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2007 Supreme(Del) 202
High Court Of Delhi
GITA MITTAL
MASTER NITISH ARORA - Appellant
Versus
STATE OF DELHI - Respondents
Probate Case 35 Of 1998
Decided On : 01/31/2007
KAMLESH MAHAJAN, R.S.Dhull
The main legal point established in the judgment is that the requirement of serving notices to near relatives in probate proceedings is essential, and failure to do so can invalidate the probate. Additionally, the court emphasized that even if an application is filed under a wrong provision of law, the court may consider it under the correct provision if the power to grant the application exists.
Headnote:
Probate - Service of Citation - Indian Succession Act, 1925 - [CPC, 1908, Order 9 Rule 13], [CPC, 1908, Order 39 Rules 1 and 2] - Section 145 of the Code of Civil Procedure - Probate Case no. 104/1999 - Suit No. 218/1998 - IA No. 1002/2001 - IA No. 8432/2001 - IA No. 1003/2001
Fact of the Case:
The case involved a dispute over the probate of the last Will and Testament of late Shri Tara Chand. Smt. Santosh Soni claimed to be the legatee in the last Will and Testament, while Shri Harish Chander Arora, the son of late Shri Tara Chand, sought probate of a different Will in favor of his son. The respondent alleged that she was not served with the notices and was not aware of the probate proceedings.
Finding of the Court:
The court found that the respondent was not served with the notices as required by law and that the probate granted to the petitioner was ex-parte and therefore revoked. The court also granted an injunction restraining the petitioner from dispossessing the respondent from the property in question.
Issues: The issues included the service of notices, the maintainability of the applications, and the validity of the probate granted to the petitioner.
Ratio Decidendi: The court held that the respondent was a necessary and proper party to the probate proceedings and should have been served with the citation. The court also ruled that the ex-parte probate granted to the petitioner was invalid due to the lack of service on the respondent. The court further held that the respondent had made out a prima facie case and granted an injunction in her favor.
Final Decision: IA No. 1002/2001 was allowed, revoking the probate granted to the petitioner, and IA No. 8432/2001 was dismissed. IA No. 1003/2001 was allowed, granting an injunction restraining the petitioner from dispossessing the respondent from the property in question.
GITA MITTAL, J.
( 1 ) BY this order, I propose to dispose of IA No. 1002/2001 filed under order 9 Rule 13 of the Code of Civil Procedure, 1908 for short 'cpc' filed by smt. Santosh Soni, respondent no. 1 and IA No. 8432/2001 filed under Order 39 rules 1 and 2 CPC filed by the plaintiff. IA Nos. 1002/2001 and 8432/2001
( 2 ) IT is necessary to notice some essential dates and facts in order to appreciate the issues which are raised. Late Shri Tara Chand was the owner of house No. 2023-A, Rani Bagh, Shakur Basti, Delhi-34. His wife had pre-deceased him. Late Shri Tara Chand was blessed with one son Shri Harish Chander Arora and one daughter Smt. Santosh Soni-respondent no. 2. Shri Tara Chand expired at delhi on 4th June, 1998 leaving behind these persons as his class one heirs.
( 3 ) THESE applications have been necessitated as Smt. Santosh Soni claimed to be the legatee in the last Will and Testament of late Shri Tara Chand dated 30th June, 1995 in her favour. She contends that by a public notice issued in the daily newspaper "veer Arjun" in its 16th February, 1996 issue, late Shri tara Chand had publically announced that his son Shri Harish Chander Arora, his wife Smt. Usha Arora and his son shall have no connection with his movable and immoveable assets and has disowned and disinherited these three persons from succeeding to his assets.
( 4 ) AFTER the death of late Shri Tara Chand, Smt. Santosh Soni had been compelled to institute Suit No. 218/1998 on 18th July, 1998 against Shri Harish chander Arora in the district courts praying for a declaration and injunction in respect of property which forms the estate of late Shri Tara Chand.
( 5 ) IN the meanwhile Smt. Santosh Soni, respondent no. 2 has submitted that apart from filing of the aforenoticed civil suit, she also took steps seeking probate of the last Will and testament dated 30th June, 1995 which was executed by late Shri Tara Chand. On or about 20th April, 1999, the respondent no. 2 filed Probate Case no. 104/1999 before the district courts seeking probate of the Will dated 30th June, 1995. Shri Harish Chander Arora was shown on the list of relatives as her brother and son of late Shri Tara Chand and was served with the notice of the probate petition. Shri Harish Chander Arora had put in appearance in this matter on 24th September, 1999 through learned counsel representing the petitioner in the present case. This matter was thereafter repeatedly adjourned at the request of Shri Harish Chander Arora for filing of a reply.
( 6 ) AT no point of time did Shri Harish Chander Arora disclose either in the civil court before whom the Suit No. 212/1998 was pending or in Probate Case no. 104/1999 that late Shri Tara Chand had left any Will dated 4th June, 1998 in favour of his son Master Nitish Arora or that Shri Harish Chander Arora had filed the present probate case in this court seeking probate of such Will.
( 7 ) IT appears that only on 15th December, 2000 Shri Harish Chander Arora filed a reply in Probate Case no. 104/1999 wherein, for the first time, Shri harish Chander Arora made the following disclosure :-
"that the suit is not maintainable as a probate has been ordered to be issued by a competent court of law in favour of Master Nitish Arora, son of Shri Harish arora by the deceased Shri Tara Chand, whose probate is the issue involved in this case. Hence, this suit is liable to be dismissed on this own ground. "
This reply has been exhibited before this court as Exhibit RW1/p2. Perusal of the above shows that even in this reply, Shri Harish Chander Arora neither made disclosure of either the Will purportedly executed by late Shri tara Chand in favour of Master Nitish Arora which was the subject matter of the present proceedings nor had given any details of the Probate Case in terms of the case number or the court which had granted the probate.
( 8 ) MRS. Kamlesh Mahajan, learned counsel for the applicant Smt. Santosh soni points out that on receipt of the copy of thi
