Onkar Nath Bhaskar & Anr v. S.S.Bakshi

VEENA BIRBAL, J. June 3rd, 2010 ssb/kks

* HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: June 3rd , 2010 + FAO-327-328/2005 Onkar Nath Bhaskar & anr ..... Appellants Through: Mr.S.S.Mishra & Mr.M.Padhi, Advs. -versus- S.S.Bakshi & anr ..... Respondents Through: Ms.Manju Oberoi, Adv. CORAM:- HON'BLE MS. JUSTICE VEENA BIRBAL 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes Veena Birbal, J. 1. By way of present appeal, appellants have challenged the impugned order dated 21st September, 2005 passed by the District Judge, Delhi wherein their application under section 263 of the Indian Succession Act (hereinafter referred to as the Act) seeking revocation of Letter of Administration dated 17th November, 2002 and suspension of judgment dated 15th September, 2001 in favour of respondent no.1 has been rejected. 2. Briefly stated the facts relating to the present appeal are as under:- Respondent no.1 herein i.e. petitioner before the learned District Judge had filed a petition under Section 264 of the Act for grant of probate with regard to "Will" dated 11th October, 1974 executed by one Hans Raj Bhaskar s/o Mela Ram who had died on 27th July, 1988. By virtue of the said "Will", the above named testator had bequeathed property no.E-18, Greater Kailash Enclave Part I in favour of respondent no.1. Notice of the said petition was issued to the State through Collector, near relatives and copy of the same was also got affixed on the notice board of the court and citation was also published in the newspaper National Herald on 25th July, 2001 and Tribune dated 18th July, 2001 but none came forward to oppose the said petition. Thereafter evidence of the respondent no. 1 i.e. petitioner before the learned District Judge and supporting witnesses produced by him in support of his case was recorded. After going through the evidence and other material on record, learned District Judge vide order dated 15th September, 2001 held that "Will" exhibit PW 2/1 was duly executed by the testator i.e. Hans Raj Bhaskar in sound disposing mind without any coercion or undue influence and it was his last "Will". Accordingly, respondent no. 1 was granted probate in respect of "Will" Exhibit PW 2/1 with regard to property mentioned above subject to his furnishing valuation report, court fee and administration bonds. In the above probate petition, appellants herein are respondents 2 & 3. 3. On 30th September, 2002, appellants herein moved an application under section 263 of the Act for revocation of probate which was granted in terms of judgment dated 15th September, 2001 wherein it is alleged that appellants came to know about the grant of probate when respondent no.1 had filed written statement in Suit No.76/2002 titled as Anuj Goel Vs S.S.Bakshi & anr seeking declaration and consequential release of possession of property, which at the relevant time was pending in the court of Mr.D.K.Malhotra, learned Addl. District Judge, Delhi. It is alleged that respondent no.1 had obtained the probate by concealing material facts/document. There was no real intention of deceased to execute will (Ex.PW2/1). Appellants were not served with probate petition, as such probate granted in favour of respondents be revoked. 4. Respondent had opposed the revocation petition by contending that probate was rightly granted in favour of respondent. He contended that no ground for revocation was made out. 5. On the pleadings of the parties, the learned District Judge had framed the following issues:- "1. Whether the application for revocation is not maintainable? OPR 2. Whether there is any just cause for revoking grant of letters of admission? 3. Whether the petitioner is guilty of suppressing the true facts by not disclosing the alleged agreement to sell and other documents with the alleged "WILL"? 4. Whether the "Will" in question is not a valid "Will" and is a forged & fabricated d