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2017 Supreme(Del) 4671
IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J. MEHTA, J.
Jagdish Prasad (Since Deceased) Through Lrs. - Appellants
Versus
Government of NCT of Delhi & Ors. - Respondents
FAO Nos. 289 & 387 of 2010
Decided On : 16-11-2017
Advocate Appeared:
For the Appellants : Mr. D.K. Rustagi, Mr. Mayank Rustagi, Mr. Apoorv Rastogi
For the Respondents: Mr. Pawan K. Bahl
The main legal point established in the judgment is the requirement for proper service in probate petitions and the consideration of conflicting Wills in determining the finality of probate grants.
Headnote:
CPC - Indian Succession Act - 299 - 263 - The court examined whether the appellants were served in the probate petition and held that they were not served. The court also discussed the conflicting Wills and the finality of the probate granted to the respondent. The judgment set aside the probate granted to the respondent and allowed the appellants to contest the probate petition.
Fact of the Case:
The appellants filed a petition for revocation of the probate granted to the respondent, claiming they were never served in the probate petition. The trial court held that the appellants were served, based on the process server's reports. The appellants appealed this decision.
Finding of the Court:
The court found that the appellants were not served in the probate petition and set aside the probate granted to the respondent. The court also directed both probate petitions to be tried together and disposed of accordingly.
Issues: The main issue was whether the appellants were served in the probate petition. The court also discussed the conflicting Wills and the finality of the probate granted to the respondent.
Ratio Decidendi: The court held that the process server's reports, which were relied upon to show service, were not supported by independent witnesses and therefore could not establish that the appellants were served. The court also considered the finality of the probate granted to the respondent in light of the conflicting Wills.
Final Decision: The appeal was allowed, setting aside the probate granted to the respondent and allowing the appellants to contest the probate petition. Both probate petitions were directed to be tried together and disposed of accordingly.
Valmiki J. Mehta, J.
FAO No.289/2010
1. This First Appeal is filed under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908 (CPC) read with Section 299 of the Indian Succession Act, 1925 impugning the judgment of the trial court dated 9.11.2009 by which the trial court has dismissed the petition filed by the appellants herein for revocation of the probate granted vide judgment dated 25.10.1990 to the respondent no.2 herein and who was the petitioner in the probate petition. Respondent no.2 herein had sought probate of the unregistered Will of his uncle Sh. Umrao Singh dated 23.12.1983. The present appellants were respondent nos. 2 and 3 in the probate petition, and they are real brothers of the respondent no.2/petitioner/Sh. Pyare Lal. The disputes therefore are between three brothers and who are sons of Sh. Jawala Prasad. Sh. Jawala Prasad was the real brother of the deceased testator Sh. Umrao Singh.
2. The facts of the case are that the petitioner Sh. Pyare Lal filed probate petition no. 314/1988 for grant of probate of the Will dated 23.12.1983 of the deceased testator Sh. Umrao Singh. In this probate petition, there were a total of 8 respondents. Respondent nos. 2 and 3 of the probate petition were the brothers of the petitioner, and they are the appellants in this appeal as already stated above.
3. None of the respondents appeared. The probate petition was allowed in favour of the petitioner Sh. Pyare Lal in terms of the judgment dated 25.10.1990 after the respondents in the probate petition were proceeded ex-parte because as per the service report the respondents had refused service or were served by affixation.
4. The subject petition under Section 263 of the Indian Succession Act was filed by the appellants/respondent nos. 2 and 3 pleading that they were never served in the probate petition, and therefore, the judgment dated 25.10.1990 granting probate to the petitioner Sh. Pyare Lal be set aside.
5. The only issue which was examined by the trial court in terms of the impugned judgment dated 9.11.2009, and which is also the issue to be decided by this Court, is whether the appellants/respondent nos. 2 and 3 were served in the probate petition no.314/1988 filed by the petitioner Sh. Pyare Lal. By the impugned judgment trial court has held that the appellants/respondent nos. 2 and 3 were served because they had refused service. Paras 9 and 10 of the impugned judgment which talks of service reports of the process server read as under:-
“9. A perusal of record of case PC 314/88 would reveal that after receipt of the case, apart from citation to general public, notices were ordered to be issued to the relations of deceased for 2.12.1988. Process returned unserved for some dates. Some of reports about service of notices upon the applicants/respondents are reproduced here as under:-
i. Report about applicant Jagdish Prasad for date 2.12.1988
Sir,
today i.e. On 1.12.1988, addressee Jagdish Pd. Was searched for service but not found at given address”
Process for 27.4.1989
“today i.e. 26.3.89, after going at given address and on the pointing of petitioner Jagdish Pd was searched, one person met there who admitted that addressee Jagdish Pd was there and same is being sent for receipt of process but after sometime, said person returned and replied that the addressee was not present there”. All this shows that addressee was avoiding his service. The petitioner stated that the person had come outside was same Jagdish Pd.
Report is sent.
Again for same date
Sir,
Today i.e. on 12.4.1989 on the pointing of petitioner Jagdish Pd was searched for service of process. Person found at spot disclosed that he was Jagdish Pd. Petitioner also identified him as Jagdish Pd but after inquiring about notice, said person replied that he was not Jagdish Pd. One neighbor identified him as Jagdish Pd. It shows that the addressee deliberately refused to receive the notice and hence same was affixed. Said person was also identified by petitioner.
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