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2020 Supreme(Del) 325
IN THE HIGH COURT OF DELHI AT NEW DELHI
NAVIN CHAWLA, J.
Amiteshwar Singh & Anr. - Petitioners
Versus
Kamal Nain - Respondent
TR.P.(C.) 161 of 2019 & CM No. 49960 of 2019
Decided On : 12-03-2020
For the Petitioner: Mr.Akshay Makhija, Mr.Saurabh Seth, Ms.Mahima Bahl Malhotra & Ms.Seerat Deep Singh, Advs.
For the Respondent: Ms.Deepika V. Marwaha & Ms.Raunika Johar, Advs.
The court emphasized that the commonality of issues between probate proceedings and a civil suit is essential for the transfer and joint trial of the cases.
Headnote:
Probate Petition - Transfer of Probate Petition - Code of Civil Procedure, 1908 - Order VII Rule 11 CPC - Will - HUF property - Joint trial of probate proceedings and Civil Suit
Fact of the Case:
The petitioner filed a petition seeking the transfer of a probate petition and consolidation with a partition suit. The probate petition sought grant of probate for a Will, while the partition suit sought a decree of partition for a property. The issues in the suit included cause of action, limitation, and entitlement to partition and injunction. The probate petition raised issues regarding the validity of the Will and the bequeathal of HUF property.
Finding of the Court:
The court found that the suit did not challenge the execution of the Will, but rather the status of the property and the rights of the testator to bequeath it. The court dismissed the petition for transfer and consolidation, as the issues in the probate petition and the suit were not common.
Issues: The issues included the challenge to the execution of the Will, the status of the property, and the rights of the testator to bequeath it.
Ratio Decidendi: The court held that the probate petition and the suit did not share common issues, as the suit did not challenge the execution of the Will. Therefore, the petition for transfer and consolidation was dismissed.
Final Decision: The petition for transfer and consolidation was dismissed.
JUDGMENT :
NAVIN CHAWLA, J.
1. This petition has been filed inter alia praying for the following relief:-
“a. Pass an order directing the transfer of the Probate Petition No. 39/2016 [earlier 02 / 2014] titled as ''Mrs. Kamal Nain v. State & Ors." currently pending before Sh. Sandeep Garg, Additional District Judge, Patiala House Court, New Delhi to this Hon'ble Court;
b. Pass further orders consolidating Probate Petition No. 39/2016 [earlier 02 / 2014] titled as "Mrs. Kamal Nain v. State & Ors." currently pending before Sh. Sandeep Garg, Additional District Judge, Patiala House Court, New Delhi with CS (OS) No. 1439/2015 titled as "Amiteshwar Singh v. Kamal Nain & Anr.”
2. The probate petition referred hereinabove has been filed by the respondent herein seeking grant of probate with respect to the alleged Will dated 15.05.2007 of Late Shri. Surinder Singh Chowdhary. The suit has been filed by the petitioner against the respondent herein as also the petitioner no. 2 herein praying inter alia for a decree of partition with respect to the property bearing No. 64B, Sainik Farms, New Delhi. The said property is only one of the properties/assets of the deceased that are mentioned in the Will. The probate petition was filed in the year 2014 and the partition suit has been pending since May, 2015. The present petition has been filed only on or around November, 2017. It is stated that the probate petition is at the stage of recording of the evidence. It is further stated that in the suit, the respondent herein has filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 on which arguments are being heard. The learned counsel for the petitioners, however, submits that such application was filed only after framing of the issues in the Suit.
3. As far as the issues are concerned in the suit, following issues have been framed by the order dated 05.09.2016:-
“5. After hearing learned counsel for the parties, the following issues are framed:
(i) Whether the suit fails to disclose any cause of action and is, therefore, not maintainable in law? OPD-1
(ii) Whether the suit is barred by limitation? OPD-1
(iii) Whether suit is barred under Order VII Rule 11 CPC? OPD-1
(iv) Whether the Plaintiff is entitled to claim partition and ½ share of the suit property? OPP
(v) Whether the Plaintiff is entitled to the relief of permanent injunction in relation to the suit property? OPP
(vi) Relief.”
4. In the probate petition, the following issues had been framed by the order dated 31.10.2019:-
“Pleadings are complete. From the pleadings of the parties following issues are framed:
1. Whether the petitioner is entitled to letter of administration / probate in respect of Will dated 15.05.2007 executed by Late (Sh.) Surender Singh Choudhary, as prayed for? OPP
2. Whether there is no legal impediment to grant of probate in favour of petitioner? OPP
3. Whether the petition is not maintainable? OPR 2 & 3
4. Whether the property in question could not have been bequeathed by Late (Sh.) Surender Singh Chaudhary, being HUF property of Sardar Surender Singh Choudhary, HUF? OPR 2 &3
5. Whether the Will in question is not tenable as per law? OPR 2 &3
6. Relief”
5. By the subsequent order dated 07.03.2020, Issue no. 4 framed in the probate proceedings has been ordered to be deleted.
6. As noted hereinabove, the probate petition has been filed seeking probate of the alleged last Will of Shri. Surinder Singh Chowdhary. The Will, apart from the property which is the subject matter of the suit, bequeaths other properties as well. The suit is confined only to the property which is mentioned hereinabove.
7. In the suit, the petitioner no.1 avers the following in the paragraph 9 of the plaint:-
“9. That Late S. Surinder Singh Chowdhary had during his lifetime executed a Will dated 15.05.2007 bequeathing the entire Suit Property to the Defendants in equal proportion. The said Will appears to have been made under a misconception as the Suit Property was always an HUF property and
