The central legal point established in the judgment is that the power to revoke or annul a grant of probate lies with the probate court as per Section 263 of the Indian Succession Act.

JUDGMENT

Mukta Gupta, J. - The present suit has been filed by the brothers of Late Shanti Swaroop Gupta who was the owner of the suit property bearing No.53, Vaishali, Pitampura, New Delhi. Wife and the daughter of Late Shanti Swarup Gupta pre-deceased him. According to the defendants, the deceased left a Will in the name of his son-in-law who has also since passed away. Based on the Will whereby the properties of Late Shanti Swarup Gupta were bequeathed on his son-in-law who was the brother of the defendant Nos. 1 to 3, defendant Nos. 1 to 3 claimed ownership in the suit property and on the said basis, have conveyed the rights in the suit property to the defendant No. 4, who has, in turn, conveyed it to defendant No. 5 and has further conveyed to the third parties.

2. The plaintiffs are the four brothers of Late Shanti Swarup Gupta and claim rights in the suit property by virtue of being Class-II legal heirs. The present suit has been filed by the four brothers through Ankur Gupta, son of plaintiff No. 4 as the power of attorney holder who claimed to have filed power of attorney on behalf of the plaintiff Nos. 1 to 4. However, the power of attorneys were not filed with the plaint but filed subsequently.

3. A probate petition was filed by the son-in-law of Late Shanti Swarup Gupta i.e. Anand Parkash Verma which was granted in his favour vide order dated 7th August, 2014. The plaintiffs by the present suit seek a declaration of the impugned registered Will dated 7th September, 2010 as null and void, void-ab-initio and illegal, decree of possession of the suit property, decree of permanent injunction against the defendants from creating any third party rights and direction to the office of Sub-Registrar not to register any sale till the disposal of the suit.

4. When the suit came up before this Court on 2 nd July, 2020, this Court issued summons in the suit and notice in the application to the defendants, returnable for 26th August, 2020 when learned counsel for the defendants entered appearance and raised number of objections to the maintainability of the suit. In the meantime, the power of attorney holder of the plaintiffs Ankur Gupta wrote to the Sub-Registrar hindering him from registering any sale deed despite the fact that this Court had not passed any order of interim injunction or stay in his favour and thus, an application was filed by the defendant No. 8 seeking direction to the Sub-Registrar being IA 7818/2020 under Section 151 CPC. Considering the contents of IA 7818/2020, this Court had issued show cause notice to Ankur Gupta as to why the proceedings under Contempt of Courts Act be not initiated against him. In response thereto, Ankur Gupta has filed an affidavit tendering his unconditional apology.

5. The prayers made in the present suit are as under:

"(a) To declare the registered impugned "Will" dated 07.09.2010 is null and void ab-intio and illegal and is of no effect; and

(b) Pass a decree of Possession of the suit property being house bearing No. 53, Vaishali, Pitampura, Delhi may kindly be passed in favor of the plaintiffs and against the defendants with costs thereby directing the defendants or anyone acting on their behalf of handover and deliver the vacant and peaceful possession of the suit property to plaintiffs; and

(c) Pass a decree of permanent injunction whereby the defendants, their henchmen and agents and their assignees be restrained permanently from creating third party rights from the suit property, from raising and doing construction activities at Suit Property, being house bearing No. 53, Vaishali, Pitampura, Delhi; and

(d) Pass a decree of damages/ menses per order 20 rule 12 CPC against the Defendants thereby directing them to pay the same to the plaintiffs from the date of filing of the suit till the handing over of the possession along with interest@ 12% per annum.

(e) Further direct the registrar of office of Sub- Registrar, Sub - District VI A, Delhi to not to register any types sale deed in fav