as well as the mutation recorded in favour

of the second respondent were made available under the Freedom of Information Act, 2005. On the

strength of these averments, the petitioner claims for grant of a probate.

6. The second respondent has filed objections. He claims to have filed a suit for permanent

injunction and declaration against the Testator, (his father), for a declaration that the said Testator

Waryam Singh had no interest in the property A-36, Hauz Khas being only a Benamidar. He also

alleges that a relief of a permanent injunction restraining Waryam Singh from alienating or transferring

or creating any interest in the property was sought. According to the averments in the reply, the suit

was registered as S.No. 220/1969 and decreed on 03.05.1971 by the then Sub-Judge First Class, Delhi

Sh. V.S. Aggarwal in his favour. According to the second respondent, the Court declared that he was

the real and true owner of the property. A copy of the said judgment and decree dated 03.05.1971 has

been placed on the record.

7. The second respondent contends that the findings of the trial Judge were carried in appeal; the

appeal being RFA No. 27/1972 was dismissed on 03.05.1972. Latter, the matter was carried in second

TEST.CAS. 13/2007 3 of 6 appeal thos this Court being RSA 64/72. Copies of the appeal and certified copies of the statements of

Sh. Kundan Singh and Sh. Waryam Singh have been placed on the record. The order of this Court

dated 11.08.1972, directing the parties to appear before the trial court on 22.09.1972 is also produced

as a part of the record.

8. The second respondent further contends that the suit which was remitted by order of this Court

in the Regular Second Appeal was ultimately compromised on 05.09.1977. A copy of the same is part

of the record. In these circumstances, it is contended that the Testator did not have any competence to

execute the Will and, therefore, the relief claimed in these proceedings cannot be granted.

9. Learned counsel for the petitioner contended in reply that the documents placed on the record

are suspect and that the last order dated 05.09.1977 was in Suit No. 428/74 and not in the earlier

proceedings. It was, therefore, contended that the petitioner is competent to maintain the present

proceedings.

10. It is evident from the above discussion that the narrow point to be decided is whether the

present probate proceedings would be appropriate and maintainable having regard to the averments in

the reply of the second respondent. The petitioner does not deny the existence of a decree; indeed, he

has mentioned about it in the schedule to the petitioner. However, the petitioner is contesting the

validity of those proceedings and decree; it is argued on his behalf that Waryam Singh never went to

Court in the proceedings or got his statement recorded. According to the learned counsel, at the

TEST.CAS. 13/2007 4 of 6 relevant time in 1969, the Testator was hospitalized on account of the attack by the second respondent

and his son.

11. The documents on the record, particularly, copies of the proceedings disclose that late Waryam

Singh, the Testator, was defendant in the suit filed by the second respondent, and had at a later stages

of the proceedings consented to a decree and even compromised the dispute with the second

respondent. Those proceedings have attained finality. The petitioner's contention appears to be that

those orders were procured by playing fraud and without the consent of the Testator. The petitioner,

therefore, is attacking the validity of that decree and the legal proceedings on the ground of their not

being genuine. However, that issue cannot be gone into in the present probate proceedings. As long as

the previous decree concerning the same property stands, its effect would be that Waryam Singh did

not have any right or title to bequeath it to anyone much less the petitioner. It is a matter of record that

Waryam Singh died on 10.11.1978. In these circumstances, as long as the compromise decree dated

05.09.1977 continues to bind the parties (the petitioner not disputing the fact that the testator was a

party in that suit), no probate can be granted in respect of the Will.

12. It may be that the petitioner has grievance in respect of the previous legal proceedings and may

perhaps be entitled to maintain a proceeding for declaration yet that is not an issue which can be

appropriately gone into in the present proceedings under Section 277 of the Indian Succession Act. In

these circumstances, the objections as to the maintainability raised by the respondent are well founded.

TEST.CAS. 13/2007 5 of 6

13. The petition is, for the above reasons, returned. It is, however, open to the petitioner to seek

appropriate remedies in accordance with law.

                                                   S. RAVINDRA BHAT,J


AUGUST      11, 2008
dkg




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