The main legal point established in the judgment is that the applicability of the bar under Section 71 of the Indian Succession Act, 1925 cannot be decided as an issue of law only, and evidence would have to be led to determine its applicability.

JUDGMENT

Amit Bansal, J. (Oral). - IA. 5864/2022 (O-XIV R-2(2) of CPC)

1. The present application has been filed on behalf of the respondent no. 2 under Order XIV Rules 2(2) and (5) of the Code of Civil Procedure, 1908 (CPC), seeking the following prayers:

"a. frame the following additional issue:

Whether prayer 'a' of the Petition seeking Letters of Administration of the Will dated 22.02.2020 with alterations cannot be granted, being hit by Section 71 of the Succession Act?

b. consider and decide the said issue as preliminary issue;"

2. The present testamentary case has been filed by the petitioner under Section 278 of the Indian Succession Act, 1925 (the Act), seeking Letters of Administration in respect of the last and final Will dated 22nd February, 2022 of late Mrs. Ramesh Kumari Bhardwaj (Testatrix) who was the mother of the petitioner and the respondent no.2. The Testatrix passed away on 7th/8th March, 2020. The respondent no.2, in another testamentary case bearing Test Cas. No. 17/2020 titled as Nitesh Bhardwaj v. Govt of NCT and Anr. has propounded a different Will dated 14th July, 2014 of the Testatrix, which is pending adjudication before this Court.

3. In the present testamentary case, the following prayers have been made:

"(a) Pass an order granting Letters of Administration in favour of the petitioner, in respect of alleged Will dated 22.02.2020 by late Mrs. Ramesh Kumari Bhardwaj and for administration of her entire estate;

(b) Without prejudice to prayer para (a) and strictly in the alternative, pass an order granting Letter of Administration in favour of the petitioner, in respect of annexed Will dated 22.02.2022 by late Mrs. Ramesh Kumari Bhardwaj, in its original state, omitting the alterations and for administration of her entire estate;"

4. Vide order dated 2nd August, 2021, issues were framed in the testamentary case, which are set out hereinbelow:

"1. Whether late Smt. Ramesh Kumari Bhardwaj legally and validly executed her last Will and Testament dated 20.02.2022?

2. If the answer to the above issue is affirmative, what relief would the petitioner be entitled to? "

5. Evidence by way of affidavit on behalf of the attesting witnesses has been filed, however, the same are yet to be tendered.

6. Senior counsel appearing on behalf of the respondent no. 2 submits that the obliterations/alterations made in the aforesaid Will dated 22ndFebruary, 2022 are neither signed by the testatrix, nor counter signed or marked by any of the attesting witnesses to the Will and therefore, prayer 'a' in the testamentary case as set out above, cannot be granted in terms of Section 71 of the Act.

7. The specific objection with regard to bar under Section 71 of the Act has been taken by the respondent no. 2 in his reply/objections. It has been pointed out to the counsel for the respondent no.2 that the said reply/objections is not on record. During the course of the hearing, a copy of the reply/objections has been handed over by the counsel for the respondent no.2. The counsel to take steps to have the same placed on record.

8. Reliance has been placed by the senior counsel for the respondent no.2 on the averments made in the testamentary case as well as the rejoinder filed by the petitioner to the reply/objections filed on behalf of the respondent no.2 to contend that it is the petitioner's own case that (i) the obliterations/alterations in the Will were not in the hand writing of the testatrix; (ii) obliterations/alterations were not signed by the testatrix; and (iii) none of the attesting witnesses had signed the said obliterations/alterations.

9. Based on the above, it is submitted that since the obliterations/alterations in the Will are not in accordance with Section 63 of the Act, the obliterations/alterations would have no effect whatsoever and therefore, no probate could be granted of the said altered Will in terms of Section 71 read with Section 63 of the Act. Therefore, it is prayed that the additional issue, as noted above, be fra