Gita Mittal, J
1. By this order, I propose to dispose of is No. 1002/2001 filed under Order 9 Rule 13 of the Code of Civil Procedure, 1908 for short 'CPC' filed by Smt. Santosh Soni, respondent No. 1 and is No. 8432/2001 filed under Order 39 Rules 1 and 2 CPC filed by the plaintiff. is Nos. 1002/2001 and 8432/2001
2. It is necessary to notice some essential dates and facts in order to appreciate the issues which are raised. Late Shri Tara Chand was the owner of House No. 2023-A, Rani Bagh, Shakur Basti, Delhi-34. His wife had pre-deceased him. Late Shri Tara Chand was blessed with one son Shri Harish Chander Arora and one daughter Smt. Santosh Soni-respondent No. 2. Shri Tara Chand expired at Delhi on 4th June, 1998 leaving behind these persons as his class one heirs.
3. These applications have been necessitated as Smt. Santosh Soni claimed to be the legatee in the last Will and Testament of late Shri Tara Chand dated 30th June, 1995 in her favor. She contends that by a public notice issued in the daily newspaper 'Veer Arjun' in its 16th February, 1996 issue, late Shri Tara Chand had publically announced that his son Shri Harish Chander Arora, his wife Smt. Usha Arora and his son shall have no connection with his movable and immoveable assets and has disowned and disinherited these three persons from succeeding to his assets.
4. After the death of late Shri Tara Chand, Smt. Santosh Soni had been compelled to institute Suit No. 218/1998 on 18th July, 1998 against Shri Harish Chander Arora in the district courts praying for a declaration and injunction in respect of property which forms the estate of late Shri Tara Chand.
5. In the meanwhile Smt. Santosh Soni, respondent No. 2 has submitted that apart from filing of the aforenoticed civil suit, she also took steps seeking probate of the last Will and testament dated 30th June, 1995 which was executed by late Shri Tara Chand. On or about 20th April, 1999, the respondent No. 2 filed Probate Case No. 104/1999 before the district courts seeking probate of the Will dated 30th June, 1995. Shri Harish Chander Arora was shown on the list of relatives as her brother and son of late Shri Tara Chand and was served with the notice of the probate petition. Shri Harish Chander Arora had put in appearance in this matter on 24th September, 1999 through learned Counsel representing the petitioner in the present case. This matter was thereafter repeatedly adjourned at the request of Shri Harish Chander Arora for filing of a reply.
6. At no point of time did Shri Harish Chander Arora disclose either in the civil court before whom the Suit No. 212/1998 was pending or in Probate Case No. 104/1999 that late Shri Tara Chand had left any Will dated 4th June, 1998 in favor of his son Master Nitish Arora or that Shri Harish Chander Arora had filed the present probate case in this Court seeking probate of such Will.
7. It appears that only on 15th December, 2000 Shri Harish Chander Arora filed a reply in Probate Case No. 104/1999 wherein, for the first time, Shri Harish Chander Arora made the following disclosure :
That the suit is not maintainable as a probate has been ordered to be issued by a competent court of law in favor of Master Nitish Arora, son of Shri Harish Arora by the deceased Shri Tara Chand, whose probate is the issue involved in this case. Hence, this suit is liable to be dismissed on this own ground.
This reply has been exhibited before this Court as Exhibit RW1/P2. Perusal of the above shows that even in this reply, Shri Harish Chander Arora neither made disclosure of either the Will purportedly executed by late Shri Tara Chand in favor of Master Nitish Arora which was the subject matter of the present proceedings nor had given any details of the Probate Case in terms of the case number or the court which had granted the probate.
8. Mrs. Kamlesh Mahajan, learned Counsel for the applicant Smt. Santosh Soni points out that on receipt of the copy of this reply from Shri Harish Chander Arora, immediately steps were taken and inquiries made to find out the particulars of the case and the order which had been referred to in the reply filed in the probate case. On account of the winter vacation in the courts, it had taken time to complete the inquiry before the district courts. After verifying that no probate had been granted by the district courts, the inquires were made in this Court and the information with regard to the filing of the present case by Shri Harish Chander Arora on behalf of his son as well as of the passing of the orders on 23rd October, 2000 was received. The applicant has pointed out that inasmuch as the present matter was at that time at the stage of acceptance of the administration bond which had been furnished by the petitioner purportedly in compliance of the order dated 23rd October, 2000, the respondent No. 2-Santosh Soni had immediately filed an application bearing No. 387/2001 on 12th January, 2001.
9. The applicant also filed is No. 1002/2001 under Order 9 Rule 13 CPC and is No. 1003/2001 praying for an order of restraint against the petitioner from forcibly dispossessing the applicant from the property No. 2023-A, Rani Bagh, Shakur Basti, Delhi. This court after hearing the parties passed an order dated 2nd February, 2001 (date wrongly typed as 2nd February, 2002) directing the parties to maintain status quo. The Registry was also directed not to engross the probate on the stamp papers till further orders.
10. The petitioner has filed replies to these applications and has strongly contested the same. The following issues were framed on the pleadings of the parties on 28th August, 2001.
(1) Whether the applicant was not properly served with the notice in the probate petition?
(2) Whether the application is within time?
(3) Relief?
11. The respondent has filed her own affidavit in support of the applications while the petitioner filed affidavits of his father and guardian Shri Harish Chander Arora and an affidavit of Shri Prabhu Dayal in support of the defense.
12. Mr. R.S. Dhull, learned Counsel for the petitioner has vehemently submitted that the applications filed by respondent No. 2 are malafide and deserves to be rejected. He has contended that the publication of the citation was effected in the newspaper on 18th September, 1998 and the respondent No. 2 has to be considered as having been duly served in the matter. The copy of the issue of 'The Statesman' dated 18th September, 1998 wherein publication was effected shows that the same is not a citation of publication of a notice for the respondent No. 2 but is a general citation to the public at large.
13. Perusal of the petition shows that Smt. Santosh Soni was originally shown as residing at the Rani Bagh address. The same has been erased by typing fluid and thereafter her address as B-561 Avantika, Rohini, Delhi has been over- typed thereon.
14. In these proceedings by an order dated 27th August, 1998 the Joint Registrar directed publication of the general public notice to be effected and notices to issue to the legal representatives. It appears that the notice which was issued to the respondent No. 2 was returned with the report of the process server to the effect that she could not be served as the premises were locked. Accordingly, on 29th October, 2000, the Joint Registrar has directed fresh notice to issue to the respondent No. 2 at a fresh address to be furnished by the petitioner.
The admitted position is that the petitioner did not file any fresh address for service of the respondent No. 2.
It also deserves to be noticed that the present petition was filed by the same counsel who was representing Shri Harish Chander Arora in the litigation which has been initiated by Santosh Soni, the respondent No. 2, in the district courts.
15. Instead of taking such steps for service of the respondent No. 2 as directed, the petitioner filed is No. 228/1999 under Order 5 Rule 20 of the CPC seeking issuance of a citation for service of respondent No. 2 by substituted mode. This application was listed before the Joint Registrar on 12th January, 1999 who noticed that the service report of the notice which was required to be issued to respondent No. 2 in terms of order dated 29th October, 1998 was awaited and consequently refused to pass an order for substituted service.
16. Again on 24th February, 1999, the notice which had been issued to the respondent No. 2 (on the incorrect address on the petition) was returned unserved with the report that the premises remained locked and she was not available at the given address despite repeated visits by the postal authorities. The Joint Registrar has recorded the statement made by counsel for the petitioner on the 24th February, 1999 to the effect that he did not have any other address of the respondent No. 2.
17. The proceedings recorded by this Court do not reflect any service of the notice of the filing of this petition having been effected upon the respondent No. 2. No order for service of the respondent by the substituted mode was made despite specific application of the petitioner for the same.
18. Unfortunately, it appears that non-service of the respondent No. 2 escaped notice on the court record and the matter has been proceeded in her absence without there being any order that she would be proceeded ex-parte. On 23rd September, 1999, this Court noticed that there was no contest to the petition and the petitioner was permitted to lead evidence by way of affidavits. The petitioner filed two affidavits by way of evidence based whereon, this Court passed the order dated 23rd October, 2000 granting probate of the alleged will dated 27th May, 1998 purportedly executed by late Shri Tara Chand in favor of the petitioner.
19. In this behalf, it is noteworthy that the publication of the general notice was effected on 18th September, 1998. This court did not accept the publication of the general citation as service on the respondent No. 2 in the eyes of law. Consequently, on 29th October, 1998, the Joint Registrar(A) directed issuance of fresh notice to the respondent No. 2, Smt. Santosh Soni at a fresh address on process fee and registered covers for 24th February, 1999. The petitioner in acceptance of this position and compliance of this order filed the process fee on 10th November, 1998 for issuance of summons. These notices were returned unserved by the postal authorities with the remark 'on repeated visits at the premises of the addressee the house was found locked'. Furthermore the petitioner also filed is No. 228/1999 under Order 5 Rule 12 seeking substituted service of the respondent No. 2. On this application, on 12th January, 1999 the Joint Registrar(A) had noted that since notices were awaited for 24th February, 1999, no order can be passed for substituted service at this stage.
Therefore, the petitioner certainly cannot now be heard to contend that publication of the citation on 18th September, 1998 was adequate service on the petitioner.
20. It has been submitted by Mr. Dhull, learned Counsel on behalf of the petitioner that the address of the respondent No. 2 at Rani Bagh was not so given as this property was in dispute and proceedings under Section 145 of the Code of Civil Procedure were pending. According to Mr. Dhull, learned Counsel for the petitioner, this house stood attached in those proceedings and there was no question of the respondent No. 2 residing therein.
21. I have heard learned Counsel for the parties and have given my thoughtful consideration to the matter. I find that the respondent No. 2 was never served with any notice of the filing of the petition and the pendency of the present petition despite specific directions as required under the law in this behalf. Mr. Harish Chander Arora, guardian of the petitioner, who has filed the present petition on his behalf, in his cross-examination has admitted that he was the defendant in the suit No. 212/1998 filed by the petitioner and was also served in Probate Case No. 104/1999 filed by Smt Santosh Soni which he was strongly contesting. He has also admitted that in both these cases, Smt. Santosh Soni had given her address as 2023-A, Rani Bagh, Shakur Basti, Delhi. It is also an admitted position that Suit No. 218/1998 was filed on 18th July, 1998 against Shri Harish Chander Arora. It was filed prior to the filing of the present probate petition which was filed only on or around the 18th August, 1998. In fact Shri Harish Chander Arora was even served with the summons in the suit and he put in appearance in these proceedings on 31st July, 1998. This was prior to his filing of the present petition.
22. The plaint filed by Smt. Santosh Soni in this case has been admitted before this Court by Shri Harish Chander Arora and has been marked as Exhibit RW1/P1. In this plaint, Smt. Santosh Soni had given her address as 2023-A, Rani Bagh, Shakur Basti, Delhi which was the suit property. There is no dispute that Shri Harish Chander Arora was served with the summons in this suit and had put in appearance thereon on 31st July, 1998. The matter was adjourned repeatedly and he filed a written statement only in the proceedings held on 9th March, 1999. In this suit, an order of status quo was passed by the court of Shri Sanjay Sharma, Civil Judge on 23rd April, 1999. It was noticed by the trial court that Shri Harish Chander Arora has admitted that he was residing separately from his father late Shri Tara Chand and that Smt. Santosh Soni was in possession of the suit property.
23. It appears that on 18th July, 1998, there was some disturbance at the suit property and proceedings under Section 145 of the Criminal Procedure Code were initiated by the local police. In these proceedings, Smt. Santosh Soni had filed a representation wherein she had taken a stand that she was the owner of the property of late Shri Tara Chand by virtue of the will dated 30th June, 1995. Smt. Santosh Soni has pointed out that she had asserted her rights in the civil proceedings by way of Suit No. 218/1998 wherein she was granted interim protection.
24. It is only thereafter Shri Harish Chander Arora, acting as father and guardian of his minor son Master Nitish Arora, filed the present probate petition under Section 273 of the Indian Succession Act, 1925 on the 18th August, 1998. By this petition probate of an alleged will dated 27th May, 1998 purportedly executed by late Shri Tara Chand in favor of Master Nitish Arora has been sought. In these proceedings Smt. Santosh Soni has been arrayed as party respondent No. 2 and her address has been reflected as B-561, Avantika, Rohini, Sector-1, Delhi.
25. There can, thereforee, be no doubt that Shri Harish Chander Arora was aware of the address of Smt. Santosh Soni which she had filed in the district courts and at which she had sought to be served thereby. This aspect attains further significance in the light of the typing on the present petition wherein the petitioner has first typed the address of Smt. Santosh Soni at the aforenoticed Rani Bagh address. In fact the word 'ni Bagh' and 'Delhi 34' are clearly discernible to the bald eye despite the effort made by the petitioner to erase the same by putting typing fluid on the original petition. The address of the petitioner showing her to be resident of Avantika has been over typed on the originally typed Rani Bagh address.
26. Shri Harish Chander Arora was admittedly aware of the address given by the respondent No. 2 in her case in the district courts. The statement made on behalf of the petitioner on 24th February, 1999 that counsel for the petitioner had no other address of the respondent is thereforee clearly incorrect.
27. The petitioner has failed to comply with the orders passed by this Court requiring the petitioner to furnish fresh address and notice to be issued to the respondent No. 2 at such address.
28. It is trite that in probate proceedings, the requirement of law is clear and unambiguous. The petitioner is legally required to serve the legal heirs personally while the court invites objections from the general public by issuance of a citation informing the public at large about the filing of the petition. In the instant case, specific directions were issued to the petitioner to effect service upon the respondent No. 2 and consequently the petitioner is precluded from taking any advantage from the general public notice which was issued. Even otherwise, the directions to effect service on the respondent No. 2 were made after the general public notice had been issued by the court.
29. The petitioner was fully aware of the address at which the respondent No. 2 was to be served in the litigation which had been filed by her in the district courts. The concealment by the petitioner and the concerted effort made to keep respondent No. 2 away from these proceedings is evident from the fact that his guardian delayed filing a reply in the district courts in the probate No. 104/1999 filed by the respondent No. 2 till such time the probate was granted by this Court.
30. So far as the probate proceedings are concerned, perusal of the record shows that Shri Harish Chander Arora took adjournments from 24th September, 1999 to 15th December, 2000 and did not file a reply thereto in probate case No. 104/1999. Last opportunity was given to Shri Harish Chander Arora to file a reply by the order dated 11th July, 2000 however the same was still not filed and further time was sought. On the next date of hearing, the court imposed costs for not filing reply and adjourned the matter to 14th September, 2000.
31. Again on 1st December, 2000, reply was not filed. This time Shri Harish Chander Arora was given an opportunity to file the reply by 15th December, 2000. The reply was filed on 15th December, 2000 and the matter was adjourned to 2nd March, 2001.
So far as the court proceedings are concerned, it was only on 2nd March, 2001 that the counsel for Shri Harish Chander Arora filed a photocopy of the order dated 23rd October, 2000 granting probate in the present proceedings. From the above, it is evident that even in the hearings fixed after 23rd October, 2000, Shri Harish Chander Arora did not inform the respondent No. 2 about the orders which had been passed in the present proceedings and produced the same only on 2nd March, 2001.
32. Before this Court also the petitioner did not disclose that the respondent No. 2 had set up another Will of late Shri Tara Chand. Even the reply which was filed by Shri Harish Chander Arora in the probate proceedings before the District Courts on 15th December, 2000 is replete with deliberate concealment of material facts.
33. I have carefully perused the kalandara which was filed by the police under Section 145 of the Code of Criminal Procedure. Though the parties are litigating and claiming rights over the property at Rani Bagh, however the perusal of the kalandara shows that the same was not attached or sealed in any proceedings. The kalandara merely reflects a recommendation by some police authority to attach the same.
34. I also find no justification in the plea taken by the respondent No. 2 that the civil suit and the probate proceedings filed by respondent No. 2 were different from the probate proceedings filed by the petitioner in this Court or that there was no need to disclose the Will dated 27th May, 1998 which is relied upon by the petitioner or the pendency of the present proceedings in those cases.
It is well settled that a party is bound to make very correct and complete disclosure of all facts in its pleadings. It was a fact that the respondent No. 2 had asserted rights under a Will dated 30th June, 1995 in her favor based whereon she had prayed for grant of an injunction in the civil suit which had been filed by her. The Will which is relied upon in the present proceedings is dated 27th May, 1998 and is purportedly in favor of the son of Shri Harish Chander Arora, the defendant in the civil suit. These proceedings have been filed by Shri Harish Chander Arora as father and guardian of the minor, Nitish Arora. thereforee, it is apparent that the primary defense that Harish Chander Arora would be expected to take would be that the respondent No. 2 had no right to the property and that the property belonged to his son Nitish by virtue of the Will dated 30th June, 1995. Certainly, this was a material and pertinent fact which Shri Harish Chander Arora would disclose in his written statement and reply to the probate which was filed by the petitioner. In fact the normal and prudent course of action for Shri Harish Chander Arora would have been to challenge the very maintainability of the probate proceedings and the civil suit on this basis.
35. My attention has been drawn by Mr. R.S. Dhull, learned Counsel to the deposition of Shri Harish Chander Arora in his affidavit dated 18th September, 2002 filed before this Court. In paras 15 and 16 of this affidavit Shri Harish Chander Arora has stated thus :
15. That on 15.12.2000 the respondent No. 2 was informed in the court of District and Sessions Judge, Tis Hazari that the probate of the petitioner had been granted on 23.10.2000 by the Hon'ble High Court. 16. That before that also the petitioner had been informing the respondent No. 2 and her counsel Shri H.S. Kwatra that the petitioner had already filed a probate case before the Hon'ble High Court of Delhi and the respondent No. 2 should not pursue this case of probate of respondent No. 2 before the court of District and Sessions Judge, Tis Hazari and finally on 15.12.2000 the respondent No. 2 was informed by the petitioner by way of a written statement, which was filed on the advice of the petitioner's counsel.
36. This deposition has been denied on behalf of the respondent No. 2. Even otherwise, I find that the statement made by Shri Harish Chander Arora in this affidavit cannot possibly be true in the light of the proceedings recorded by the learned trial court in probate case No. 104/1999. He suffered an imposition of costs without disclosing the later Will of the testator relied upon by him in this Court. From the manner in which the proceedings have been conducted, it was evident that Shri Harish Chander Arora made a concerted effort to prevent the respondent No. 2 Smt. Santosh Soni from being served in the present proceedings or gaining any knowledge of the proceedings in the present case.
37. The petitioner has also filed an affidavit of one Shri Prabhu Dayal who has stated that respondent No. 2 was living at B-561, Avantika, Rohini, Sector-1, Delhi.
38. I find that the respondent No. 2 has also accepted that she had been living in B-561, Avantika, Rohini, Sector-1, Delhi for some period. However she has rendered an Explanationn and also stated that she has shifted from the premises.
Shri Harish Chander Arora in his cross examination has accepted the fact that the respondent No. 2 had reflected the Rani Bagh address as her address in both the civil suits filed by her on 19th July, 1998 as well as in probate case No. 104/1999.
39. As noticed above, the petitioner in the present case had reflected the respondent No. 2 as a resident of Rani Bagh and thereafter changed his mind. The report of the process server and the postal authorities on the notices which were sent to the respondent No. 2 recorded that despite repeated visits, the house at B-561, Avantika, Rohini, Sector-1, Delhi where the respondent No. 2 was reflected as staying, was found locked. thereforee, even if the respondent No. 2 was living at B-561, Avantika, Rohini, Sector-1, Delhi, however as per the service report, the summons were admittedly not tendered either to her or to any family member and consequently it has to be held that she was never served with the summons.
40. In the light of the report of the process server and the postal authorities, it is evident that the present case is not a case of refusal of the summons by the addressee or absence from the proceedings after service but a case where the summons and notices were never tendered to the respondent No. 2 and never received by her.
41. An objection has been taken to the maintainability of is No. 1002/2001 which has been filed under Order 9 Rule 13 of the CPC. It has been contended by Mr. Dhull, learned Counsel for the petitioner that the respondent No. 2 has made a prayer for setting aside of the order of probate or its review in this application. It has been submitted that an application for review has to be made within the statutory period of limitation under Order 47 CPC while an application for revocation can be made only under Section 263 of the Indian Succession Act. learned Counsel has relied on the pronouncement of this Court reported in : AIR2004SC2093 Shipping Corporation of India Ltd. v. Machado Brothers and Ors. in support of his submission.
42. It has further been asserted that in para 11 of the is No. 387/2001, the respondent No. 2 had stated that she is filing an application for revocation of probate under Section 263/296 of the Indian Succession Act. The submission thereforee is that the respondent No. 2 was conscious of the correct position of law, yet has opted to file an application which is not maintainable.
43. I have carefully considered the objections taken by the petitioner. It is well settled that even though an application may be couched under a wrong provision of law, however so long as the power to grant the same exists, the court would be legally competent to consider the application as if made under the correct provision of law.
44. It is trite that quoting a wrong statutory provision does not create a bar and stand in the way of considering the said application as if made under the correct provision. (Re.: Palaniappa Gounder v. State of Tamil Nadu : 1977CriLJ992 ; Sunrise Enterprises v. Union of India : 2001VAD(Delhi)140 ; Delhi Cloth and General Mills Co. Limited v. Dil Bahadur 1981 (1) (Del) 478 and Chanceteam Investments Ltd. v. R.D. Ramanath Company : 110(2004)DLT708 ).
45. I find that there is no dispute that this Court has the jurisdiction to revoke a probate which may have been granted for valid reasons under Section 263 of the Indian Succession Act, 1925. It has been admitted by learned Counsel for the petitioner that no specific period of limitation is prescribed for filing an application under Section 263 of the Indian Succession Act, 1925. I find that in : 112(2004)DLT877 S.S. Lal v. Vishnu Mitter Goel and : AIR2006Delhi71 Kanwal Malhotra v. State, it has been held that limitation having not been specifically prescribed, the residuary clause, Article 137 of the Limitation Act, 1963 would apply to an application for revocation of the probate. This provides limitation of three years. In the instant case, probate was granted to the petitioner on 23rd October, 2000. Even if it were to be assumed that the same was brought to the knowledge of the respondent No. 2 on 15th December, 2000 on the filing of the reply in Probate Case 104/1999, limitation so prescribed would end on or around 15th December, 2003. I find that is No. 1002/2003 has been filed on 28th February, 2001 and consequently the objection on the ground of it being barred by limitation must fail.
46. It has also been admitted that there is no difference in the court fee which would be payable on an application under Section 263 of the Indian Succession Act and the fee that is payable on an application under Order 9 Rule 13 of the CPC. learned Counsel for the petitioner also accepts the proposition that there would be no prohibition in treating an application under Order 9 Rule 13 CPC as an application under Section 263 of the Indian Succession Act.
47. Ms. Kamlesh Mahajan, learned Counsel for the respondent has drawn my attention to the pronouncement reported at : AIR1971Pat391 Mst. Tribeni Kuer and Nr. v. Shankar Tiwari and Ors. wherein it has been held that the provisions of Order 9 Rule 13 CPC would apply to such a case. For all these reasons and looked at from any angle, the objection to the maintainability of is No. 1002/2001 based on the provision of law under which it has been filed, has to be rejected.
48. On 28th August, 2001 an issue was framed as to whether the respondent No. 2 was served with the summons. In the light of the foregoing discussion, it has to be held that respondent No. 2 was not served with the notices which had been directed to be issued to her as the legal heir of late Shri Tara Chand and consequently this issue has to be answered in favor of the respondent No. 2.
49. It has lastly been contended by Mr. R.S. Dhull, learned Counsel, that in view of the provisions of the second proviso to Rule 13 of Order 9 CPC, it is well settled that no decree can be set aside on the ground of irregularity of service. In support of this proposition, reliance is placed on : [2002]SUPP3SCR70 Basant Singh and Anr. v. Roman Catholic Mission; : AIR2003Delhi348 Parasarampuria Synthetics Ltd. v. Shankar Prasad and : 94(2001)DLT848 Virender Kumar v. Maya Devi.
50. In the case of Mt. Sheopati Kuer v. Ramakant Dikshit and Ors. reported at AIR (34) 1947 Pat 434 it has been held that the service of notice before the grant of the Probate must be such, as would give to the person alleged to have been served an opportunity to oppose the grant and require the Will to be proved in the presence of the person. The court held that the service was not such as to give opportunity to the person served to contest the grant of the Probate and that service was of no greater effect than the personal service on an infant of tender years.
In the instant case, there was no service at all of the respondent No. 2 and such defect certainly goes to the root of the matter.
51. I find that the submission in the instant case is not irregularity in service but the respondent No. 2 has categorically stated that she was never served with the notice which had specifically been directed to be served upon her. thereforee, the present case is not a case of mere irregularity in service but a case where there has been no service of the effected party. There can be no dispute with the principles laid down in the judicial pronouncements relied upon by the petitioner but in the facts of the instant case, those principles would have no application.
52. It is well settled that in a petition seeking probate of a Will executed by a deceased testator, there is a legal requirement to cite near relatives. Near relatives in such a petition, are persons who would be otherwise entitled to inherit the assigns of the deceased in case he had died intestate. In the instant case, the admitted position is that the only two legal heirs to the estate of late Shri Tara Chand, if he had died intestate, were his son Shri Harish Chander Arora and his daughter Smt. Santosh Soni. There can be no manner of doubt that the respondent No. 2, Smt. Santosh Soni, was a necessary and proper party to the probate proceedings. The relatives having been so mentioned, the law required that the near relatives be served with the citation of the petition. In : AIR2006Cal164 Pravin Kumar Kothari v. Ashoke Kothari; : AIR1968Pat481 Bishwanath Gosain v. Dulhin Lalmuni and Ors. and : AIR1947Pat434 Mt. Sheopati Kuer v. Ramakant Dikshit and Ors., it has been held that non-issuance of a citation to the near relatives would be sufficient ground for revocation of a probate of a will which was granted in favor of the executor.
53. In the light of the foregoing discussion, it has to be held that respondent No. 2 was a near relative of the deceased testator and that, though she was cited as the respondent No. 2, she was not served with the citation in accordance with law. It has also been found that Shri Harish Chander Arora, guardian and father of the petitioner in the instant case concertedly acted so as to prevent respondent No. 2 from being informed about the pendency of the present petition even though he had several opportunities in the litigation which has been commenced by the respondent No. 2.
In this view of the matter, I have no hesitation in holding that the ex- parte probate which was granted to the petitioner in the instant case by the order dated 23rd October, 2000 cannot stand.
Accordingly, is No. 1002/2001 is allowed. The probate granted to the petitioner by the order dated 23rd October, 2000 is hereby revoked.
In the light of the above discussion is No. 8432/2001 is consequently dismissed.
IA No. 1003/2001
By this application the respondent No. 2 has prayed for grant of an ad- interim injunction restraining the petitioner, his agents, assigns from dispossessing the applicant from the property bearing No. 2023 A, Shakur Basti, Rani Bagh, Delhi. My attention has been drawn to the order dated 23rd April 1999 in CS(OS) No. 212/1998 wherein Shri Sanjay Sharma, the learned Civil Judge has held that Smt. Santosh Soni is in actual physical possession of the suit property and has consequently restrained Shri Harish Chander Arora, his associates, etc from dispossessing the plaintiff and her family members to the suit property till disposal of the suit otherwise then by due process of law. They were further restrained from placing any lock on the main door of the suit property or any portion of the suit property till the final decision of the suit. This order has admittedly not been set aside, varied or modified by any court and continues to subsist. Shri Nitish Arora is the son of Shri Harish Chander Arora.
The respondent No. 2 being in admitted possession of the property No. 2023 A, Shakur Basti, Rani Bagh, there can be no dispute that the respondent No. 2 has made out a prima facie case. In these facts, I find that balance of convenience, interest of justice and equity are in her favor and against the petitioner. The petitioner has yet to establish the execution and legality of the Will dated 27th May, 1998 relied upon by him.
Accordingly, this application is allowed. The petitioner, his representatives, agents, etc are restrained from dispossessing the respondent No. 2 from the property No. 2023-A, Rani Bagh, Shakur Basti, Delhi till disposal of these proceedings.