Delhi High Court
Lt. Col. (Retd.) Gurvachan Singh ... vs State on 22 July, 2009
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ I.A No. 3411/2009 in Probate No.43/2006
Judgment reserved on: 15th July, 2009
% Judgment decided on : 22nd July, 2009
LT.COL.(RETD) GURVACHAN SINGH
AND ANR ..... Petitioners
Through : Mr. Raman Kapur, Adv.
versus
STATE ..... Respondent
Through : Mr. Manish Kumar and Mr. Amit
Kumar, Advs. for Relation Nos. 4, 5 & 6
Mr. Siddharth Yadav, Adv. for the
objector Nos. 1 to 3
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
MANMOHAN SINGH, J.
1. By this order I shall dispose of I.A No. 3411/2009 filed
under Section 151 of the CPC, 1908 by the objectors (hereinafter
referred to as respondents) in Probate No. 43/2006, which is pending
adjudication in this court.
2. It is submitted by the respondents that the probate petition
has been filed by the petitioner after a gap of more than three years since
the demise of Sh. K.G. Khosla who expired on May 7, 2003. Late Sh.
K.G. Khosla and Late Smt. Kanwal Khosla left behind four Class 1
heirs, three daughters who are the objectors herein and one son, Sh.
Deepak Khosla who is allegedly attempting to usurp all the movable and
immovable properties of the late parents on the virtue of a fabricated
will. To lay such claims and efforts of their brother fruitless, the
objectors filed CS (OS) No. 1194/2003 for partition, declaration and
injunction which suit as is pending for framing of issues and hearing of
pending applications filed by the respondents herein is also pending
adjudication in this court.
3. Thereafter, the petitioner herein filed the present probate
petition. The respondents submit that in CS (OS) 1194/2003, the
petitioner's defence is that Late Sh. K.G Khosla died intestate though in
the probate case he is alleging that the will produced by him is the last
and final will of Late Sh. K.G Khosla. It is in these circumstances that
the respondents have filed the present application seeking a direction
that CS (OS) 1194/2003 and probate no. 43/2006 be tried and heard
together. In support of their prayer, the respondents state that several
original documents filed by them in the suit are required for
consideration in the probate. The respondents clarify that they are not
praying for consolidation of the two cases but only for the same to be
heard together as the issue in both is the same, i.e. whether Late Sh. K.G
Khosla and Late Smt. Kanwal Khosla died intestate or not.
4. In their reply, the petitioners submit that the application of
the respondents is only an attempt to delay the process of this court as
the probate case is at the stage of conclusion, since the attesting
witnesses have been cross-examined and the next date for hearing is
01.05.2009 for recording of evidence of the remaining two witnesses.
On the other hand, CS (OS) 1194/2003 is pending wherein even the
preliminary issue of maintainability is as yet undecided as are several
other interim applications.
5. The petitioner submits that the probate proceedings are
appropriate proceedings for proof of the last will and testament of Late
Sh. K.G Khosla and avers that proceedings in CS (OS) 1194/2003
should be stayed awaiting outcome of the present proceedings which
will consider and decide the validity of the will.
6. The respondents have submitted a few decisions which look
into the matter of trying probate proceedings and a related suit together.
Two of these judgments and the relevant portions therein are reproduced
hereinbelow:
(i) Balbir Singh Wasu v. Lakhbir Singh and Ors.
(2005) 12 Supreme Court Cases 503
"6. However, having regard to the fact that in this case
a large number of issues would overlap, we are of the
view that both the probate proceedings and the civil
suit should be clubbed and heard together by the
District Judge who would be competent to hear and
dispose of both the civil suit as well as the probate
proceedings."
(ii) Nirmala Devi v. Arun Kumar Gupta and Ors.
(2005) 12 Supreme Court Cases 505
"4. Therefore, now remains the question whether the
probate proceedings could be clubbed with the suit.
Learned Counsel for Respondent 1 submitted that the
civil suit is of the year 1987 and that despite various
orders of the High Court, it has remained pending and
the probate proceedings are initiated by the appellant
in 1997 regarding the will of 1984. Be that as it may,
the decision in the probate proceedings on the question
of proof of the Will will have a direct impact on the
suit. Only on this short ground and without expressing
any opinion on the merits of the controversy between
the parties, we request the learned District Judge,
Gopalganj to make it convenient to dispose of the
probate proceedings along with civil suit at his earliest
convenience and preferably within a period of six
months from the date of receipt of a copy of this order
at its end."
7. I have gone through the submissions of both parties. The
submission of the respondents is that both the matters, i.e. Probate no.
43/2006 and CS (OS) No. 1194/2003 are somewhat inter-related and
inter-connected and would be taken up together at the time of final
disposal of the suit. It has not been disputed by the respondents herein
that cross-examination of two witnesses are over in the probate
proceedings and that the suit is still at the stage of framing of issues
which could not be framed due to filing of an application under Order
VI Rule 17 CPC by the respondents herein itself. It would not be
justified to pass an order for recording the evidence in probate matter
or to try both cases together at the time of trial, but at the same time I
feel that the proceedings in CS (OS) No. 1194/2003 are to be expedited,
so that at the final stage both the matters can be clubbed and heard
together.
With these observations, I.A. No.3411/2009 is disposed of.
CS (OS) No. 1194/2003
8. Let the proceedings in CS (OS) No. 1194/2003 be expedited
and the same be listed on 24th August, 2009 for framing of issues in the
suit and disposal of pending application.
Probate No. 43/2006
9. List the probate proceedings on 15th October, 2009 before
Joint Registrar for recording the evidence of remaining witnesses.
MANMOHAN SINGH, J
JULY 22, 2009
SD
