Delhi High Court
Sushila Gopalan And Anr. vs State on 13 November, 2018
$~21&22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TEST.CAS. 53/2006
SUSHILA GOPALAN AND ANR. ..... Petitioners
Through: Mr. Manu Nayar, Ms. Meenakshi
Bhatia and Ms. Maitreyee Joshi,
Advs.
versus
STATE ..... Respondent
Through: None.
AND
+ TEST.CAS. 54/2006
SUSHILA GOPALAN & ANR. ..... Petitioners
Through: Mr. Manu Nayar, Ms. Meenakshi
Bhatia and Ms. Maitreyee Joshi,
Advs.
versus
STATE ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 13.11.2018
IA No.10003/2018 (under Section 10 of the CPC), IA No.15360/2018 (u/S
151of the CPC) and IA No.15361/2018 (u/S 10 of the CPC) in Test. Cas.
No.53/2006.
IA No.10000/2018 (under Section 10 of the CPC), IA No.15362/2018 (u/S
151 CPC) and IA No.15363/2018 (u/S 10 of the CPC) in Test. Cas.
No.54/2006.
1. The petitioner, in these Testamentary Cases seeking probate/letters of
administration, with respect to (a) the documents dated 6th November, 2003
and 15th March, 1999 claimed to be the validly executed last Will of Smt.
Sheela Devi wife of late Shri R.L. Chawla; and, (b) document dated 3rd
June, 1995 claimed to be the validly executed last Will of late Shri R.L.
Chawla, respectively has filed these applications seeking stay of proceedings
in both these testamentary cases stating, that the documents seeking
probate/letters of administration of which these testamentary cases have
been filed are also subject matter of probate petitions pending in the Court
of Ms. Sujata Kohli, Additional District Judge, Tis Hazari Court, Delhi filed
by one Kamla Mehinderatta seeking probate thereof as the Will of the said
deceased persons and in which probate petitions, though filed after these
testamentary cases, recording of evidence is substantially complete.
2. I have enquired from the counsel for the petitioners/applicants, what
purpose will be served by staying further proceedings in these testamentary
cases, awaiting the outcome of the proceedings aforesaid pending before the
Court of Additional District Judge. It is felt that whichever way the
proceedings pending before the Additional District Judge are decided, will
be determinative and the parties cannot be permitted a second round to
prove or disprove the documents as the Wills of the deceased, in these
proceedings, in which issues even have not been framed.
3. The counsel for the petitioners/applicants agrees but expresses
apprehension that if the petitioner in the probate petitions pending before the
Additional District Judge does not take appropriate steps for proving the
documents claimed to be the Will and/or to cross-examine the witnesses of
the parties who have filed objections, and those probate petitions are
dismissed, the petitioners/applicants would also suffer.
4. I am unable to agree. The petitioners/applicants are admittedly a party
to the probate petitions pending before the Additional District Judge. The
position of all the parties, in the probate petitions, who are supporting the
document of which probate is sought, is the same, even if are impleaded as
respondent. It is thus always open to the petitioners/applicants, even though
respondents in those probate petitions, to, if feel that the petitioner in those
probate petitions is not taking the requisite steps for proving the documents
claimed to be the Wills, lead evidence to prove so. Similarly it is always
open to the petitioners/applicants supporting those probate petitions, to
cross-examine the witnesses of the parties opposing those probate petitions.
Of course this will be subject to the learned Additional District Judge,
before whom the probate petitions are pending, issuing necessary direction
to avoid duplication and ensure that no delay is caused thereby. The
apprehension expressed is thus not tenable in law.
6. There is always possibility of more than one person being beneficiary
of a Will and all beneficiaries not joining in filing petition seeking
probate/letters of administration of the document as a Will. Probate, under
Section 222 of the Indian Succession Act, 1925 can be applied for and
granted only to the appointed Executor, who may not be a beneficiary under
the Will. In such circumstances, the beneficiaries under the Will or the
beneficiaries who have not joined in filing of probate/letters of
administration petition and have been impleaded as respondent therein,
cannot be left at the mercy of the Executor or the beneficiaries who have
applied. At the same time, each beneficiary cannot be permitted to
separately apply for probate/letters of administration. The same if
permitted, will lead to several rounds of proceedings, to prove the document
as a Will, with each successive proceeding improving over the earlier and
the witnesses to the document claimed to be the Will also having an
opportunity to change their statement.
7. It is for this reason only that I have hereinabove observed that the
position of all parties in a probate petition is the same, as in a suit for
partition, and there is no such thing as a plaintiff and a defendant.
8. The counsel for the petitioners/applicants states that the aforesaid
serves the purpose of the petitioners/applicants and in view thereof no
purpose will be served in keeping these petitions pending.
9. The applications are disposed of with above observations.
TEST.CAS. 53/2006 & TEST.CAS. 54/2006
10. These testamentary cases are thus disposed of with liberty to the
petitioners/applicants to, in the probate petitions aforesaid pending before
the Court of the Additional District Judge, in accordance with law take
appropriate steps for proof of the documents as Wills and/or cross-examine
the witnesses of the parties objecting to the said documents being the validly
executed Wills of the deceased persons.
11. No costs.
12. The dates of 15th November, 2018 and 15th January, 2019 in these
testamentary cases are cancelled.
RAJIV SAHAI ENDLAW, J.
NOVEMBER 13, 2018
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