JUDGMENT :

Prathiba M. Singh, J.

1. The present petition challenges the impugned order dated 13th August, 2018, by which the Petitioner’s application under Section 195 of the Indian Succession Act, 1925, for appointment of a Curator, was rejected by the ld. Trial Court.

2. The background of the present proceedings is that one Ms. Piroja Edalji and Mr. Hoshang Edalji were 50% owners of property bearing No.213 (lower ground floor), Kailash Hills, New Delhi - 110065 (hereinafter, “suit property”). Ms. Piroja Edalji passed away on 19th December, 2012, leaving behind two daughters and two sons. The Petitioner is one of the sons of Ms. Piroja Edalji and the brother of Mr. Hoshang Edalji. Mr. Hoshang Edalji passed away on 29th March, 2018, in Delhi. He used to reside in the suit property.

3. After the death of Mr. Hoshang Edalji, disputes arose between the Petitioner and his family and Respondent No.2 – Mr. Babulal, who was working as the domestic help of Mr. Hoshang Edalji. It is not disputed that Respondent No.2 was working as the domestic help of Mr. Hoshang Edalji since 1994. Respondent No.1 – Mr. Arvind Rai is the son of Respondent No. 2 - Mr. Babu Lal and Respondent No.3 – Ms. Phoolwati is the wife of Mr. Babu Lal.

4. The two sisters of the Petitioner and Mr. Hoshang Edalji have relinquished their shares in the suit property in favour of the Petitioner. Mr. Hoshang Edalji did not have any children. Thus, it is the claim of the Petitioner that he is the absolute owner of the suit property, being the real brother of Mr. Hoshang Edalji.

5. The case of the Petitioner is that upon the death of his brother, when he went back to the suit property, the Respondents did not permit him to enter the suit property. He was, therefore, forced to file a complaint with the police and an FIR was registered on 9th May, 2018. Post the said FIR being registered, the Respondents set up an alleged Will dated 15th September, 2017, which they claim has been executed by Mr. Hoshang Edalji, in favour of Respondent No.1. They have filed a probate petition seeking probate of the said Will and the said petition is stated to be pending. During the pendency of the probate petition, the Petitioner moved an application under Section 192 of the Indian Succession Act, 1925, which was dismissed by the ld. Trial Court, and is challenged in the present petition.

6. The submission of Mr. Mehta, ld. counsel appearing for the Petitioner, is that the ld. Trial Court has committed a grave error in holding that since the probate is pending, there is no dispute between two persons claiming under the Indian Succession Act, 1925. He submits that Respondent No.2 is only a domestic help of the deceased and in any case, the Petitioner owns 37.5% share in the suit property and could therefore not have been excluded. He submits that the ld. Trial Court has erred in holding that the judgment in Uma Devi Nambiar v. TC Sidhan, (2004) 2 SCC 321 does not apply to the facts and circumstances of the present case. It is his further submission that a perusal of the documents of the National Heart Institute shows that the Petitioner was present at the time his brother was admitted into the hospital and even at the time of his death. He, in fact, made the payments for the deceased’s treatment and also conducted the last rites in the Parsi Crematorium. He further submits that the Respondents have illegally grabbed the suit property.

7. On the other hand, ld. counsel for the Respondents submits that the Petitioner, in fact, tried to illegally evict the Respondents, even though he has given a statement in the probate petition that he will not try to dispossess the Respondents, except in accordance with law. He further submits that the genuineness of a Will cannot be gone into in a petition under Section 192 of the Indian Succession Act, 1925, which is settled in the judgment of Uma Devi Nambiar (s