Hitesh Bhardwaj vs Govt. Of Nct Of Delhi & Anr.
2022 Latest Caselaw 1673 Del

$~26
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 24th May, 2022

+     TEST.CAS. 4/2021, I.A. 1038/2022 (u/S 151 CPC)

      HITESH BHARDWAJ                                    ..... Petitioner
                  Through:            Mr. Lalit Gupta, Mr. Atul Singh and
                                      Mr. Priyansh Jain, Advocates.

                         versus

      GOVT. OF NCT OF DELHI & ANR.              ..... Respondents
                    Through: Ms. Shikha Singhal, Advocate for
                              R-1/GNCTD.
                              Mr. Sanjeev Sindhwani, Senior
                              Advocate with Mr. V.P. Rana and Mr.
                              Kunal Mittal, Advocates for R-2.

      CORAM:
      HON'BLE MR. JUSTICE AMIT BANSAL

AMIT BANSAL, J. (Oral)

I.A. 5864/2022 (O-XIV R-2(2) of CPC)

1. The present application has been filed on behalf of the respondent no. 2 under Order XIV Rules 2(2) and (5) of the Code of Civil Procedure, 1908 (CPC) , seeking the following prayers:

"a. frame the following additional issue:

Whether prayer 'a' of the Petition seeking Letters of Administration of the Will dated 22.02.2020 with alterations cannot be granted, being hit by Section 71 of the Succession Act? b. consider and decide the said issue as preliminary issue;"

2. The present testamentary case has been filed by the petitioner under Section 278 of the Indian Succession Act, 1925 (the Act), seeking Letters of

Signature Not Verified Digitally Signed By:AMIT BANSAL

Signing Date:30.05.2022 15:09:18 Administration in respect of the last and final Will dated 22nd February, 2022 of late Mrs. Ramesh Kumari Bhardwaj (Testatrix) who was the mother of the petitioner and the respondent no.2. The Testatrix passed away on 7th/8th March, 2020. The respondent no.2, in another testamentary case bearing Test Cas. No.17/2020 titled as Nitesh Bhardwaj v. Govt. of NCT and Anr. has propounded a different Will dated 14th July, 2014 of the Testatrix, which is pending adjudication before this Court.

3. In the present testamentary case, the following prayers have been made:

"(a) Pass an order granting Letters of Administration in favour of the petitioner, in respect of alleged Will dated 22.02.2020 by late Mrs. Ramesh Kumari Bhardwaj and for administration of her entire estate;

(b) Without prejudice to prayer para (a) and strictly in the alternative, pass an order granting Letter of Administration in favour of the petitioner, in respect of annexed Will dated 22.02.2022 by late Mrs. Ramesh Kumari Bhardwaj, in its original state, omitting the alterations and for administration of her entire estate;"

4. Vide order dated 2nd August, 2021, issues were framed in the testamentary case, which are set out hereinbelow:

"1. Whether late Smt. Ramesh Kumari Bhardwaj legally and validly executed her last Will and Testament dated 20.02.2022?

2. If the answer to the above issue is affirmative, what relief would the petitioner be entitled to?"

5. Evidence by way of affidavit on behalf of the attesting witnesses has been filed, however, the same are yet to be tendered.

6. Senior counsel appearing on behalf of the respondent no. 2 submits that the obliterations/alterations made in the aforesaid Will dated 22nd

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Signing Date:30.05.2022 15:09:18 February, 2022 are neither signed by the testatrix, nor counter signed or marked by any of the attesting witnesses to the Will and therefore, prayer 'a' in the testamentary case as set out above, cannot be granted in terms of Section 71 of the Act.

7. The specific objection with regard to bar under Section 71 of the Act has been taken by the respondent no. 2 in his reply/objections. It has been pointed out to the counsel for the respondent no.2 that the said reply/objections is not on record. During the course of the hearing, a copy of the reply/objections has been handed over by the counsel for the respondent no.2. The counsel to take steps to have the same placed on record.

8. Reliance has been placed by the senior counsel for the respondent no.2 on the averments made in the testamentary case as well as the rejoinder filed by the petitioner to the reply/objections filed on behalf of the respondent no.2 to contend that it is the petitioner's own case that (i) the obliterations/alterations in the Will were not in the hand writing of the testatrix; (ii) obliterations/alterations were not signed by the testatrix; and

(iii) none of the attesting witnesses had signed the said obliterations/alterations.

9. Based on the above, it is submitted that since the obliterations/alterations in the Will are not in accordance with Section 63 of the Act, the obliterations/alterations would have no effect whatsoever and therefore, no probate could be granted of the said altered Will in terms of Section 71 read with Section 63 of the Act. Therefore, it is prayed that the additional issue, as noted above, be framed and the said issued be tried as a preliminary issue as the same does not require any evidence.

10. Reliance is placed on the judgment in Anil Kumar v. Devender

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Signing Date:30.05.2022 15:09:18 Kumar And Ors., MANU/DE/1869/2019 to submit that the Court should not frame omnibus issues in respect of the reliefs claimed and issues should be framed based on the principles laid down in Order XIV Rule 3 of the CPC. Reliance is also placed on the judgment of a Division Bench of this Court in Shakun Jaiswal And Ors v. Anand Pershad Jaisawal And Ors., MANU/DE/0718/2016 (Shakun Jaiswal I) and in the review filed against the said judgment, being Shakun Jaiswal And Ors v. Anand Pershad Jaisawal And Ors., MANU/DE/0631/2017 (Shakun Jaiswal II), to contend that an issue framed in a suit may be tried as a preliminary issue where the suit or any part thereof may be disposed of on an issue of law.

11. Counsel for the petitioner makes the following submissions:

(i) There is no requirement to frame an additional issue as sought by the respondent no.2 as the issue no.1 framed by the Court covers within its ambit the additional issue sought to be framed on behalf of respondent no. 2.

(ii) The bar under Section 71 of the Act cannot be applied in the present case on account of disputed facts. Reliance is placed on the written statement/objections filed on behalf of the respondent no. 2 wherein it has been stated that the obliterations/alterations made in the Will are 'illegible' and 'undiscernible'.

(iii) In terms of Order XIV Rule 2(2) of the CPC, only where the suit or a part thereof can be disposed of on an issue of law, would the Court have the discretion to try such an issue as a preliminary issue.

(iv) The judgments cited on behalf of the respondent no. 2 are not applicable in the facts and circumstances of the present case.

12. I have heard the counsels for the parties.

Signature Not Verified Digitally Signed By:AMIT BANSAL

Signing Date:30.05.2022 15:09:18

13. To appreciate the rival submissions, a reference may be made to the provisions of Section 71 of the Act, which is relied upon by both sides. The same is set out below:

"71. Effect of obliteration, interlineation or alteration in unprivileged Will.--No obliteration, interlineation or other alteration made in any unprivileged Will after the execution thereof shall have any effect, except so far as the words or meaning of the Will have been thereby rendered illegible or undiscernible, unless such alteration has been executed in like manner as hereinbefore is required for the execution of the Will. Provided that the Will, as so altered, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses is made in the margin or on some other part of the Will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the Will."

14. Section 71 of the Act has three distinct parts i.e., (i) the main provision (the First Part); (ii) the exception (the Second Part); and (iii) the manner of proof (the Third Part). This is besides the proviso to the Section. On behalf of the respondent no. 2, emphasis is placed on the Third Part of Section 71 of the Act, which provides that no obliteration/alteration shall have any effect, "unless such alteration has been executed in like manner as hereinbefore is required for the execution of the Will" i.e., in terms of Section 63 of the Act. However, this submission does not take into account the exception provided in the Second Part which is in respect of "words or meaning of the Will have been thereby rendered illegible or undiscernible". The Third Part of the Section qualifies the First Part of the Section, and the Second Part of the Section provides an exception, whereby the Third Part of the Section would not be applicable. Therefore, if the words in the Will have been rendered 'illegible' or 'undiscernible', the provisions of Section 71 of

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Signing Date:30.05.2022 15:09:18 the Act requiring that the obliterations/alterations be proved in terms of Section 63 of the Act will not be required.

15. Respondent no.2 himself has claimed in paragraph 4 of the written statement/objections filed by him, that the corrections and interpolations made out in the Will have rendered it 'illegible' and 'undiscernible'. If that be the case, the requirement of proving the obliterations/alterations in terms of Section 63 of the Act would not be required.

16. Reference may also be made to the proviso to Section 71 of the Act. The proviso to the said Section enumerates various scenarios when the Will, so altered in terms of the main part of the Section, shall be deemed to be duly executed. To illustrate, the scenarios include, if the signature of the testator and the subscription of the witnesses is made in the margin; or on some other part of the Will opposite or near to such alteration; or at the foot or end of or opposite to a memorandum referring to such alteration; and written at the end or some other part of the Will. A reading of the aforesaid proviso to Section 71 of the Act shows that even if the bar under Section 71 of the Act is applicable, the Will would still be deemed to be validly executed if it falls under any of the parameters enumerated in the proviso. Whether the obliterations/alterations in the Will fulfil the requirement of the deeming provision of the proviso is a matter of fact and can only be determined in the trial. Further, whether the Will has been obliterated or altered in a manner to have rendered the same 'illegible' or 'undiscernible' can also be established in trial only.

17. Therefore, I do not agree with the submission made on behalf of the respondent no. 2 that the additional issue sought to be framed, can be decided as a preliminary issue as a question of law only. In this regard, it is

Signature Not Verified Digitally Signed By:AMIT BANSAL

Signing Date:30.05.2022 15:09:18 deemed apposite to refer to the provisions of Order XIV Rule 2 of the CPC as set out below:

"2. Court to pronounce judgment on all issues-(1) Notwithstanding that a case may be disposed of on preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in-force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."

18. In terms of Order XIV Rule 2(2) of the CPC, where issues, both of law and fact, arise in the case and the Court is of the opinion that the case or part thereof can be disposed of on an issue of law only, the Court has discretion to try that issue if, inter alia, it relates to a bar to the suit created by any law for the time being in force.

19. In my considered view, the additional issue as sought to be framed by the respondent no. 2 cannot be decided as an issue of law only. To determine whether the bar under Section 71 of the Act would be applicable in the facts and circumstances of the present case, would be a matter of trial. Therefore, evidence would have to be led to determine whether the bar of Section 71 of the Act would be applicable in the facts and circumstances of the present case.

20. The judgments in Shakun Jaiswal I supra and Shakun Jaiswal II supra would not be applicable in the facts and circumstances of the present case as it was observed in the said cases that the issues framed by the Court

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Signing Date:30.05.2022 15:09:18 as preliminary issues in the said case could be decided without any evidence being led, as the said issues only involved questions of law and did not require any evidence. In the present case, whether the bar under Section 71 of the Act would be applicable can only be decided upon evidence being led.

21. As regards the submission of the respondent no. 2 that additional issue be framed, in my view, the issue no. 1 framed in the present testamentary case would cover in its ambit the additional issue now sought to be framed on behalf of the respondent no. 2. It may be noted that vide order dated 2nd August, 2021, issues were framed in the three testamentary cases filed on behalf of the parties and identical issues were framed in respect of the validity of the Will, which was the subject matter in each of the three cases. Judicial notice can also be taken of various other testamentary cases that come up before the Court where similar issue is framed in respect of the legality and validity of the Will of the testator. Clearly, respondent no. 2 can lead the evidence in support of the bar under Section 71 of the Act, within the ambit of the issues already framed in the present case. Issue no.1 framed in the present case is wide enough to cover in its ambit the bar under Section 71 of the Act . Therefore, there is no requirement to frame an additional issue in this regard.

22. There cannot be any dispute with the proposition laid down in the judgment in Anil Kumar supra relied upon by the respondent no. 2. However, the observations made in the said judgment will not have any application in the facts of the present case as the issue no.1 framed in the present case covers in its ambit, the additional issue sought to be framed by the respondent no.2.

23. The present application has been filed for framing the additional issue

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Signing Date:30.05.2022 15:09:18 as a preliminary issue on the assumption that the said issue can be decided as an issue of law only and no evidence would be required to be led in respect of the said issue. It is not the case of the respondent no. 2 that even if the aforesaid additional issue is framed and decided as a preliminary issue in favour of the respondent no.2, the trial would not be required in the present case in respect of prayer (2).

24. It may also be noted that earlier an application under Order VII Rule 11(d) of the CPC was filed on behalf of the respondent no.2 seeking rejection of the plaint. One of the grounds raised by the respondent no.2 in the said application was that probate in the subject Will cannot be granted as the bar under Section 71 of the Act would apply for the reasons of the Will being altered/obliterated. After some hearing, the aforesaid application was dismissed as withdrawn with liberty to the respondent no.2 to agitate the issue raised in the said application at the stage of trial/final hearing. The present application is an effort on the part of respondent no.2 to reagitate the issues that were raised in the application under Order VII Rule 11(d) of the CPC.

25. The application is dismissed. Respondent no.2 is burdened with costs of Rs.50,000/- to be paid to the petitioner.

AMIT BANSAL, J.

MAY 24, 2022 sr

Signature Not Verified Digitally Signed By:AMIT BANSAL

Signing Date:30.05.2022 15:09:18