Delhi High Court
Sanjay Arora And Ors. vs Sudhir Kumar Arora And Ors. on 29 January, 2013
Author: Manmohan
#16
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TR.P.(C) 20/2012
SANJAY ARORA AND ORS. ..... Petitioners
Through Mr. Aaditya Vijaykumar, Advocate
versus
SUDHIR KUMAR ARORA AND ORS. ..... Respondents
Through Mr. Gagan Deep Sharma, Advocate
for R-2 to 4, 6 and 8.
% Date of Decision: 29th January, 2013.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J (Oral):
I.A. 14466/2012 IN TR.P.(C) 20/2012
Allowed, subject to just exceptions.
TR.P.(C) 20/2012 & I.A. 14465/2012
1. Present transfer petition has been filed under Sections 23 and 24 of
Code of Civil Procedure, 1908 for transfer of probate case bearing RC No.
3/2011 pending before Additional District Judge, Tis Hazari Courts, Delhi to
this Court.
2. Learned counsel for the petitioners states that the petitioners have
already filed a suit for partition against respondent no. 1 being CS(OS)
39/2011 in this Court. He further states that vide order dated 10th January,
2011 this Court in CS(OS) 39/2011 stayed the alienation and transfer of
properties which are subject matter of the said suit.
3. Subsequently, respondent no. 1 filed a probate petition in Tis Hazari
Courts being RC No. 3/2011 alleging that the deceased father of the
petitioner had left behind a Will dated 22nd October, 2004 bequeathing the
entire suit property in favour of respondent no. 1. It is the petitioner no. 1's
case that the alleged Will dated 22nd October, 2004 is a forged and fabricated
document.
4. Learned counsel for the respondent fairly states that both the probate
petition as well as civil suit should be tried together. However, he states that
as the pecuniary value of the suit property is Rs. 12,00,000/-, present suit
should be transferred to the District Court and the same should be heard
along with probate petition before the District Court.
5. Having heard the parties and having perused the petition, this Court is
of the opinion that as the pecuniary value of the suit property can only be
determined after the parties have led their evidence in the aforesaid civil
suit, the petitioners' civil suit cannot be transferred at this stage to the
District Court.
6. Further, this Court in Pawan Kumar Chadha Vs. Anil Kumar
Chadha & Anr. I.A. 4339/2008, CS(OS) 1339/2008 decided on 15th July,
2009 has held as under:-.
"6. The question involved in the present transfer application,
in the present circumstances is, whether the probate petition
which was filed subsequent to the present suit is to be
transferred to this court or not. A similar situation arose in
the case of Virender Gupta V/s. Nitender Gupta, 31[1987]
DLT 406 wherein a suit for partition was filed by one party and
the other party had claimed ownership of the suit property on the
basis of Will for which the other party had filed probate
proceedings. The court ordered that the suit and probate
proceedings be tried together on the ground that the issue in one
suit was all embracing and fully covered the entire disputes
between the parties and the applications were accordingly
allowed. A similar situation also arose in the case of Mrs. Rajni
Mehra & Ors. V/s. Shri Pran Nath Mehra & Ors.,
MANU/DE/0822/2001 and similar orders on the same lines were
passed by this Court.
7. In the case of Ravi Khanna vs. Pankaj Khanna and Ors.,
152(2008) DLT 484 it was held that mere pendency of a
suit for partition puts no bar for grant of probate or letter of
administration under the Provisions of the Succession Act. It is
settled law that probate Court has jurisdiction to determine
about the genuineness of the Will and whether the petitioner
who applied for the probate was entitled to grant of probate of
the Will or not.
8. In the case of Nirmala Devi vs. Arun Kumar Gupta and
Ors., (2005) 12 SCC 505, both the probate proceedings and
the civil suit were clubbed and heard together where the civil
suit was filed prior to filing of probate proceedings. Similar
position was reiterated in the case of Balbir Singh Wasu vs.
Lakhbir Singh and Ors., (2005) 12 SCC 503 where the suit
was pending since 1987 and probate was filed in 1997, suit was
transferred and clubbed with probate case pending in the Court
of Sub-Judge.
xxxx xxxx xxxx xxxx
11. Considering the overall facts and circumstances of
the matter, the decision in Virender Gupta V/s. Nitender Gupta
[supra] is binding upon this court and the present application is
therefore allowed. Even otherwise, since both the matters are at
the initial stage, therefore, no prejudice would be caused to the
defendants if the said probate petition is transferred to this
court and tried along with the present suit and in fact, it will
curtail the time of the court, costs of the parties as well as
avoid multiplicity of proceedings. Therefore, it is directed that
the file of the probate petition bearing no.121/2006 titled as
„Smt.Chand Chadda V/s. State & Ors.‟ pending before the
court of learned Additional District Judge, Tis Hazari
Courts, Delhi [earlier pending before the court Smt. Bimla
Makin, Additional District Judge, Tis Hazari Courts, Delhi] be
transferred to this court and the same be tried along with the
present suit bearing CS[OS] no.1339/2009."
7. Keeping in view the aforesaid as well as the fact that this Court is
already seized of CS(OS) 39/2011 which concerns the same set of properties
between the same parties involving common questions of fact and law,
present petition is allowed and probate petition bearing RC No. 3/2011 titled
as 'Sudhir Kumar Arora Vs. State' is transferred from the Court of
Additional District Judge, Tis Hazari Courts to this Court and the same is
directed to be simultaneously heard and tried along with CS(OS) 39/2011.
However, it is clarified that all pleas, contentions and submissions of
respondents including the plea of pecuniary jurisdiction of this Court to try
the aforesaid civil suit are left open. With the aforesaid observations,
present petition and pending application stand disposed of.
MANMOHAN, J
JANUARY 29, 2013
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