Delhi District Court
Sunil Kumar Sharma vs State on 6 April, 2026
IN THE COURT OF RAVINDER SINGH-1, DISTRICT JUDGE-03,
EAST DISTRICT KARKARDOOMA COURTS : DELHI
RCA DJ No.13/2025
Sunil Kumar Sharma
S/o Late Sh. Bhola Ram Sharma
R/o D-22/48, Flat No.102, Gali no.3,
East Vinod Nagar, Delhi-110091. ...Appellant
Versus
1. State
SDM Court, LM Bandh
Geeta Colony, Delhi-110031
2. Sanjay Sharma
S/o Late Sh. Bhola Ram Sharma
54A, DDA Flat Pandav Nagar
Delhi-110008.
3. Shashi Pathak
D/o Late Sh. Bhola Ram Sharma
F-72B, East Vinod Nagar
Delhi-110091.
4. Snehlata
W/o Late Sh. Sushil Kumar Sharma
5. Inderjeet
S/o Late Sh. Sushil Kumar Sharma
6. Neha
D/o Late Sh. Sushil Kumar Sharma
RCA DJ/13/2025 Sunil Kumar Sharma Vs. State and Anr. 1 of 10
7. Bharti
D/o Late Sh. Sushil Kumar Sharma
Respondent No. 4 to 7 are resident of:
RZC-171, Nihal Vihar,
Nangloi,
Delhi-110041. ...Respondent
Date of institution : 22.02.2025
Date on which is reserved for judgment : 02.04.2026
Date of decision : 06.04.2026
JUDGMENT:
1. This judgment shall decide an appeal filed for setting aside the order dated 21.12.2024 passed by Ld. Trial Court in a petition bearing Misc. No. 40/2019 titled as Sunil Kumar Sharma Vs. State & Ors. (hereinafter referred to as the impugned order) whereby the appellant/petitioner's application under Section 114 for review of order dated 01.02.2019, was dismissed.
2. The parties shall be referred to in this judgment as per their ranks/position before the Ld. Trial Court.
3. The relevant facts for deciding the present appeal are that the petitioner filed a petition for granting a Succession Certificate in RCA DJ/13/2025 Sunil Kumar Sharma Vs. State and Anr. 2 of 10 terms of Indian Succession Act (hereinafter referred to as Act) in respect of debt and securities of his deceased mother Smt. Gayatri Devi who has expired on 16.03.2015. Petitioner claimed that besides him, respondent no.2 to 7 are legal heir of his deceased mother who executed a Will on 10.01.2001 in his favour in respect of her movable property i.e. for her pension account in SBI Bank and other properties. He claimed that the said Will was duly registered in Sub Registrar's Office.
4. Respondent no.2 filed his reply-cum-objection to the petition wherein he stated that petition is not maintainable as petitioner has concealed the true and material facts from the Court. He being brother of petitioner is the co-sharer in the property of their mother- who was an illiterate lady and she has not executed any Will and the Will dated 10.01.2001 placed on record by the petitioner is false, forged and manipulated document. Accordingly, he prayed for rejection of the petition.
5. Petitioner filed the reply to the objections of respondent no.2 whereby he denied the contents raised in objections and reiterated RCA DJ/13/2025 Sunil Kumar Sharma Vs. State and Anr. 3 of 10 the averment of his petition.
6. It is pertinent to note that Ld. Trial Court vide its order dated 01.02.2019 while allowing the objections of respondent no.2 and dismissing the petition observed as under:
4. The petitioner produced the original Will and the respondent No. 2 and 3 produced certified copy of the said Will 4.1. It is manifest that there are two attesting witnesses to the Will produced by the petitioner whereas there is only one attesting witness to the certified copy of the Will.
4.2. It is mandated by Section 63 (c) the Indian Succession Act, 1925 that an unprivileged Will shall be attested by two or more witnesses. Since the certified copy does not record attestation in such manner as there is only one attesting witness to it, the Will of the testator i.e. Gyatri Devi needs to be tested for its genuineness. A Will is tested for its genuineness in exercise of probate jurisdiction by a competent court which this court is not.
4.3. For the reason cited in para 4.2, the present petition under Section 327 Indian Succession Act is dismissed as the foundation of this petition i.e. the Will dated 10.01.2001 of Gyatri Devi needs to be tested by court exercising probate jurisdiction.
7. Thereafter, the petitioner filed an application under Section 114 CPC before the Ld. Trial Court for review of the order dated 01.02.2019, inter alia, on the grounds that the Will was duly attested by two witnesses i.e. Sh. Hari Lal and Sh. H.K. Babar which is duly written in the column of witness on the back side of the Will RCA DJ/13/2025 Sunil Kumar Sharma Vs. State and Anr. 4 of 10 which has not been considered court by the Court. Further, at the time of execution of the Will, aforesaid two witnesses were present to attest the said Will on 10.01.2011 and the other proposed witness Madan Mohan Gautam has not reached to the Sub-Registrar's office in time so his name was not mentioned in copy of Registrar. Further Ld.Trial court overlooked that the content of original Will and certified copy of Will are same and Will was duly attested by two witnesses which satisfied the mandate of section 63(c) of the Succession Act. Further, Ld. Trial court has failed to appreciate that if there is issue of movable property only then there is no need for probate of the Will. Impugned Order
8. Ld. Trial Court dismissed the review application by observing as under:
10 In the light of the above said judgment, I am of the view that there was no mistake or error apparent on the face of record in the order dated 01.02.2019 because of the following reasons:
a. Order dated 01.02.2019 was the speaking order which was based on the mandatory requirement of two or more attesting witnesses in the impugned Will.
b. The impugned Will and its certified copy have different RCA DJ/13/2025 Sunil Kumar Sharma Vs. State and Anr. 5 of 10 witnesses mentioned (additional witness mentioned in the original copy) which raises uncertainty on the genuineness of the Will.
c. It is not clear whether H.K. Babbar was the drafter of the Will or was he an attesting witness too.
d. As the genuineness of the Will was in question, it was held in order dated 01.02.2019 that the same should be tested for genuineness before the Probate court.
e. The issue raised by the petitioner/applicant is that the name of two witnesses are written at the back of the first page and the same was ignored by the Ld. Predecessor is the line of argument which could have led the predecessor to form different opinion vis- a-vis the opinion which was actually made is not an error apparent on the face of record and the same could not be a subject matter of review as per Section 114 CPC. There are several inconsistencies in the aforesaid two Will and its appreciation depends on the process of reasoning. Thus, it is not a mistake or error apparent on the fact of the record.
GROUNDS OF APPEAL:
9. Petitioner assailed the impugned order on the similar grounds which he had taken in the application under section 114 C.P.C for review of order dated 01.02.2019.
10. I have heard the arguments of Ld. Counsel for the appellant and respondent no. 2. Case file perused. POINT FOR DETERMINATION:
11. Admittedly, petitioner has not challenged the order dated 01.02.2019 but he has filed this appeal under Section 384 of the Indian RCA DJ/13/2025 Sunil Kumar Sharma Vs. State and Anr. 6 of 10 Succession Act, 1925 against order dated 21.12.2024 whereby the review application of order dated 01.02.2019 was dismissed. The relevant provision i.e. under Section 384 of the Indian Succession Act, 1925 is reproduced as under:
384. Appeal (1) Subject to the other provisions of th is Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District judge, on application being made therefor, to grant it accordingly, in supersession of the certificate, if any, already granted.
(2) An appeal under sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908 (5 of 1908).
(3) Subject to the provisions of sub-section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908 (5 of 1908), as applied by section 141 of that Code, an order of a District Judge under this Part shall be final.
12. In Prem Chand Vs. Sunil Kumar 1990 SCC OnLine Allahabad 93 wherein Hon'ble High Court held as under:
It clearly follows from the combined operation of Section 388 and Section 384 that where an order within the meaning of Section 384 of the Act has been passed by a Court inferior to that of the District Judge within the meaning of Sub-section (1) and (2) of Section 388 then an appeal from an order granting, refusing or revoking a certificate passed by such Judge shall lie to the District RCA DJ/13/2025 Sunil Kumar Sharma Vs. State and Anr. 7 of 10 Judge and not to the High Court. It is true that an inferior Court properly invested with jurisdiction to decide such cases by the State Government in accordance with Sub-section (1) of Section 388 has concurrent jurisdiction with the District Court in so far as the exercise of all the powers conferred by this part of the Succession Act is concerned but this must be read subject to the provision to Sub-section (2) of Section 388, which clearly provides that an appeal from any order of an inferior Court falling within the scope of Section 384 of the Act can only lie to the District Judge and not to the High Court.
13. It is clear from the aforesaid provision that an appeal shall lie before Hon'ble High Court from an order granting, refusing or revoking a certificate under that part X of the Act. However, if power is invested to a court inferior to the District judge to decide the petition then the appeal against that order is lying before the District Judge and not to the Hon'ble High Court.
14. The petitioner has not challenged the order dated 01.02.2019 whereby the Ld. Trial Court declined to grant Succession Certificate. However, he filed the application under Section 114 CPC for review of order dated 01.02.2019, which was dismissed vide impugned order.
15. As per Order XLVII Rule (1), one can file a review RCA DJ/13/2025 Sunil Kumar Sharma Vs. State and Anr. 8 of 10 application against (a) decree or order from which an appeal is allowed, but from which no appeal has been preferred (b) decree or order from which no appeal is allowed (c) decision on a reference from a court of small cause. Rule 4 (1) of Order XLVII CPC provides that if it appears to the court that there is no sufficient ground for review, it shall reject the application, whereas, under Rule 4 (2) of Order XLVII where the court is of opinion that the application for review should be granted and it shall grant the same.
16. According to Rule 1 of Order XLIII CPC, there is list of orders against which one can file the appeal. Rule 1 (w) of Order XLIII provides an appeal against granting an application for review. The said Rule is read as under:
(w) an order under rule 4 of Order XLVII granting an application for review.
17. It is pertinent to note that in the case in hand, the review application of the appellant was rejected vide impugned order and as such, the review has not been granted to the appellant in terms of Order XLVII Rule 4 (2) CPC, hence, the impugned order is not appealable RCA DJ/13/2025 Sunil Kumar Sharma Vs. State and Anr. 9 of 10 under order XLIII CPC.
18. It is noted that today, appellant filed an application to withdraw the appeal due to certain technical reason with liberty to take legal recourse as per law. No specific technical reason has been given for withdrawal of the appeal, however, the legal recourse to seek the remedy is always available with the appellant.
19. In view of the foregoing discussion, the present appeal deserves dismissal being not maintainable and accordingly, appeal is dismissed. The appellant is always at liberty to take legal recourse available with him as per law. The application of appellant also disposed of as such. No order as to costs.
20. Trial Court Record together with the copy of this judgment be sent to Ld. Trial Court.
21. Appeal file be consigned to Record Room after due compliance.
Announced in the open Court (RAVINDER SINGH-1) Digitally signed by RAVINDER On 06.04.2026 District Judge-03, Court No.206, RAVINDER SINGH SINGH Date:
East District, Karkardooma Courts, Delhi 2026.04.06 15:30:47 +0530 RCA DJ/13/2025 Sunil Kumar Sharma Vs. State and Anr. 10 of 10