Judgment:
J.M. Malik, J.
1. Smt. Bimla Devi, defendant died on 12.12.2006, she left behind him Sh. Shivraj Kishan Gupta, Smt. Neena Jain and Smt. Neera Goel as her legal representatives. Counsel for the plaintiff therein filed an application under Order 22 Rule 4 CPC for bringing on record the legal representatives of the deceased defendant. The above said legal representatives contested the above said application. According to them, Smt. Bimla Devi, on 26.05.2004, created a trust wherein her entire estate i.e. movable as well as immovable assets including all debts and claims due to her was to be held in a trust for the benefit of her two grand sons namely Nitin Gupta and Namit Gupta both sons of Sh. Shiv Krishan Gupta to whom she had bequeathed her entire share. The Trust Deed further mentioned that it would be called 'Nitin and Namit Benefit Trust'. Consequently, the said Trust represents the estate of deceased Smt. Bimla Devi and her legal representatives. It was prayed that said trust be imp leaded as legal representative of Smt. Bimla Devi.
2. The plaintiff herein hotly contested the above said objections. It is alleged that the Will and the Codicil are forged documents and the trust was allegedly created to use it as a tool of obstruction in the process of partition. Petitioners are enjoying almost three-fourth part of the Amrita Shergil Marg property and have excluded other co-owners namely Avtar Krishan and Balraj Krishan. The Will is not signed by Neera Goel, daughter of deceased about her share from the estate of deceased defendant. Both the Will and Codicil are not registered documents. It is in another proceedings pending before this Court in RFA 51/2005, the counsel for these objectors who was the counsel for Smt. Bimla Devi, the deceased defendant herself, had brought to the notice of the Court that Smt. Bimla Devi had suffered a severe brain haemorrhage on 3.5.2004 and at the time of alleged execution of Codicil, she was under coma.
3. Learned Trial Judge allowed the application under Order 22 Rule 4, CPC and dismissed the objections raised by defendants. Learned Judge also marked, 'the story of so called execution of Will and Codicil by the deceased defendant and creation of Trust in favor of the alleged beneficiaries who are the major persons appears to be fabricated and motivated as a tool to create obstruction in the process of partition.
4. I have heard the counsel for the parties. Learned Counsel for the respondents have placed reliance on an Apex Court's authority reported in T. Venkata Narayana and Ors. v. Venkata Subbamma (Smt.) (Dead) and Ors. : [1996]3SCR1042 , wherein it was held that:
4. The only question is: whether the respondent is entitled to adduce secondary evidence to prove the alleged Will said to have been executed by Venkata Subbamma in her favor? The admitted position is that in the partition suit, after the Succession Act came into force, namely, 28-8-1969 Venkata Subbamma had compromised with her son and obtained a decree with covenants contained therein. What is the effect of that decree is the subject-matter in the pending suit. Whatever rights that were available to her there under would be available to the respondent who has come on record as legal representative. The mere suit for injunction cannot be converted into a suit for probation of a Will whereat the Will is to be proved. If the Will is to be proved according to law, it has to be by way of a probate in the court having competency and jurisdiction according to the procedure provided under the Indian Succession Act, 1925. That procedure cannot be converted in a suit for mere injunction as a probate suit and direct the parties to adduce evidence, be it primary or secondary evidence as the circumstances may warrant. The High Court has committed error of law and jurisdiction in directing adduction of secondary evidence in the suit for injunction to prove the Will alleged to have been executed by Venkata Subbamma.
5. The learned Counsel for the respondents submitted that the above said Will and Codicil bristle with a number of question marks. In this context they drew my attention towards the following extract of Codicil dated 26.5.2005,
IN WITNESS WHEREOF, I, the testator, have executed this Codicil to my Will through Mr. Rakesh Jain, who has signed on my behalf and by my directions, as I am unable to sign due to weakness in my hand, on the day, month and year first mentioned, in presence of witnesses, who have signed the same in my presence and in the presence of the aforesaid and in the presence of each other.
It was argued that Codicil is covered by layers of suspicion.
6. Instead of touching the heart of the problem, the learned Counsel for the respondent just skirted it. It must be borne in mind that all the natural legal representatives have got no objection to the Will. It is well settled that no probate is required in the State of Delhi. In a recent authority reported in Rajan Suri and Anr. v. State and Anr. : AIR2006Delhi148 , it was held that a person has a right to set up a Will even in collateral proceedings and there is no need of obtaining probate. The relevant paras are reproduced as follows:
31. It is thus apparent that no right as executor can be established in any Court unless probate or letters of administration have been obtained of the Will in view of the provisions of Section 213 of the said Act. However, the said Section 213 would have no applicability in Delhi and it is not necessary to obtain probate of a Will in Delhi before any claim is based on that Will. A person has a right to set up a Will even in collateral proceedings and there is no need of obtaining probate thereof. In this behalf, reference may be made to the judgment in Behari Lal Ram Charan v. Karam Chand Sahni which has been followed by this Court in Sardar Prithipal Singh Sabharwal v. Jagjit Singh Sabharwal 1996 (III) AD (Delhi) 281. It was observed in Behari Lal Ram Charan case (supra) as under:
From a bare perusal of these two sections it is apparent that the objection of defendant No. 1 on the preliminary issue raised by him in the trial Court was without any substance Clause (a) of Section 57 read with Sub-section (2) of Section 213, it would appear applies to those cases where the property and parties are situate in the territories of Bengal, Madras and Bombay while Clause (b) applies to those cases where the parties are not residing in those territories but the property involved is situate within those territories, Clause (c) of Section 57, however, is not relevant for the present purpose, thereforee, where both the person and property of any Hindu, Budhist, Sikh or Jaina are outside the territories mentioned above, the rigour of Section 213, Sub-section (1) is not attracted.32. A similar view was also taken by the learned Single Judge in Murlidhar Dua v. Shashi Mohan : 68(1997)DLT284 and Santosh Kakkar v. Ram Prasad 71 (1998) DLT 147. It was held that the provisions contained in Section 213 of the said Act requiring probate do not apply to Wills made outside Bengal and the local limits of ordinary original jurisdiction of High Courts of Madras and Bombay except where such Wills relate to property situated in territories of Bengal or within the aforesaid local limits. In a recent judgment of the learned single Judge of this Court in Mrs. Winifred Nora Theophilus v. Mrs. Lila Deane : AIR2002Delhi6 . It was observed in para 10 as under:10. On interpretation of Section 213 read with Section 57(a) and (b), the Courts have opined that where the Will is made by Hindu, Budhist, Sikh and Jaina and were subject to the Lt. Governor of Bengal or within the local limits of Ordinary Original Civil Jurisdiction of High Court of Judicature at Madras and Bombay or even made outside but relating to immovable property within the aforesaid territories that embargo contained in Section 213 shall not apply, that is what the various judgments cited by the learned Counsel for the defendants decide. thereforee, there is no problem in arriving at the conclusion that if the Will is made in Delhi relating to immovable property in Delhi by Hindu, Buddhist, Sikh or Jaina, no probate is required.
7. In Aishwarya Dev Chand Katoch v. T.M. Properties Private Limited 133 (2006) DLT 89, which was a suit for declaration and perpetual injunction, it was held in paragraph 16,
16. As held in various judicial pronouncements of this Court for Hindus, in Delhi, it is not necessary to have a will probated before laying a claim there under. , Behari Lal v. Karam Chand).
8. In Om Prakash Kohli v. Ravi Prakash Kohli and Ors. 2002 III AD (Delhi) 1083, which was a suit for partition, it was held in paragraph 19,
19. Yet another argument advanced was that the will set up by the defendants had not been probated and thereforee the same cannot be proved unless it is so probated. So far as this argument is concerned it has simply to be stated to be rejected. This is for the reason that it is not necessary that will must be got probated before it can be given effect to. In Delhi no such notification or order has been issued to make it mandatory. thereforee, there is no hesitation in rejecting this particular plea.
9. In S. Charanjit Singh and Anr. v. Bharatinder Singh and Ors. it was held that where there are rival claims, one based on Will of a deceased defendant and another on natural succession, proper course is to implead both claimants. The Punjab and Haryana High Court also placed reliance on another full bench case reported in Mohinder Kaur v. Piara Singh where it was held that in view of this, proper course to follow is to bring all the legal representatives on record so that they vouchsafe the estate of the deceased for ultimate benefit of the real legal representatives.
10. In light of the above said discussion, I hereby set aside the order passed by the trial court. The trial court is not supposed to rush to the conclusions. The off the cuff observations made by the learned trial Judge about the Will and Codicil will have no bearing on the facts of this case. The above trust be added as one of the parties i.e. legal representatives of Smt. Bimla Devi, since deceased, in addition to the others. All the problems involved herein must be investigated and discussed down to the ground. A copy of this order be sent back to the Trial Court forthwith. Copy of this order be given dusty to both the parties under the signature of the Court Master. Parties are directed to appear before the trial court on the date already fixed there.