Dr. Anupam Bhargava vs State & Ors.
2009 Latest Caselaw 999 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

         + IA No. 13591/2008 in Test. Case No. 10/2008
         *
% 26.03.2009                     Date of decision : March 26, 2009

DR. ANUPAM BHARGAVA                                             ....Petitioner

                                       Through: Mr. Vivek Singh, Advocate


                                              Versus

STATE & ORS.                                                    .... Respondents

                                       Through: Mr. M.S. Ganesh, Sr. Advocate
                                                with Mr. K. Seshachary, Advocate
                                                for the R - 2 & 4.
                                                Mr. A.B. Dial, Sr Advocate with
                                                Ms. Ritu Mishra, Advocate for R-3.
                                                Mr. H.L. Tiku, Sr. Advocate with
                                                Ms. Yashmeet Kaur, Advocate for
                                                the R-5.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

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


RAJIV SAHAI ENDLAW, J.

1. The respondent No. 2 in this petition for grant of probate seeks

stay of trial/further proceedings under Section 10 of the CPC for the

reason of having instituted (prior to the institution of this petition) a

petition in the High Court of Madhya Pradesh at Indore for grant of

probate of another Will of the deceased. The date of the Will of which

probate is claimed at Indore is prior to the date of the Will of which

probate is claimed before this Court.

2. The factual matrix in so far as relevant for the present

purposes only is as under.

3. The petitioner before this Court is the executor of a Will dated

24th January, 2006 registered with the office of Sub-Registrar, Noida

on same date of the deceased Sh. K.L. Bhargava. The petitioner

impleaded as respondents to petition, besides the State, respondents

No. 2 & 3 as the sons, respondent No. 4 as the daughter, respondent

No. 5 as the wife/companion of the deceased and M/s. KLB Aashray

Nidhi, a Trust as the respondent No. 6. Under this Will the sons and

daughter of the deceased have been bequeathed minuscule part of

the Estate and bulk thereof is bequeathed to the wife/companion and

the Trust. In the petition instituted in this Court on 4th February,

2008 itself it is mentioned that the respondent No. 2 being the son of

the deceased has filed a probate at Indore in respect of an earlier

Will dated 7th November, 1996 of the deceased.

4. While the present petition is supported by the wife/companion

and the Trust, it is opposed by the sons and the daughter. The

pleadings are complete.

5. The respondent No. 2 son has applied for stay of the present

proceedings for the reason of pendency of prior instituted

proceedings instituted by him at Indore. With respect to the

proceedings at Indore, it may be stated that as originally filed,

besides the other son and daughter (Respondents 3 & 4 herein),

wife/companion was also impleaded as a respondent thereto for the

reason of being the other executor and also a legatee under the Will

of which probate is sought at Indore. The respondent No. 2 after the

institution of the petition in this Court applied for amendment of the

petition filed in Indore. Now the petitioner in this Court has also

been impleaded as the respondent in the Indore court. After

amendment, the petitioner in the Indore court (who is respondent

No.2 here) besides claiming probate of the Will dated 7th November,

1996 has also pleaded that the Will of which probate is sought in this

Court is illegal, false, forged, fraudulent, fabricated and fictitious

document. The wife/companion and the petitioner in this Court have

in the amended petition before Indore court been called upon to

prove the Will dated 24th January, 2006.

6. The Will dated 24th January, 2006 expressly revokes the Will

dated 7th November, 1996 of which probate has been sought at

Indore. Yet another fact which is relevant is that the respondent No.

3 herein i.e. the other son of the deceased had during the lifetime of

the deceased instituted CS(OS) No. 1103/2004 before this Court for

partition of the various properties.

7. The senior counsel for the applicant/respondent No. 2 has

relying upon the principles of Section 10 as enuntiated in Manohar

Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal (1962) Suppl.

(1) SCR 450, Chitivalsa Jute Mills vs. Jaypee Rewa Cement

(2004) 3 SCC 85, Gupte Cardiac Care Centre and Hospital vs.

Olympic Pharma Care (P) Ltd. (2004) 6 SCC 756; National

Institute of Mental Health & Neuro Sciences vs. C.

Parameshwara (2005) 2 SCC 256 in support of the proposition that

the principles of Section 10 of the CPC are applicable to proceedings

other than the suits urged (i) that the Indore proceedings are

previously instituted proceedings; (ii) that the parties to both the

proceedings are the same; (iii) that the matter in issue in the present

proceedings is also directly and substantially in issue in the

previously instituted proceedings in Indore, where as per the

amended petition the Will of which probate is sought in this Court is

also challenged; (iv) that the Indore court is also competent to grant

the relief claimed in this Court. It is thus argued that all the

ingredients of Section 10 are satisfied and the Delhi proceedings

have to be stayed. Reliance is also placed on M/s Arjies

Aluminium Udyog Vs Sudhir Batra AIR 1997 Delhi 232 (DB) to

urge that for applicability of Section 10, not the identity of main

issue or all issues but the identity of matter in issue is the

determining test.

8. The senior counsel for the respondent No. 3 (the other son of

the deceased) has also supported the application under Section 10 of

the CPC and argued that parallel trial cannot be allowed and the

question of the validity of the latter Will will be tried in the Indore

court also inasmuch as that is the defence of the wife/companion, to

the petition before the Indore Court.

9. The counsel for the petitioner while opposing the application

has relied upon Amar Deep Singh vs. State AIR 2006 Delhi 190 in

which the application under Section 10 of the CPC for stay of

subsequently instituted probate proceedings for the reason of

pendency of a prior suit was declined. He has also relied upon

National Institute of Mental Health (supra) to urge that for the

applicability of Section 10, it is essential that the decision in the

previously instituted proceedings should be res judicata in the

subsequent proceedings.

10. The application has also been vehemently opposed by the

senior counsel for the wife/companion. Relying upon Section 276 of

the Indian Succession Act, it has been argued that probate can be

granted of the last Will only; in the present case the last Will is the

Will of which probate has been sought at Delhi; till the said Will is

held to be invalid, there is no cause of action for institution of the

probate petition of an earlier Will at Indore; that in view of the

applicant/respondent No. 2 having himself now pleaded a

subsequent Will in the Indore court, the Indore court cannot proceed

with the grant of probate of an earlier Will. Reliance in this regard is

placed on a recent Division Bench judgement of this Court in Ram

Chander Sabharwal vs. Satish Chander Sabharwal 154 (2008)

DLT 3 (DB) and on another judgement of a Single Judge of this Court

in Rajan Suri vs. State 125 (2005) DLT 433. The Division Bench

was faced with a plea of the probate petition being barred under

Order 2 Rule 2 of the CPC for the reason of the dismissal of petition

seeking probate of a subsequent Will. In that context, the Division

Bench held that the cause of action for grant of probate of an earlier

Will would arise only when the petition for grant of probate of a

subsequent Will was dismissed and thus the plea of Order 2 Rule 2

CPC was not available. In Rajan Suri(supra), the petition for grant

of probate of an earlier Will was dismissed under Order 7 Rule 11 of

the CPC in view of a latter Will of the deceased.

11. I had at the outset of the hearing only enquired from the senior

counsel for the applicant/respondent No. 2 as to how Section 10

could be invoked inasmuch as the case for grant of probate of the

Will sought for in Delhi was not pending before the Indore court. The

reply of the applicant/respondent No. 2 is that if the petition before

the Indore Court is defeated for the reason of a subsequent Will (of

which probate has been sought in this Court) being proved, there

would be no impediment to the grant of probate by this Court. I had

also drawn the attention of the senior counsel for the

applicant/respondent No. 2 to Section 271 of the Indian Succession

Act which is as under:-

"S. 271 Disposal of application made to Judge of District in which deceased had no fixed abode.-When the application is made to the Judge of a district in which the deceased had no fixed abode at the time of his death, it shall be in the discretion of the Judge to refuse the application, if in his judgment it could be disposed of more justly or conveniently in another district, or, where the application is for letters of administration, to grant them absolutely, or limited to the property within his own jurisdiction"

12. It was enquired as to whether the insertion of the aforesaid

provision negated the mandatory application of Section 10 of the

CPC to such proceedings and as to whether the same did not

incorporate the principle of primacy of fixed place of abode and

convenience and equity in such proceedings, in place of the principle

of prior institution enshrined in Section 10 of the CPC.

13. It is not in dispute that the properties both movable and

immovable, forming the Estate of the deceased are situated both at

Indore and Delhi. It is also not in dispute that this Court also has the

jurisdiction to entertain the petition. It is also not in dispute that the

deceased since 2004 till his demise on 17th December, 2006 was

residing at Noida and died at a hospital in Noida. At this stage, it can

thus be presumed and was not controverted by the senior counsel for

the applicant/respondent No. 2 that the deceased at the time of his

death had a fixed place of abode at Noida. The counsel for the

petitioner and the senior counsel for the wife/companion also did not

argue that the Indore court did not have the territorial jurisdiction

and it could possibly be not so argued in the face of property being

situated at Indore.

14. In the aforesaid state of facts it has to be decided whether the

proceedings before this Court are to be stayed under Section 10 of

the CPC or not.

15. In my opinion, the applicant/respondent No. 2 is not entitled to

the relief of stay of trial/proceedings before this Court. What is for

adjudication at present, whether before this Court or before the

court at Indore is the validity of the subsequent Will dated 24th

January, 2006. If the said Will is found valid, the proceedings on the

basis of earlier Will shall necessarily fail. Thus, we are at this stage

left with only the proof of the subsequent Will. Which Court is

competent to go into the validity thereof, this Court or the Indore

court.

16. In my view, it has to be necessarily this Court for the following

reasons:-

(i) The executor named in the said Will is the petitioner before

this Court. Under Section 222 of the Indian Succession Act

probate shall be granted only to an executor appointed by

the Will; it is only when the named executor renounces or

fails to accept the executorship that Will may be proved and

the probate may be granted to the person who would be

entitled to administration in case of intestacy. The executor

is the dominus litus. It is so held in Ananga Mohan Pal Vs

Balai Chand Pal AIR 1921 Calcutta 124. The executor

named in the said Will having opted to apply probate

thereof in this Court, he cannot be compelled to prove the

said Will before the Indore Court. It was held in the said

judgment that the choice of forum of the Executor should be

given effect to, unless there are sufficient grounds made

out.

(ii) Substantial part of the Estate of the deceased under the

subsequent Will has been bequeathed to the Trust. The

Trust is a party to the present proceedings but not a party

before the court at Indore. Trust being a beneficiary/legatee

under the subsequent Will is a necessary and/or a proper

party to any proceedings contesting the validity of the said

Will.

(iii) The question of proof of the subsequent Will was raised

first before this Court. It was only thereafter that the

applicant/respondent No. 2 applied to the Indore Court to

plead in the petition instituted there the invalidity of the

subsequent Will. Similarly, the petitioner before this Court

was impleaded as party to proceedings before Indore Court,

after institution of proceedings before this court. Under

Section 21 of the Limitation Act, the principle is that where

after the institution of suit a party is added, the proceedings

as regards him are deemed to have been instituted when he

was so made a party. Thus qua the petitioner herein, it

cannot really be said that the Indore proceedings is the

previously instituted proceedings.

(iv) Section 271 of the Indian succession Act also brings into

play the discretion in the matter of entertaining probate

proceedings. In my view the same negates the strict

application of Section 10 of the CPC. As aforesaid, the

question for adjudication at present is the proof of the

subsequent Will. What has to be thus considered is that

which is the convenient Court for proving of the subsequent

Will.

(v) In this regard I find the following factors relevant:-

(a) The subsequent will is registered at Noida which

though not falling within the jurisdiction of this Court

is a part of the National Capital Region and in

practical life, it is found that today there is no

difference whatsoever for the citizen whether living in

a colony in Delhi or in the adjoining house falling

within Noida. Owing to proximity, in the event of

records of registration being required, as in my

opinion would be required considering the challenge

thereto, it will be more convenient to have the said

records in this Court rather than in the courts at

Indore.

(b) The executor to the subsequent Will is a resident of

Delhi. As aforesaid the probate can be granted to the

executor only. Though the applicant/respondent No. 2

has in his pleadings alleged that the petitioner

executor is in collusion with the wife/companion but

there does not appear to be any direct relationship of

the petitioner executor to the deceased. The

deceased, if has executed the subsequent Will, appears

to have reposed confidence in the executor. The

executor cannot be compelled to prove the Will at a

distance in the courts at Indore and may not be

equipped to or chose to do so and it would result in

Will being not established/proved.

(c) The witnesses as disclosed to the subsequent Will have

given their addresses of Delhi and the presumption is

that they are available at Delhi only. The Will has to be

proved by the testimony of the witnesses. The

witnesses cannot be compelled to appear in a Court

beyond a certain distance (Order XVI Rule 19 of CPC).

However, this Court can compel the appearance of the

said witnesses. The law preventing compulsive

appearance of the witnesses beyond certain distance

may prejudice the proof of the said Will. The Privy

Council as far back in Sm Ashtbhuja Ratan Kuer Vs

Thakur Debi Baksh Singh AIR) 1944 PC 29 has held

that in the exercise of discretion, the availability of

witnesses and their convenience is a relevant factor.

(d) The beneficiaries/legatees as borne out by the

subsequent Will are also at Noida having proximity to

this court in comparison to the proximity to the Courts

at Indore.

(vi) It is not as if Delhi is an alien place for the

applicant/respondent No. 2 or his brother and sister who are

supporting him in this application. When they instituted a suit

for partition against the deceased, claiming the properties to

be of the HUF and which properties now form part of the

Estate of the deceased, they chose to file the same in Delhi and

not in the Courts at Indore. It thus cannot be said that the

applicant/respondent No. 2 or his brother and sister will suffer

or prejudice in any manner whatsoever by the trial before this

Court.

17. I may also notice another contention of the senior counsel for

the wife/companion. It was contended that the applicant/respondent

No. 2 is a senior counsel of the High Court of MP at Indore and the

wife/companion is even now suffering and will continue to suffer if

compelled to litigate at Indore, for the said reason. It was argued

that she is having difficulty in engaging and retaining advocates

because of huge clout and goodwill enjoyed by the

applicant/respondent No. 2 there and that her case is suffering for

the said reason. However, since no such averments have been made

on affidavit, I am not entering into the said question.

18. The application is therefore dismissed. However, with no

orders as to costs.

RAJIV SAHAI ENDLAW (JUDGE) March 26, 2009 RB