Pritpal Singh Sawhney (Deceased) ... vs State And Ors.
2017 Latest Caselaw 4890 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          FAO No. 349/2017

%                                              8th September, 2017

PRITPAL SINGH SAWHNEY (DECEASED) THROUGH LRS.
                                           ..... Appellant
                  Through: Mr. Gurvinder Singh, Adv.
                           versus

STATE AND ORS.                                       ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This first appeal under Section 299 of the Indian

Succession Act, 1925 impugns the judgment of the probate court

below dated 5.6.2017 whereby the petition seeking probate/letters of

administration of the Will dated 2.4.1996 of Smt. Shakuntala widow

of late Sh. Inder Singh was dismissed. Probate petition has been

dismissed as the appellant/petitioner in spite of repeated opportunities

failed to lead evidence.

2. Learned counsel for the appellant has drawn the attention

of this Court to the earlier order dated 12.5.2017, and which is also

impugned in the present appeal, whereby the application under Order

XXII Rule 4 CPC for bringing on record the legal heirs of the

deceased respondent no.2 was dismissed, and in which application

stand of the appellant/petitioner was that respondent no.2 was a

bachelor and therefore he did not leave behind any legal heirs.

Counsel for the appellant/petitioner has drawn the attention of this

Court to the family tree filed by the respondent no.2 himself as per

which respondent no.2 is shown to be unmarried. Learned counsel for

the appellant/petitioner also argues that the other respondents being

respondent nos. 3 and 4 being the nephews of the testator have

already given NOCs for grant of the probate of the Will dated

2.4.1996 of late Smt. Shakuntala.

3. Learned counsel for the appellant states that appellant

will under all circumstances ensure that the entire evidence of the

appellant is positively completed within three opportunities inasmuch

as the main case is an old case.

4. I agree with the counsel for the appellant that there is no

need to bring on record any legal heirs of the deceased respondent

no.2 and therefore, the impugned order dated 12.5.2017 is set aside

inasmuch as the respondent no.2 had died a bachelor. Trial court erred

in requiring the appellant to prove that the respondent no.2 died

bachelor because a negative aspect cannot be proved but only a

positive aspect can be proved.

5. In view of the above, this appeal is allowed and disposed

of by setting aside the impugned judgment dated 5.6.2017 and the

earlier order of the trial court dated 12.5.2017. It is held that there is

no need to being the legal heirs of deceased respondent no.2 on record.

Also, appellant will ensure that such they complete their evidence

positively within three opportunities before the trial court.

6. Appellant will appear before the District and Sessions

Judge (North West), Delhi on 17th October, 2017 and the District and

Session Judge will mark the probate petition to a competent court for

disposal in accordance in with law.

SEPTEMBER 08, 2017/ib                      VALMIKI J. MEHTA, J