Back
2019 Supreme(Del) 1466
IN THE HIGH COURT OF DELHI
Yogesh Khanna, J.
Chander Kanta Mishra And Another - Appellants
Vs.
Raj Sharma And Others - Respondents
Civil Miscellaneous (M) No. 648 of 2019
Decided On : 29-05-2019
Geeta Luthra, Adv., Asmita Narula, Adv., Manpreet Kaur, Adv., Jaya Goyal, Adv., S.C. Sharma, Adv., Charan Singh, Adv.
The main legal point established in the judgment is the applicability of the Indian Succession Act, Section 213 and 228 to foreign probate documents and the requirements of obtaining probate under the Indian Succession Act.
Headnote:
Probate - Succession - Indian Succession Act, Section 213, 228 - Apostille Certificate - Trust Deed - Will - [Probate] - [Succession] - [Indian Succession Act, Section 213, 228] - The court discussed the requirements of obtaining probate under the Indian Succession Act and the applicability of the Apostille Convention to foreign probate documents. The court allowed the application under Order XXII Rule 3 CPC, setting aside the impugned order and directing the parties to appear before the Trial Court for further directions.
Fact of the Case:
The petitioners sought to be impleaded as legal heirs of deceased Dr. Shanta Sharma and to bring the demise of Dr. Shanta Sharma on record. The Trial Court dismissed the application on the ground that the details of the property were not clarified in the apostille certificate.
Finding of the Court:
The court found that the application under Order XXII Rule 3 CPC should be allowed, and the impugned order was set aside. The court directed the parties to appear before the Trial Court for further directions.
Issues: The issues revolved around the validity of the probate attached to the apostille certificate and the applicability of the Indian Succession Act, Section 213 and 228 to foreign probate documents.
Ratio Decidendi: The court held that the requirements of obtaining probate under the Indian Succession Act and the applicability of the Apostille Convention to foreign probate documents needed to be tested in trial, in accordance with the law.
Final Decision: The petition was allowed, the impugned order was set aside, and the application under Order XXII Rule 3 CPC was allowed. The parties were directed to appear before the Trial Court for further directions.
JUDGMENT :
Yogesh Khanna, J.
This petition is against the impugned order dated 24.12.2018 whereby an application of the petitioners under Order XXII Rule 3 read with Section 151 CPC was dismissed.
2. The learned senior counsel for the petitioner alleged late Major (Retd) Bhim Raj Sharma was predecessor in interest and ancestor of the parties. Petitioner No.1 is widow daughter of late Major (Retd) Bhim Raj Sharma; petitioner No.2 is son of late Major (Retd) Bhim Raj Sharma; respondents No.1 to 3 are legal heirs of deceased Pradeep Sharma; and respondents No.4 & 5 of legal heirs of deceased Ramesh Sharma who were sons of late Major (Retd) Bhim Raj Sharma.
3. On 29.10.1962, late Major (Retd) Bhim Raj Sharma, as Karta of the family and out of the funds and income of ancestral property purchased a plot of land bearing no. R-263, Greater Kailash, Part-I, New Delhi - 110048 and constructed a house thereon (hereafter referred as "said property"). On 07.07.1983, partition suit was filed by late Major (Retd) Bhim Raj Sharma and his daughter Dr.Shanta Sharma in this Court being CS(OS) No.1100/1983 wherein the share of late Major (Retd) Bhim Raj Sharma, his wife and three sons were declared to be 1/5th each in the said suit vide preliminary decree of partition. On 15.08.1984, local commissioner was appointed to divide the said property by metes and bounds and it was assured by the parties through their counsels the sisters namely Chander Kanta Mishra and Dr.Shanta Sharma be also given their shares, hence share of each person was made to be 1/7th and the property could not be divided by metes and bounds. In the year 1986, Ramesh Sharma died leaving behind the respondents No.4 & 5 his wife and son respectively. On 05.12.1989, Smt.Nirma Devi died and her share devolved upon remaining parties thus, making their share 1/6th each. On 16.11.1997, Sh.Pradeep Sharma died leaving behind respondents No.1 to 3, as his wife, son and daughter respectively. No steps could be taken for partition of the said property due to unfortunate demise of Smt.Nirma Devi, Ramesh Sharma and Pradeep Sharma and said property remain undivided by metes and bounds.
4. On 03.08.1999 late Major (Retd) Bhim Raj Sharma and petitioners herein ultimately filed an application for modification of the preliminary decree of partition of the said property. Late Major (Retd) Bhim Raj Sharma also executed a Will dated 31.08.1997 whereby he devolved his share to deceased Dr.Shanta Sharma to the exclusion of all other legal heirs. Hence, the share of Dr.Shanta Sharma becomes 1/6th of herself and also 1/6th which comes from her father he held in the said property, thus equivalent to 1/3rd and petitioners No.1 & 2 have 1/6th share each; respondents No.1 to 3 have 1/6th share; and respondents No.4-5 have 1/6th share in the said property.
5. On 18.11.2002 fresh suit for declaration and partition filed by Dr.Shanta Sharma and the petitioners herein being CS No.1929/2002. The written statements have been filed by respondents and during the pendency of abovesaid suit, Dr.Shanta Sharma died on 25.10.2014 and the copy of the death certificate is annexed as P-6. She was also a citizen of USA and residing there. She had no class I heirs and hence the petitioners being the real sister and brothers were very close to her and she executed a Will dated 21.05.2010 during her lifetime for which probate was granted and apostille certificate was also obtained qua her share in the property.
6. On the basis of the probate, the petitioners have become entitled to her share in the said property and each of them moved an application under Order XXII Rule 4 CPC to bring the demise of deceased Dr.Shanta Sharma on record and also to be impleaded as legal heirs of Dr.Shanta Sharma. Though they were already party to the suit, but the said application was contested and it was dismissed by the learned Trial Court by the impugned order dated 24.12.2018 with the following observations:-
"I have heard the arguments and have per
