* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO.No.448/2010
%
Decided On: 13.12.2010
RAJ KUMAR & ANR. .... Appellants
Through: Mr.Rajeshwar Tyagi, Adv.
Versus
State & ORS. .... Respondents
Through: None.
CORAM:
HON’BLE MR. JUSTICE M OOL CHAND GARG
1. Whether reporters of Local papers may be
allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether the judgment should be reported in
the Digest?
: M OOL CHAND GARG,J.(ORAL)
CM No.22013/2010
Allowed subject to just exceptions.
Application stands disposed of.
FAO No.448/2010
1. This appeal arises out of an order passed by the Addl. District
Judge dated 05.08.2010whereby the Addl. District judge has allowed an
application filed by the respondents under Section 11 of CPC and
dismissed the Probate petition No 319/06 filed by the appellant under
Section 276 of Indian Succession Act seeking probate of the will dated
02.04.1998 holding that the issue had already been decided by the said
Court in petition No 318/06 in which the parties were same and
therefore the Court cannot try the same issue again being hit by Section
11 of CPC.
2. Briefly stated the facts of the case are that two Probate Petitions
were filed in relation to two wills alleged to have been executed by late
Smt. Neerta Devi on two different dates, Probate Petition No 318/06
was filed by the respondents seeking probate of the will dated
FAO 448/2010 Page 1 of 6
22.08.1994 and Probate Petition 319/06 was filed by appellant seeking
probate of the Will dated 02.04.1998. In the Probate Petition 319/06
evidence of appellant was closed, he took no further steps to recall the
order for leading evidence. Meanwhile the other connected matter i.e
petition No 318/06 filed by the respondents was decided in favour of
the respondents.
3. The appellants who were arrayed as respondents in the aforesaid
probate petition raised objections to the grant of probate to the will
dated 22.08.1994 by alleging that the said will was a forged and
fabricated one and the testatrix has executed another will dated
2.4.1998 propounded by them. However, to prove that Will no evidence
was led by them. In the said probate petition, the Additional District
Judge after going through the statement of the witnesses particularly
the attesting witness i.e PW 3 came to the conclusion that the will
dated 22.08.1994 was validly executed by the testatrix and as there was
no evidence led by the appellant. It was held that no other will was
executed by the same testatrix. The issue was thus decided in favour of
respondent. The appellant aggrieved by that order of the Ld. ADJ
challenged it before this Court in FAO 276/2010.
4. Before this Court also appellant reiterated the same objections
taken before the Ld. ADJ but had brought nothing on record to show as
to what happened to the second probate petition filed by the appellants
in relation to the second will which had been propounded by the
appellants as the last and final will of the testatrix. This court made
following observations in an order dated 20.10.2010:-
“Learned counsel for the appellant states that the
probate petition filed by them with respect to the
will dated 02.04.1998 bearing No.233/1999 has
been dismissed by the ADJ vide the impugned
order which is the subject matter of the present
appeal. As such now no such petition is pending. In
fact, on account of dismissal of the suit and the
appeal having not been filed, the Court
can presume that the appellants are not interested
in revival of their probate petition which is the only
defence taken by them in this appeal. It
may, however, be observed that they intend to file
an appeal against the order dismissing their
probate petition .”
FAO 448/2010 Page 2 of 65 This court also observed that:-
15. In any event the appellants having not brought on
record the second will which they state was the last and
final will of deceased Nerta Devi and failed to prove the
said Will they cannot now question the probate of
registered will left by late Smt. Nerta Devi. It many a
times happens for various reasons that Will are
executed in favour of persons who are not the legal heirs
of the deceased. As such it cannot be a good reason to
discard the Will of the deceased executed in favour of
the respondent only because the appellants who are the
sons of the deceased have not been made the
beneficiary.17. Accordingly, I find no reason to interfere with the
judgment of the Addl. District Judge. The appeal is
dismissed at this stage itself with no orders as to cost.”6. Before the passing of the aforesaid order in FAO No.276/2010 by
this Court, and after having won in the court of the ADJ, the
respondents also moved an application under Section 11 of CPC in the
Probate Petition No 319/06 which was heard by the Addl. District
judge and was allowed vide an order dated 05.08.2010 holding that the
probate petition No 319/06 is barred by the principles of Res Judicata.
Appellant aggrieved by this order of the ADJ has again filed an appeal
before this Court. The relevant extract of the order of the ADJ is
observed here as under:-“Applicant Bhudev Prasad had filed a petition U/s 276 of
the Act seeking probate of a Will allegedly executed by
the same Testatrix, in his favour on 22.08.1994, which
has been decided by this Court vide its order /Judgment
dated 25.03.2010.It is submitted by Ld. Counsel for applicant/ respondent
that both of these cases re pending between the same
parties and issue as to whether deceased Neerta Devi
had validly executed a Will dated 22.08.1994 while in
sound disposing mind or that it was the last Will and the
testament of the deceased was framed and has been duly
decided by this Court. Due to said reason, present
petition is hit by principles of res-judicata. Ld. Counsel
took me through judgment of said case, where following
was observed by the Court.“From the statements of PW1……………. And
other witnesses particularly attesting witness
FAO 448/2010 Page 3 of 6
i.e. PW3 it is proved that Will in question was
validly executed by the testatrix in her sound
and disposing mind. On the other hand, it is
not proved that any other Will was also
executed by the same testatrix.”
It is not denied that the present petitioner was also a
party in said case being an objector. Section 11 of CPC
bars the court from trying any suit of issue in which the
matter directly and substantially in issue has been
directly and substantially in issue in a former suit
between the same parties or between parties under
whom they or any of them claim, litigating under the
same title, in a court competent to try such subsequent
suit or the suit which such issue has been substantially
raised, and has been heard and finally decided by such
Court.
As mentioned above, it is not disputed by the petitioner
that parties in both case are same and aforementioned
petition was decided by the said Court and same was
competent to try petition in hands i.e subsequent suit.
On the basis of above discussion, in my opinion, this
court cannot try same issue again being hit by Section
11 of CPC. Application is thus allowed
7. I have heard the submissions of the appellant, who contends
that at the time of filing of the present probate petition, the matter of
the earlier probate case No. 318/06 had not attained finality and was
still sub-judice before this Court in FAO 276/2010.
8. At this juncture, it would be appropriate to take note of Section
11 of CPC, which reads as under:-
11. Res judicata -No Court shall try any suit or issue
in which the matter directly and substantially in issue
has been directly and substantially in issue in a
former suit between the same parties, or between
parties under whom they or any of them claim,
litigating under the same title, in a Court competent to
try such subsequent suit or the suit in which such
issue has been subsequently raised, and has been
heard and finally decided by such Court.
Explanation I.-The expression “former suit” shall
denote a suit which has been decided prior to the suit
in question whether or not it was instituted prior
thereto.
FAO 448/2010 Page 4 of 6
Explanation II.-For the purposes of this section, the
competence of a Court shall be determined irrespective
of any provisions as to a right of appeal from the
decision of such Court.
Explanation III.-The matter above referred to must in
the former suit have been alleged by one party and
either denied or admitted, expressly or impliedly, by
the other.
Explanation IV.-Any matter which might and ought to
have been made ground of defence or attack in such
former suit shall be deemed to have been a matter
directly and substantially in issue in such suit.
Explanation V.-Any relief claimed in the plaint, which
is not expressly granted by the decree, shall, for the
purposes of this section, be deemed to have been
refused.
Explanation VI.-Where persons litigate bona fide in
respect of public right or of a private right claimed in
common for themselves and others, all persons
interested in such right shall, for the purposes of this
section, be deemed to claim under the persons so
litigating.
Explanation VII.-The provisions of this section shall
apply to a proceeding for the execution of a decree and
reference in this section to any suit, issue or former
suit shall be construed as references, respectively, to
proceedings for the execution of the decree, question
arising in such proceeding and a former proceeding for
the execution of that decree.
Explanation VIII.-An issue heard and finally decided
by a Court of limited jurisdiction, competent to decide
such issue, shall operate as res judicata in as
subsequent suit, notwithstanding that such Court of
limited jurisdiction was not competent to try such
subsequent suit or the suit in which such issue has
been subsequently raised.
9. The issue as to whether will dated 22.08.1994 left by deceased
Neerta Devi was the last and final will of the said deceased was directly
and substantially in issue in Probate Case No.318/2006 between the
same parties inasmuch as, the appellants are also claiming to be one of
the legal heirs of the deceased. The objection taken by them that the
deceased Neerta Devi had, in fact, left another will dated 02.04.1998
was not substantiated by the appellant in that case. He also failed to
prove that will even in the petition filed by him being Probate Case No.
FAO 448/2010 Page 5 of 6
319/2006. Thus, the judgment delivered by the ADJ in Probate Case
NO. 318/2006 attained finality and the findings returned in that case,
constitutes res judicata with respect to the claim of the appellant that
the will dated 22.08.1994 was not the last and final will left by Neerta
Devi. The very fact that the claim lodged by the appellant on the basis
of the alleged will dated 02.04.1998 being not substantiated by the
appellant in those proceedings or in any independent proceedings
brings an end to the litigation between the parties. After upholding the
order of the ADJ by this Court in FAO No. 276/2010, the appellant is
not entitled to rake up the issue again. Thus, the appeal filed by the
appellant is dismissed being barred by res judicata at this stage itself.
The order dated 05.08.2010 is therefore upheld. No costs.
MOOL CHAND GARG,J
DECEMBER 13, 2010
‘sg/dc’
FAO 448/2010 Page 6 of 6