Delhi High Court
Dr. Anupam Bhargava vs State & Ors. on 26 March, 2009
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ IA No. 13591/2008 in Test. Case No. 10/2008
*
% 26.03.2009 Date of decision : March 26, 2009
DR. ANUPAM BHARGAVA ....Petitioner
Through: Mr. Vivek Singh, Advocate
Versus
STATE & ORS. .... Respondents
Through: Mr. M.S. Ganesh, Sr. Advocate
with Mr. K. Seshachary, Advocate
for the R - 2 & 4.
Mr. A.B. Dial, Sr Advocate with
Ms. Ritu Mishra, Advocate for R-3.
Mr. H.L. Tiku, Sr. Advocate with
Ms. Yashmeet Kaur, Advocate for
the R-5.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether 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 the Digest? Yes
RAJIV SAHAI ENDLAW, J.
1. The respondent No. 2 in this petition for grant of probate seeks stay of trial/further proceedings under Section 10 of the CPC for the reason of having instituted (prior to the institution of this petition) a petition in the High Court of Madhya Pradesh at Indore for grant of probate of another Will of the deceased. The date of the Will of which probate is claimed at Indore is prior to the date of the Will of which probate is claimed before this Court.
2. The factual matrix in so far as relevant for the present purposes only is as under.
IA No. 13591/2008 in Test. Case No. 10/2008 Page 1 of 11
3. The petitioner before this Court is the executor of a Will dated 24th January, 2006 registered with the office of Sub-Registrar, Noida on same date of the deceased Sh. K.L. Bhargava. The petitioner impleaded as respondents to petition, besides the State, respondents No. 2 & 3 as the sons, respondent No. 4 as the daughter, respondent No. 5 as the wife/companion of the deceased and M/s. KLB Aashray Nidhi, a Trust as the respondent No. 6. Under this Will the sons and daughter of the deceased have been bequeathed minuscule part of the Estate and bulk thereof is bequeathed to the wife/companion and the Trust. In the petition instituted in this Court on 4th February, 2008 itself it is mentioned that the respondent No. 2 being the son of the deceased has filed a probate at Indore in respect of an earlier Will dated 7th November, 1996 of the deceased.
4. While the present petition is supported by the wife/companion and the Trust, it is opposed by the sons and the daughter. The pleadings are complete.
5. The respondent No. 2 son has applied for stay of the present proceedings for the reason of pendency of prior instituted proceedings instituted by him at Indore. With respect to the proceedings at Indore, it may be stated that as originally filed, besides the other son and daughter (Respondents 3 & 4 herein), wife/companion was also impleaded as a respondent thereto for the reason of being the other executor and also a legatee under the Will of which probate is sought at Indore. The respondent No. 2 after the institution of the petition in this Court applied for amendment of the petition filed in Indore. Now the petitioner in this Court has also been impleaded as the respondent in the Indore court. After IA No. 13591/2008 in Test. Case No. 10/2008 Page 2 of 11 amendment, the petitioner in the Indore court (who is respondent No.2 here) besides claiming probate of the Will dated 7th November, 1996 has also pleaded that the Will of which probate is sought in this Court is illegal, false, forged, fraudulent, fabricated and fictitious document. The wife/companion and the petitioner in this Court have in the amended petition before Indore court been called upon to prove the Will dated 24th January, 2006.
6. The Will dated 24th January, 2006 expressly revokes the Will dated 7th November, 1996 of which probate has been sought at Indore. Yet another fact which is relevant is that the respondent No. 3 herein i.e. the other son of the deceased had during the lifetime of the deceased instituted CS(OS) No. 1103/2004 before this Court for partition of the various properties.
7. The senior counsel for the applicant/respondent No. 2 has relying upon the principles of Section 10 as enuntiated in Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal (1962) Suppl.
(1) SCR 450, Chitivalsa Jute Mills vs. Jaypee Rewa Cement (2004) 3 SCC 85, Gupte Cardiac Care Centre and Hospital vs. Olympic Pharma Care (P) Ltd. (2004) 6 SCC 756; National Institute of Mental Health & Neuro Sciences vs. C. Parameshwara (2005) 2 SCC 256 in support of the proposition that the principles of Section 10 of the CPC are applicable to proceedings other than the suits urged (i) that the Indore proceedings are previously instituted proceedings; (ii) that the parties to both the proceedings are the same; (iii) that the matter in issue in the present proceedings is also directly and substantially in issue in the previously instituted proceedings in Indore, where as per the IA No. 13591/2008 in Test. Case No. 10/2008 Page 3 of 11 amended petition the Will of which probate is sought in this Court is also challenged; (iv) that the Indore court is also competent to grant the relief claimed in this Court. It is thus argued that all the ingredients of Section 10 are satisfied and the Delhi proceedings have to be stayed. Reliance is also placed on M/s Arjies Aluminium Udyog Vs Sudhir Batra AIR 1997 Delhi 232 (DB) to urge that for applicability of Section 10, not the identity of main issue or all issues but the identity of matter in issue is the determining test.
8. The senior counsel for the respondent No. 3 (the other son of the deceased) has also supported the application under Section 10 of the CPC and argued that parallel trial cannot be allowed and the question of the validity of the latter Will will be tried in the Indore court also inasmuch as that is the defence of the wife/companion, to the petition before the Indore Court.
9. The counsel for the petitioner while opposing the application has relied upon Amar Deep Singh vs. State AIR 2006 Delhi 190 in which the application under Section 10 of the CPC for stay of subsequently instituted probate proceedings for the reason of pendency of a prior suit was declined. He has also relied upon National Institute of Mental Health (supra) to urge that for the applicability of Section 10, it is essential that the decision in the previously instituted proceedings should be res judicata in the subsequent proceedings.
10. The application has also been vehemently opposed by the senior counsel for the wife/companion. Relying upon Section 276 of IA No. 13591/2008 in Test. Case No. 10/2008 Page 4 of 11 the Indian Succession Act, it has been argued that probate can be granted of the last Will only; in the present case the last Will is the Will of which probate has been sought at Delhi; till the said Will is held to be invalid, there is no cause of action for institution of the probate petition of an earlier Will at Indore; that in view of the applicant/respondent No. 2 having himself now pleaded a subsequent Will in the Indore court, the Indore court cannot proceed with the grant of probate of an earlier Will. Reliance in this regard is placed on a recent Division Bench judgement of this Court in Ram Chander Sabharwal vs. Satish Chander Sabharwal 154 (2008) DLT 3 (DB) and on another judgement of a Single Judge of this Court in Rajan Suri vs. State 125 (2005) DLT 433. The Division Bench was faced with a plea of the probate petition being barred under Order 2 Rule 2 of the CPC for the reason of the dismissal of petition seeking probate of a subsequent Will. In that context, the Division Bench held that the cause of action for grant of probate of an earlier Will would arise only when the petition for grant of probate of a subsequent Will was dismissed and thus the plea of Order 2 Rule 2 CPC was not available. In Rajan Suri(supra), the petition for grant of probate of an earlier Will was dismissed under Order 7 Rule 11 of the CPC in view of a latter Will of the deceased.
11. I had at the outset of the hearing only enquired from the senior counsel for the applicant/respondent No. 2 as to how Section 10 could be invoked inasmuch as the case for grant of probate of the Will sought for in Delhi was not pending before the Indore court. The reply of the applicant/respondent No. 2 is that if the petition before the Indore Court is defeated for the reason of a subsequent Will (of which probate has been sought in this Court) being proved, there IA No. 13591/2008 in Test. Case No. 10/2008 Page 5 of 11 would be no impediment to the grant of probate by this Court. I had also drawn the attention of the senior counsel for the applicant/respondent No. 2 to Section 271 of the Indian Succession Act which is as under:-
"S. 271 Disposal of application made to Judge of District in which deceased had no fixed abode.-When the application is made to the Judge of a district in which the deceased had no fixed abode at the time of his death, it shall be in the discretion of the Judge to refuse the application, if in his judgment it could be disposed of more justly or conveniently in another district, or, where the application is for letters of administration, to grant them absolutely, or limited to the property within his own jurisdiction"
12. It was enquired as to whether the insertion of the aforesaid provision negated the mandatory application of Section 10 of the CPC to such proceedings and as to whether the same did not incorporate the principle of primacy of fixed place of abode and convenience and equity in such proceedings, in place of the principle of prior institution enshrined in Section 10 of the CPC.
13. It is not in dispute that the properties both movable and immovable, forming the Estate of the deceased are situated both at Indore and Delhi. It is also not in dispute that this Court also has the jurisdiction to entertain the petition. It is also not in dispute that the deceased since 2004 till his demise on 17th December, 2006 was residing at Noida and died at a hospital in Noida. At this stage, it can thus be presumed and was not controverted by the senior counsel for the applicant/respondent No. 2 that the deceased at the time of his death had a fixed place of abode at Noida. The counsel for the petitioner and the senior counsel for the wife/companion also did not IA No. 13591/2008 in Test. Case No. 10/2008 Page 6 of 11 argue that the Indore court did not have the territorial jurisdiction and it could possibly be not so argued in the face of property being situated at Indore.
14. In the aforesaid state of facts it has to be decided whether the proceedings before this Court are to be stayed under Section 10 of the CPC or not.
15. In my opinion, the applicant/respondent No. 2 is not entitled to the relief of stay of trial/proceedings before this Court. What is for adjudication at present, whether before this Court or before the court at Indore is the validity of the subsequent Will dated 24th January, 2006. If the said Will is found valid, the proceedings on the basis of earlier Will shall necessarily fail. Thus, we are at this stage left with only the proof of the subsequent Will. Which Court is competent to go into the validity thereof, this Court or the Indore court.
16. In my view, it has to be necessarily this Court for the following reasons:-
(i) The executor named in the said Will is the petitioner before this Court. Under Section 222 of the Indian Succession Act probate shall be granted only to an executor appointed by the Will; it is only when the named executor renounces or fails to accept the executorship that Will may be proved and the probate may be granted to the person who would be entitled to administration in case of intestacy. The executor is the dominus litus. It is so held in Ananga Mohan Pal Vs Balai Chand Pal AIR 1921 Calcutta 124. The executor IA No. 13591/2008 in Test. Case No. 10/2008 Page 7 of 11 named in the said Will having opted to apply probate thereof in this Court, he cannot be compelled to prove the said Will before the Indore Court. It was held in the said judgment that the choice of forum of the Executor should be given effect to, unless there are sufficient grounds made out.
(ii) Substantial part of the Estate of the deceased under the subsequent Will has been bequeathed to the Trust. The Trust is a party to the present proceedings but not a party before the court at Indore. Trust being a beneficiary/legatee under the subsequent Will is a necessary and/or a proper party to any proceedings contesting the validity of the said Will.
(iii) The question of proof of the subsequent Will was raised first before this Court. It was only thereafter that the applicant/respondent No. 2 applied to the Indore Court to plead in the petition instituted there the invalidity of the subsequent Will. Similarly, the petitioner before this Court was impleaded as party to proceedings before Indore Court, after institution of proceedings before this court. Under Section 21 of the Limitation Act, the principle is that where after the institution of suit a party is added, the proceedings as regards him are deemed to have been instituted when he was so made a party. Thus qua the petitioner herein, it cannot really be said that the Indore proceedings is the previously instituted proceedings.
(iv) Section 271 of the Indian succession Act also brings into play the discretion in the matter of entertaining probate proceedings. In my view the same negates the strict IA No. 13591/2008 in Test. Case No. 10/2008 Page 8 of 11 application of Section 10 of the CPC. As aforesaid, the question for adjudication at present is the proof of the subsequent Will. What has to be thus considered is that which is the convenient Court for proving of the subsequent Will.
(v) In this regard I find the following factors relevant:-
(a) The subsequent will is registered at Noida which though not falling within the jurisdiction of this Court is a part of the National Capital Region and in practical life, it is found that today there is no difference whatsoever for the citizen whether living in a colony in Delhi or in the adjoining house falling within Noida. Owing to proximity, in the event of records of registration being required, as in my opinion would be required considering the challenge thereto, it will be more convenient to have the said records in this Court rather than in the courts at Indore.
(b) The executor to the subsequent Will is a resident of Delhi. As aforesaid the probate can be granted to the executor only. Though the applicant/respondent No. 2 has in his pleadings alleged that the petitioner executor is in collusion with the wife/companion but there does not appear to be any direct relationship of the petitioner executor to the deceased. The deceased, if has executed the subsequent Will, appears to have reposed confidence in the executor. The executor cannot be compelled to prove the Will at a distance in the courts at Indore and may not be IA No. 13591/2008 in Test. Case No. 10/2008 Page 9 of 11 equipped to or chose to do so and it would result in Will being not established/proved.
(c) The witnesses as disclosed to the subsequent Will have given their addresses of Delhi and the presumption is that they are available at Delhi only. The Will has to be proved by the testimony of the witnesses. The witnesses cannot be compelled to appear in a Court beyond a certain distance (Order XVI Rule 19 of CPC).
However, this Court can compel the appearance of the said witnesses. The law preventing compulsive appearance of the witnesses beyond certain distance may prejudice the proof of the said Will. The Privy Council as far back in Sm Ashtbhuja Ratan Kuer Vs Thakur Debi Baksh Singh AIR) 1944 PC 29 has held that in the exercise of discretion, the availability of witnesses and their convenience is a relevant factor.
(d) The beneficiaries/legatees as borne out by the subsequent Will are also at Noida having proximity to this court in comparison to the proximity to the Courts at Indore.
(vi) It is not as if Delhi is an alien place for the applicant/respondent No. 2 or his brother and sister who are supporting him in this application. When they instituted a suit for partition against the deceased, claiming the properties to be of the HUF and which properties now form part of the Estate of the deceased, they chose to file the same in Delhi and not in the Courts at Indore. It thus cannot be said that the applicant/respondent No. 2 or his brother and sister will suffer IA No. 13591/2008 in Test. Case No. 10/2008 Page 10 of 11 or prejudice in any manner whatsoever by the trial before this Court.
17. I may also notice another contention of the senior counsel for the wife/companion. It was contended that the applicant/respondent No. 2 is a senior counsel of the High Court of MP at Indore and the wife/companion is even now suffering and will continue to suffer if compelled to litigate at Indore, for the said reason. It was argued that she is having difficulty in engaging and retaining advocates because of huge clout and goodwill enjoyed by the applicant/respondent No. 2 there and that her case is suffering for the said reason. However, since no such averments have been made on affidavit, I am not entering into the said question.
18. The application is therefore dismissed. However, with no orders as to costs.
RAJIV SAHAI ENDLAW (JUDGE) March 26, 2009 RB IA No. 13591/2008 in Test. Case No. 10/2008 Page 11 of 11