Ambica Mengi vs State & Ors
2015 Latest Caselaw 8472 Del

$~14.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+     TEST.CAS. 54/2011
      AMBICA MENGI                                 ..... Petitioner
                        Through: Mr. Birender Chaudhary, Advocate

                        versus

      STATE & ORS                                  ..... Respondents
                        Through: Mr. Dhruva Bhagat, Advocate for R-2
                        R-3 is ex-parte.

      CORAM:
      HON'BLE MS. JUSTICE HIMA KOHLI

                        ORDER

% 15.10.2015

I.A. 21926/2015 (joint application u/O XXIII R 3 CPC)

1. The present application has been jointly filed by the petitioner

and the respondents No.2 and 3, all class I heirs of Smt. Krishna

Chopra, mother of the parties, stating inter alia that they have arrived

at a negotiated settlement through court annexed mediation as

recorded in the Settlement Agreement dated 11.09.2015. They

request that the present petition be converted into a regular civil suit,

and the Settlement Agreement be taken on record and a decree be

passed in terms thereof.

2. To substantiate their submission that the probate petition can be

converted into a regular civil suit and decreed in terms of the family

agreement recorded in the Settlement Agreement dated 11.9.2015,

learned counsels for the parties rely on a decision in the case of

Harinder Singh Kochar vs. State and Ors. reported as 173(2010) DLT

365, where a Single Judge of this Court had answered a reference

received from the ADJ under Section 113 read with Order XLVI Rule 1

CPC, on a query posed as to whether a petition seeking probate of a

will can be treated as an ordinary civil suit.

3. To put in a nutshell, the facts of the aforesaid case were that the

petitioner therein had propounded a will dated 30.08.2006 of Shri S.S.

Kochar and had sought grant of a probate in respect of his estate. The

said proceedings were contested by one of the respondents. The

respondents arrayed in the probate petition included the testator's

widow, his two daughters (respondent no. 4 and 5) and the husband

and children of one of the daughters (respondent No.5). During the

pendency of the probate proceedings, the testator's widow had expired

and the trial court was informed that the parties to the probate

proceedings had compromised their dispute. Thereafter, a compromise

application under Order XXIII Rule 3 CPC was moved by the parties.

After recording the statement of the parties, the trial court directed

that the probate petition be treated as an ordinary suit and be

disposed of in terms of the Compromise Deed. The parties were also

directed to file the prescribed court fee applicable to the ordinary suit

and decree sheet was directed to be prepared.

4. Later on, due to the non-appearance of the parties, the

compromise application referred to above, came to be dismissed.

When the restoration application was filed, some reservations were

expressed by the Court below as to whether a decree should be drawn

and it was in that background that the reference was framed by the

learned ADJ and transmitted to the High Court for an opinion. Before

giving an opinion in the captioned case, the learned Single Judge had

framed the following three issues:-

"(1) Could a petition seeking probate of a will, be treated as an ordinary civil suit?

(2) Was it not contrary to law to pass a decree on a petition, in which court does not decide title or even rights of parties?

(3) If not, what type of civil suit, such a petition could be treated and how the court will decide as what court fee should be fixed and by which from the parties?"

5. After examining the legal position and the case law on the

subject, including the decision of the Calcutta High Court, Patna High

Court and Madras High Court, in the cases of Birendra Nath Banerjee

& Ors. vs. Shibaram Aditya & Ors. reported at AIR 1952 Cal 473,

Mutukdhari vs. Smt. Prem Debi & Ors., AIR 1959, Pat 570 and

P. Jothi Bai vs. Dorairaj & Ors., AIR 2002 Mad 191, respectively, it

was observed that probate proceedings are special in nature and are

unlike civil proceedings in context and character mainly because of the

nature of the duties, rights and privileges created under the Indian

Succession Act, 1925. Keeping in mind the fact that ordinarily, the

courts make an endeavour to promote family settlement and in view of

the fact that in the case in hand, the learned single Judge had noticed

that the trial court had already passed an order for conversion of the

probate petition into a regular civil suit on the basis of a compromise

application, which was accompanied by a Memorandum of Family

Settlement and all the legal heirs of the testator as well as parties to

the probate proceedings had agreed to honour the said compromise,

the reference was answered in respect of the questions framed above,

in the following manner:-

"15. In the light of the above discussion, the reference is answered in the following terms :

Regarding Point No.1 Ans: A petition seeking probate of a Will can be treated as an ordinary civil suit by consent of parties. In the event of the parties seeking a probate as one of the reliefs however, the Court has to ensure that the formality of proving a will is duly complied with.

Regarding Point No.2

16. In the circumstances of this case the order of Court treating the proceedings as a civil suit was not contrary to law since all parties to the probate proceedings were heirs of the Test Case 37/2010 Page 8 testator and further they had entered into a family settlement agreeing to abide by the terms of the Will and accepting it.

Regarding Point No.3 This question is unnecessary in view of the findings of issue no.2."

6. In the present case, the petitioner and the respondents No.2 and

3 are siblings and the only class I heirs of the testator, Smt. Krishna

Chopra. Her husband, Col. R.N. Chopra had pre-deceased the testator.

The petitioner has filed the present petition for seeking probate of a

registered will dated 13.07.2004 executed by Smt. Krishna Chopra

whereunder, she had bequeathed the three immovable properties

owned by her in favour of the petitioner and had divided the movable

properties amongst the petitioner and the respondents No.2 and 3

(brothers).

7. Objections to the probate petition were filed by Sh. Suman

Chopra, respondent No.2, wherein it was stated that late Smt. Krishna

Chopra had executed a duly registered will dated 14.12.2001 and he

had disputed the will propounded by the petitioner. Pertinently, Sh.

Rajan Chopra, respondent No.3 was duly served with the notice in the

petition and he had appeared in person on 02.11.2011, but thereafter,

he did not contest the petition and was finally proceeded against ex-

parte on 21.04.2014. Issues were framed in the present petition on

21.04.2014, whereafter the parties were directed to lead the evidence.

Before the affidavits by way of evidence were filed by the petitioner, a

joint application came to be filed by her and the respondent No.2, for

permission to negotiate a family settlement, if possible. An assurance

was given to the Court that although the respondent No.3 had been

proceeded against ex-parte, his presence would be ensured before the

learned Mediator. As a result, the parties were referred to mediation

on 10.08.2015, which has led to filing of the Settlement Agreement

dated 11.9.2015.

8. Counsels for the parties state that not only have the petitioner

and the respondent No.2 signed the Settlement Agreement,

respondent No.3 is also a party to the same and all the siblings have

jointly and amicably resolved all their pending disputes whereafter, a

family settlement has been reduced into writing. It is in this

background that a request is made by the counsels for the parties that

the probate petition be converted into an ordinary suit and be decreed

in terms of the Settlement Agreement. They state that once

converted, the civil suit shall be one for seeking partition of the

movable/immovable assets of the deceased and they do not wish to

seek probate of either the will dated 30.08.2006, propounded by the

petitioner or the will dated 13.07.2004, propounded by the respondent

No.2.

9. Having regard to the general law that promotes family

settlements with the object of reducing friction between family

members and encourages family bonding, and being mindful of the

fact that in the instant case, a family settlement has been arrived at

between the parties before the learned Mediator and all the legal heirs

of late Smt. Krishna Chopra have joined hands to enter into a

compromise and they have agreed to abide by the terms of the

arrangement recorded in the Settlement Agreement dated

11.09.2015, and furthermore, taking into consideration the legal

position which empowers the Court to convert a probate petition into

an ordinary civil suit for partition, as elaborated in the case of Harinder

Singh Kochar (supra), this Court is of the opinion that in the given

facts and circumstances of the case, there is no impediment in treating

the probate petition as an ordinary civil suit for partition as requested

by the parties. The Registry is directed to convert the petition into a

civil suit and register it accordingly.

10. In view of the submissions made by the counsels for the parties,

as noted above, the Settlement Agreement dated 11.09.2015 is taken

on record. The parties shall remain bound by the terms and conditions

thereof. The suit is decreed in terms of the Settlement Agreement

dated 11.09.2015, while leaving the parties to bear their own

expenses.

11. Decree sheet shall be drawn by the Registry only after the

parties deposit the requisite court fee payable on the plaint, in

accordance with law.

12. The suit is disposed of.

HIMA KOHLI, J OCTOBER 15, 2015 rkb/ap