Raj Kumar & Anr v. State & Ors

MOOL CHAND GARG,J DECEMBER 13, 2010

'sg/dc'

* IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO.No.448/2010 % Decided On: 13.12.2010 RAJ KUMAR & ANR. …. Appellants Through: Mr.Rajeshwar Tyagi, Adv. Versus State & ORS. …. Respondents Through: None. CORAM: HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether reporters of Local papers may be allowed to see the judgment? 2. To be referred to the reporter or not? 3. Whether the judgment should be reported in the Digest? : MOOL CHAND GARG,J.(ORAL) CM No.22013/2010 Allowed subject to just exceptions. Application stands disposed of. FAO No.448/2010 1. This appeal arises out of an order passed by the Addl. District Judge dated 05.08.2010whereby the Addl. District judge has allowed an application filed by the respondents under Section 11 of CPC and dismissed the Probate petition No 319/06 filed by the appellant under Section 276 of Indian Succession Act seeking probate of the will dated 02.04.1998 holding that the issue had already been decided by the said Court in petition No 318/06 in which the parties were same and therefore the Court cannot try the same issue again being hit by Section 11 of CPC. 2. Briefly stated the facts of the case are that two Probate Petitions were filed in relation to two wills alleged to have been executed by late Smt. Neerta Devi on two different dates, Probate Petition No 318/06 was filed by the respondents seeking probate of the will dated 22.08.1994 and Probate Petition 319/06 was filed by appellant seeking probate of the Will dated 02.04.1998. In the Probate Petition 319/06 evidence of appellant was closed, he took no further steps to recall the order for leading evidence. Meanwhile the other connected matter i.e petition No 318/06 filed by the respondents was decided in favour of the respondents. 3. The appellants who were arrayed as respondents in the aforesaid probate petition raised objections to the grant of probate to the will dated 22.08.1994 by alleging that the said will was a forged and fabricated one and the testatrix has executed another will dated 2.4.1998 propounded by them. However, to prove that Will no evidence was led by them. In the said probate petition, the Additional District Judge after going through the statement of the witnesses particularly the attesting witness i.e PW 3 came to the conclusion that the will dated 22.08.1994 was validly executed by the testatrix and as there was no evidence led by the appellant. It was held that no other will was executed by the same testatrix. The issue was thus decided in favour of respondent. The appellant aggrieved by that order of the Ld. ADJ challenged it before this Court in FAO 276/2010. 4. Before this Court also appellant reiterated the same objections taken before the Ld. ADJ but had brought nothing on record to show as to what happened to the second probate petition filed by the appellants in relation to the second will which had been propounded by the appellants as the last and final will of the testatrix. This court made following observations in an order dated 20.10.2010:- "Learned counsel for the appellant states that the probate petition filed by them with respect to the will dated 02.04.1998 bearing No.233/1999 has been dismissed by the ADJ vide the impugned order which is the subject matter of the present appeal. As such now no such petition is pending. In fact, on account of dismissal of the suit and the appeal having not been filed, the Court can presume that the appellants are not interested in revival of their probate petition which is the only defence taken by them in this appeal. It may, however, be observed that they intend to file an appeal against the order dismissing their probate petition." This court also observed that:- 15. In any event the appellants having not brought on record the second will which they state was the last and final will of deceased Nerta Devi and failed to prove the said Will they cannot now question the probate of registered will left by late Smt. Nerta Devi. It many a times happens for various re