Sardar Indermohan Singh Siali v. State and Ors

S. RAVINDRA BHAT,J

SEPTEMBER 10, 2009 mm

* IN THE HIGH COURT OF DELHI AT NEW DELHI + TEST.CAS. 15/2005 SARDAR INDERMOHAN SINGH SIALI ..... Petitioner Through Mr. Jasmeet Singh and Mr. Saurabh Tiwari, Advocates versus STATE AND ORS. ..... Respondents Through : None CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT 1. Whether reporters of local papers may be Yes allowed to see the judgment.? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? Mr. Justice S. Ravindra Bhat (Open Court) * 1. The present proceedings is for grant of probate in respect of the Will of late Shri Harnam Singh Syali ("the testator") dated 18.8.1978. The first petitioner is the grandson and the second petitioner, the daughter-in-law of the testator. 2. One of the heirs of the late testator had filed a suit being CS (OS) No.1932/1996. One of the parties (the second respondent in this case) filed a suit being CS (OS) No.1253/2006 claiming partition of the properties, which were subject matter of the Will. The proceedings continued for a considerable time. The petitioners contended that as a result, the present claim for probate was not made. The original of the Will was produced, in the course of the said proceedings; a certified copy has been placed on the record in this case. 3. The testator apparently had 5 sons and one daughter i.e. Gurcharan, Surinder Singh Siali, Jang Bahadur Singh, Sardar Manmohan Singh Siali and Kuldeep. The 3 of them i.e., Jang Bahadur Singh, Surinder Singh Siali and S.Gurcharan Singh have died during the pendency of the proceedings. It is submitted that the Will had made the following bequests : a) life interest in the H-478, New Rajinder Nagar, New Delhi property in favour of his wife Smt. Kishan Kaur with the limited right to enjoy it till her lifetime. b) After the death of his wife Smt. Kishan Kaur, he bequeathed first floor of the property No.H-478, New Rajinder Nagar, New Delhi and Barsati floor absolutely and exclusively to his son late Sardar Gurcharan Singh who was given right to hold without interference from others and ground floor of the said property was bequeathed to the petitioner. This Will was duly executed in presence of witnesses whose signatures are affixed at the bottom of the Will. c) On his grandson Shri Inder Mohan Singh s/o Shri S.Man Mohan Singh who will have the right to hold the same so far as the ground floor properly, absolutely. 4. The suit No.1923/1986, ended with the order of the court on 21.2.2003; the order in that case has been filed. Apparently all the sons of the testator were present in court. A certified copy of the application filed under Order 23 Rule 1 along with the affidavits and a compromise affidavit was produced in support. That was duly taken note of even while recording the withdrawal of the suit. 5. In terms of the compromise some of the respondents relinquished their share of the suit property and settled their disputes with the petitioners. This is evidenced by Exhibit Ex.PW1/1, PW1/2, PW1/3, PW1/4, PW1/5, PW1/6, PW1/7, PW1/8 and PW1/9; they were executed on various dates in February, 2003 i.e. 17.2.2003 19.2.2003 and 21.2.2003. 6. The order of the court disposing of the suit is in the following terms :- "IA 2212/2003 & Suit No.1923/1986 Counsel for defendant No.1 has handed over pay orders details of which have been mentioned in the application. As agreed between the parties the respective pay orders have been handed over to the counsel for the plaintiff and to the counsel for the defendant No.2 for encashment. As agreed between parties their disputes stand satisfied. Defendant Nos.5 and 6 have already been proceeded against ex parte. The application is allowed and as prayed for in this application the suit is dismissed as withdrawn. In view of the withdrawal of the suit the future dates stand cancelled." 7. The Will Ex. PW1/1 was apparently attested by Smt.Raj Kaushalya and one Shri Amar Nath. The petitioners have produced the death certificate of Shri Harnam Singh Sia