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2025 Supreme(Online)(DEL) 865
HIGH COURT OF DELHI
Manoj Jain, J
GYAN KAUR & ANR. – Appellant
Versus
MUKESH KUMAR – Respondent
CM(M)-290/2025
The court emphasized the importance of procedural fairness in probate proceedings, allowing objections to be considered on merits despite delays.
Headnote:(A) Indian Succession Act, 1925 - Section 276 - Probate petition filed by the son of deceased testator for probate of Will executed on 10.03.2021 - Petitioners, being the widow and daughter-in-law of another son of the deceased, filed objections but failed to do so within the stipulated time - Probate Court refused to take objections on record due to delay and absence of a condonation application - Court directed that objections be taken on record, emphasizing the need for decisions on merits rather than technicalities. (Paras 3, 8, 17)
(B) Procedural Fairness - The right to cross-examine witnesses is fundamental, and even if the defense is struck off, limited rights to cross-examine on foundational facts remain. (Paras 16, 17)
Facts of the case:
The probate petition was filed by Mr. Mukesh Kumar after the death of his father, Mr. Ved Prakash. The petitioners, who are the widow and daughter of another son of the deceased, filed objections that were not timely. (Paras 3, 4, 7)
Findings of Court:
The Court directed that the objection petition be taken on record and emphasized that the decision should be made on merits, not technicalities, while imposing costs on the petitioners. (Paras 17, 18)
Issues: The main issues included the timeliness of the objections filed by the petitioners and the right to cross-examine witnesses in the probate proceedings. (Paras 8, 16)
Ratio Decidendi: The Court held that procedural fairness must be maintained, allowing for objections to be considered on their merits and ensuring the right to cross-examine witnesses is upheld. (Paras 16, 17)
Result: Petition disposed of with directions.
JUDGMENT :
1. One Mr. Ved Prakash had, allegedly, executed a Will on 10.03.2021.
2. He unfortunately died on 07.01.2023.
3. Mr. Mukesh Kumar, being son of such deceased testator filed a petition under Section 276 of Indian Succession Act, 1925 , seeking probate.
4. The petitioners herein are also cited as respondents in said probate petition. Petitioner No.1/Mr. Gyan Kaur is widow of Mr. Umesh Kumar (another son of Ved Prakash) and petitioner No.2 herein is her daughter.
5. The abovesaid petitioners were duly served and even vakalatnama was filed on their behalf on 16.05.2023 and they were granted time to file reply.
6. On the next date of hearing, they prayed for supplying of legible copy of one page and, while directing the respondent to supply such legible copy, the petitioners herein were granted further time to file objection within four weeks.
7. Admittedly the objections were filed by the petitioners but these was not filed within abovesaid period of four weeks.
8. Learned Probate Court, while considering the overall facts of the case, refuse to take such objections on record. It also observed that along with such objection petition, the objectors had not even filed any application seeking condonation of delay. Resultantly, the application moved by the opposite side under Order VIII Rule 10 CPC was also disposed of and the matter was fixed for evidence of the respondent herein.
9. Such order dated 03.02.2024 is under challenge.
10. However, it may also be pointed out that the petitioners had sought recalling of the abovesaid order dated 03.02.2024 and moved an application but such application was also dismissed by the learned Probate Court on 04.05.2024.
11. Mr. Bishwajit Dubey, learned counsel for respondent is present with respondent and submits that the intent and objective of the petitioners herein is to simply delay the proceeding on one pretext or the other. He submits that no justifiable reason has been divulged in the present petition either and, therefore, the present petition also lacks merit and substance and same may be accordingly dismissed.
12. Learned counsel for petitioner, however, submits that immediately after the order dated 03.02.2024, in order to ensure there is no further delay of any kind, the counsel for the objectors had moved an application same day seeking condonation of delay in filing the objection.
13. It is submitted that such application had been filed after taking requisite oral instruction from the concerned objectors and in order to ensure that there is no further adverse order, the abovesaid application was filed, without any affidavit from the side of the objectors. He, thus, submits that there is no intention to delay the proceedings.
14. This Court is mindful and cognizant of the fact that the petition in question seeks probate and, therefore, it was asked from Mr. Dubey whether on certain conditions, the present petition can be allowed so that the decision of such probate petition is on merits, instead of on technicalities.
15. Mr. Dubey, learned counsel for respondent after taking requisite instructions from the respondent who is present in Court, leaves it to the discretion of the Court to pass appropriate order.
16. There is one more important aspect of the case which this Court cannot resist commenting upon. When the abovesaid probate petition was taken up by the learned Probate Court on 12.11.2024, the two witnesses were present from the side of Mr. Mukesh Kumar and those were examined and discharged. The request for cross-examination was declined on the ground that the defense of respondents therein had already been struck off. This Court would not mince any word in observing that even if the defense had been struck off, any such adversary still has right, albeit limited one, to cross-examine on the other aspects including the foundational facts submitted in any such petition and to that extent, the learned Trial Court should not have declined opportunity for cross-examination, merely on
