Delhi High Court - Orders
Mangat Ram Alagh vs State on 6 July, 2022
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TEST.CAS. 28/2003
MANGAT RAM ALAGH ..... Petitioner
Through: Mr. Puneet Taneja, Advocate & Ms.
Laxmi Kumari, Advocates.
versus
STATE ..... Respondent
Through: Ms. Astha Gupta & Mr. Karan,
Advocates for R-1.
Mr. Shaju Francis & Mr. Dhruv Alagh
for R-2A- Asha Alag & R-9-Sandeep
Alagh.
Mr. Rahul Malhotra, Mr. Anshul
Gupta & Ms. Kriti Negi, Advocates
for R-4.
Ms. Aparna Shukla & Mr. Rajat
Aneja, Advocates for applicant.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
ORDER
% 06.07.2022 I.A. 17214/2019 (U/O XXII Rule 4 of CPC)
1. The present application has been filed under Order XXII Rule 4 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC, 1908") by the applicant- Smt. Anu Duggal, daughter of respondent No. 2- Shri Ashok Kumar Alagh.
2. It is submitted in the petition that the present petition seeking probate/letter of administration Will dated 09th September, 1991 of the deceased- Shri Harbans Lal Alagh is pending. During the pendency of the petition, the respondent No.2- Shri Ashok Kumar Alagh unfortunately Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:12.07.2022 17:51:05 expired on 11th March, 2019. He is survived by his wife- Asha Alagh, son- Sundeep Alagh and daughter- Anu Duggal. Apparently, name of the applicant was deliberately not included as Class-I legal heir of deceased-respondent No. 2 in the application filed under Order XXII Rule 4 of the CPC, 1908, whereby Asha Alagh and Sundeep Alagh have been substituted as legal heirs of respondent No. 2- Shri Ashok Kumar Alagh. It is submitted sometime in the end of November, 2019 that the applicant came to know about her name being excluded from the substitution application. It is submitted that being a Class-I legal heir failing to implead her as Class-I legal heir of the deceased respondent No. 2 is wholly bad in law, malicious and mischievous.
3. The name of the applicant has not been included allegedly on the ground that she was having a strained relationship with respondent No. 2- Shri Ashok Kumar Alagh during the lifetime and respondent No. 2- Shri Ashok Kumar Alagh had severed all his relations with the applicant-Anu Duggal. Though these facts are denied by the applicant-Anu Duggal but it is further submitted that mere severance of relationship does not tantamount to exclusion of the applicant-Anu Duggal in a testamentary petition in respect of the Will of the deceased as has been laid down by Hon'ble Division Bench of this Court in the case reported in Preeti Satija vs. Raj Kumari and Anr. 2014 SCC OnLine Del 188. It is further explained that during the lifetime of respondent No. 2- Shri Ashok Kumar Alagh, the applicant-Anu Duggal had moved an Application under Order I Rule 10 of the CPC, 1908, bearing I.A. No. 20617/2013 in the present suit for impleadment on the ground that she has legitimate right, interest and share in the estate of deceased respondent No. 2- Shri Ashok Kumar Alagh, which is subject matter of adjudication in the present petition. The application was dismissed vide Order dated 08th July, Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:12.07.2022 17:51:05 2014 against which appeal bearing No. O.A. 135/2014 filed by Anu Duggal. However, the appeal was not pressed by Anu Duggal and the same was dismissed vide Order dated 09th July, 2015 with the observations that the title to a property cannot be decided in probate petition and the applicant-Anu Duggal herein has already filed a separate suit before this Court, in which the issue of title to the property in question bearing H. No. 2384, Faiz Road, Karol Bagh, New Delhi would be decided.
4. It is submitted that the applicant is entitled to be substituted as Class-I legal heir of respondent No. 2- Shri Ashok Kumar Alagh. It is also submitted that two Civil Suits bearing No. CS (OS) 571/2014 and CS (OS) 419/2020 filed by the applicant-Anu Duggal seeking partition are pending adjudication in this Court.
5. A prayer has, therefore been made that the applicant-Anu Duggal be also impleaded as one of the Class-I legal heirs ofrespondent No. 2- Shri Ashok Kumar Alagh. No formal reply has been filed on behalf of the respondents.
6. Learned counsel on behalf of the respondent No. 2 has argued that the applicant-Anu Duggal had been disowned by the deceased respondent No. 2- Shri Ashok Kumar Alagh during his lifetime and the applicant-Anu Duggal has been completely debarred from any inheritance/rights of the respondent No. 2- Shri Ashok Kumar Alagh in any of his properties. The applicant-Anu Duggal had filed an application under Order I Rule 10 bearing I.A. No. 20617/2013, which was dismissed and she could not achieve by way of present application filed under Order XXII Rule 4 read with Section 151 of the CPC, 1908 and she is trying in an oblique way to get impleaded. It is further submitted that she has already filed Civil Suit Nos. CS (OS) 571/2014 Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:12.07.2022 17:51:05 and CS (OS) 419/2020 claiming an independent right in the properties of deceased respondent No. 2- Shri Ashok Kumar Alagh and she cannot bring her dispute inter se with her father- Shri Ashok Kumar Alagh in the present proceedings which are only grant of probate in respect of the Will dated 09th September, 1991 of late Shri Harbans Lal Alagh. The application is, therefore, vehemently opposed.
7. Learned counsel for the petitioner has also argued on the similar lines and has expressed his concern that matter is now listed for final hearing and if the applicant-Anu Duggal is allowed to be a party, she would make an endeavour of bringing in facts, which are extraneous to the controversy in hand, which is limited to grant of probate dated 09th September, 1991. It is also submitted that the present Will dated 09th September, 1991 was in supersession of his earlier Will dated 16th July, 1981. It is asserted that the applicant cannot be permitted to agitate a defence, which is not a subject matter of the present case.
8. Submissions heard. My observations are as under.
9. It is a settled law that the probate in proceeding the limited question by the Court to be determined as to whether the Will is genuine and is duly attested and by granting probate/letter of administration, it is only the genuineness of the Will, which is adjudicated. The determination of title to the properties of the plaintiff or other members is beyond the scope of probate proceedings and cannot be considered.
10. In Kanwarjit Singh Dhillon vs. Hardyal Singh Dhillon & Others (2007) 11 SCC 357, the Supreme Court made a reference to ChiranjilalShrilalGoenka vs. Jasjit Singh (1993) 2 SCC 507 and observed that "the only issue in probate proceeding relates to genuineness and due Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:12.07.2022 17:51:05 execution of the Will and the Court itself is under duty to determine it and preserve the original will in its custody". The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the Probate Court. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will". The Probate Court does not decide any question of title or of the existence of the property itself.
11. In the present case, it is only a probate/letter of administration which has been sought in respect of Will dated 09th September, 1991 and no question in regard to the title of the subject properties can be considered by this Court.
12. The apprehension expressed by all the parties was that the applicant-Anu Duggal has been contesting her claim in the suit properties but admittedly for her claim by way of partition on declaration has already been agitated by her in Civil Suit bearing No. CS(OS) 571/2014 and CS(OS) 419/2020. The dispute in regard to the title of the property is beyond the scope of the present petition.
13. Here, by way of present application, the applicant-Anu Duggal merely intends to represent the interest or the defence as taken by the deceased respondent No. 2- Shri Ashok Kumar Alagh. She cannot claim any right independent of deceased respondent No. 2- Shri Ashok Kumar Alagh. She merely steps into the shoes of deceased respondent No. 2- Shri Ashok Kumar Alagh along with other legal heirs. The apprehension expressed by the parties to the suit that it may get converted into a title suit is mis-founded and this is also evident from the order of this Court while dismissing the Application under Order I Rule 10 vide Order dated 08th July, 2014.
Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:12.07.2022 17:51:0514. The applicant-Anu Duggal admittedly being the daughter of deceased respondent No. 2- Shri Ashok Kumar Alagh is Class-I legal heir and is entitled to be impleaded as a legal heir of deceased respondent No. 2- Shri Ashok Kumar Alagh and to take up/pursue the defence, which has been already impleaded bydeceased respondent No. 2- Shri Ashok Kumar Alagh. It may also be observed that the evidence of deceased respondent No. 2- Shri Ashok Kumar Alagh stands concluded and the matter is at the stage of recording of the cross-examination of RW4/1-Kanchan Khanna.
15. In light of above-noted facts, applicant-Anu Duggal, being the daughter of deceased respondent No. 2- Shri Ashok Kumar Alagh and thus Class-I legal heir, is entitled to be impleaded as the legal heir of deceased respondent No. 2- Shri Ashok Kumar Alagh along with the mother and the brother.
16. Accordingly, the application is allowed and applicant-Anu Duggal be also impleaded along with the other two legal heirs, namely, wife-Asha Alagh, son-Sundeep Alagh of wife-Asha Alagh, son-Sundeep Alagh.
17. Let amended memo of parties be filed before the next date of hearing.
18. List before the Joint Registrar for conclusion of cross-examination of RW4/1-Kanchan Khanna and the remaining evidence on 26th August, 2022.
NEENA BANSAL KRISHNA, J JULY 6, 2022 S.Sharma Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:12.07.2022 17:51:05