Delhi District Court
Through Attorney vs Mr. Parkash Chand Sethi on 3 November, 2015
IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
DISTRICT JUDGE-02, WEST, DELHI.
PC No. 189/10
Unique Case ID No. 02401C0543622010
Mr. Rajvir Sethi
S/o Late Mangal Sen
R/o A-1/5A, Mezzanine Floor,
Rajouri Garden, New Delhi - 110027.
Through Attorney :-
Smt. Indra Sethi
W/o Sh. Rajvir Sethi,
R/o A-1/5A, Mezzanine Floor,
Rajouri Garden, New Delhi - 110027. .....Petitioner
Versus
1. Mr. Parkash Chand Sethi
S/o Late Mangal Sen
R/o A-1/5A, Ground Floor,
Rajouri Garden, New Delhi - 110027.
Presently at: -
9637, Thomas Road, Jonesboro Atlanta,
G.A. 30238-5847, U.S.A.
2. Lt. Col. Inder Sen Sethi (Retd)
S/o Late Mangal Sen Sethi,
R/o J-603, Som Vihar Apartments,
R.K. Puram, New Delhi-110022.
....Opposite Parties
Date of institution of the case : 08.11.2010
Date of reserving of judgment : 02.11.2015
Date of pronouncement of judgment : 03.11.2015
JUDGMENT
1. A petition filed by Sh. Rajvir Sethi, one of the LRs of Sh. Mangal Sen dated 24.11.2010 under Section 264 of the PC No. 189/10 Rajvir Sethi vs. Parkash Chand Sethi & Anr. 1/6 Indian Succession Act for revocation of the grant of Probate to Sh. Parkash Chand Sethi and Lt. Col. Inder Sen Sethi (Retd.) vide judgment dated 26.04.2000 of the then Ld. District Judge Sh. M.A. Khan.
2. In brief , the facts are that Sh. Parkash Chand Sethi and Lt. Col. Inder Seh Sethi (Retd.), respondents were granted probate in Probate Case no. 228/1998 on the basis of alleged Will of late Sh. Mangal Sen Sethi executed on 28.12.1979 vide judgment dated 26.04.2000. It is stated that the said grant of probate was obtained fraudulently by the respondents as the deceased has no right to make the Will of the property purchased from the funds of H.U.F. The execution of the Will surrounded by suspicious circumstances. The testator was of feeble mind and overawed by powerful minds interested in getting his property and the signautres are also doubtful.
3. It is stated that the procedure for obtaining probate of the alleged Will is also defective as there was delay of about 10 years. The petition was not signed by petitioner no.1 and now Power of Attorney was filed on his behalf. The petition was not verified by attesting witness.
4. It is stated that the applicant Sh. Rajvir Sethi alleged to have filed 'No Objection Certificate' affidavit, which is without any date and also court has not recorded his statement. It is further stated that the NOC was got signed from the applicant Sh. Rajvir Sethi by Sh. Parkassh Chand Sethi by playing fraud and sentimentally black mailing. It was obtained by fraud or by fabrication. It is stated that a civil suit PC No. 189/10 Rajvir Sethi vs. Parkash Chand Sethi & Anr. 2/6 for possession was decreed against the applicant on the basis of probate of the Will but applicant is a co-owner of the property and civil suit is pending before the court of Sh.Narender Kumar, Ld. ADJ for 08.11.2010. The applicant prayed that the Probate dated 26.04.2000 on the alleged Will may be revoked or grant any other relief which this court may deem fit and proper.
5. The respondent no.1 Sh. Parkash Chand Sethi served. However, applicant failed to take effective steps for service of respondent no.2, therefore, against him the present petition was dismissed for non-prosecution by my Ld. Predecessor vide order dated 26.11.2012.
6. The respondent no.1 had filed several letters from present residence located at 9637, Thomas Road, Jonesboro Atlanta, G.A. 30238-5847, U.S.A. In the letters, he stated that a No Objection Certificate submitted by the petitioner when the Probate case was filed by him. It is further stated that the petitioner/applicant has illegally occupied the Mezzanine floor of property no. A-1/5A, Rajouri Garden, New Delhi-110027, which was already mutated in his name as per order of Ld. District Judge in Probate case.
7. It is stated that the respondent no.1 has been settled in America for the last 50 years and now 82 years old. He has been paying all the taxes and charges of the property in question. It is further stated that the petitioner has not approached the court within the time limit prescribed by law as he has all the knowledge of earlier Probate petition where he had filed No Objection Certificate. It is stated that now PC No. 189/10 Rajvir Sethi vs. Parkash Chand Sethi & Anr. 3/6 after 10 years, the Probate order dated 26.04.2000 cannot be revoked on any technical reason or stated to be void by petitioner.
8. I have heard Sh. S.K. Badhwar, Ld. Counsel for the applicant Sh. Rajvir Sethi and Sh. Jagdish Sethi, Ld. Counsel for the respondent no.1.
9. Ld. Counsel for the applicant/petitioner submits that the present application is within limitation because he came to know about the probate when in a civil case, orders have been passed against him on the basis of alleged Will and probate case in the month of October, 2010 and immediately present application has been filed. He further submits that the petitioners (respondents herein) have played fraud and filed forged and fabricated 'No Objection' on his behalf. Ld. Counsel relied upon, 'United India Insurance Co. Ltd. vs. Rajendra Singh & Others', AIR 2000 SC 1165 and 'S.P. Chengalvaraya Naidu vs. Jagannath', AIR 1994 SC 853.
10. At the outset, it is pertinent to mention here that as per original record of Probate case no. 228/98, titled 'Parkash Chand Sethi vs. State', the applicant/petitioner Sh. Rajvir Sethi was the party. The Probate petition was filed on 13.07.1998 and notices were issued by the then Ld. District Judge for 30.09.1998. As per record, the applicant/petitioner Sh. Rajvir Sethi was served. I have gone through the summons issued to the applicant/petitioner Sh. Rajvir Sethi, which was served on 30.09.1998 duly signed by him. The summons were also sent through registered A/D. The PC No. 189/10 Rajvir Sethi vs. Parkash Chand Sethi & Anr. 4/6 registered A/D also bears his signatures. The service of notice established that petitioner had knowledge on 30.09.1998 when served personally.
11. It has been categorically observed in the judgment that applicant/petitioner Sh. Rajvir Sethi filed No Objection in the Probate case along with other LRs late Sh.Mangal Sen Sethi. In the petition, it is specifically admitted by applicant/petitioner Sh. Rajvir Sethi that No Objection was filed by him. Although now he has taken somersault and alleging the fraudulent or emotional black mail by the respondents. It is established on record that petitioner has full knowledge of pendency of Probate case on 30.09.1998 and he consciously filed NOC dated 26.10.1998.
12. Now by way of present application/petition, the applicant/petitioner cannot wriggle out and create a fresh ground for limitation, which according to him started in 2010 when he gained the knowledge. However, as per record, he has already gained knowledge in October, 1998. Therefore, limitation not started in October, 2010 but in October, 1998. In these circumstances, law is well settled in the matter of 'Kunvarjeet Singh Khandpur vs. Kirandeep kaur and others', (2008) 8 SCC 463. Applying the principle of law, the present petition is barred by limitation.
13. Now coming to the other aspect of playing fraud by the respondent on petitioner/applicant, this plea is taken after about 12 years. Although in his application he admitted that he agreed but now realize that he has been emotionally black mailed. The plea of applicant/petitioner does not hold PC No. 189/10 Rajvir Sethi vs. Parkash Chand Sethi & Anr. 5/6 water and is not believable. All the pleas of applicant/petitioner are devoid of any truth. I have gone through the cited judgments. These are not of much help to the applicant/petitioner because the facts in hand are distinguishable as per cited judgments.
14. In view of my above observation and discussion, I am of the opinion that the application/petition filed by the applicant/petitioner has no merits and is dismissed.
15. File be consigned to Record Room.
Announced in the open court today the 3rd November, 2015.
(Sanjay Kumar) ADJ-02,West/Delhi 03.11.2015 PC No. 189/10 Rajvir Sethi vs. Parkash Chand Sethi & Anr. 6/6