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I
A-8
% 05.08.2011
Present : Mr.Manu Nayar, Advocate for the petitioner.
Mr.A.K. Trivedi, Advocate for respondent No. 1.
Ms. Malvika Sharma, Advocate for respondents No. 3 & 4.
+CM (M) No.776/2010 & CM No. 10655/2010
*
The order impugned before this Court is the order dated
23.03.2010 vide which the apphcation filed under Section 24 of the
Code of Civil Procedure by the petitioner (that the Civil Suit NO. 195/2002 which was a suit for partition be transferred where the probate petition was pending i.e. to the Court of District Judge) had been dismissed.
Record shows that the present petitioner had filed a probate petition seeking probate of a Will of his deceased father Shri Ram
Sharma dated 06.04.1995. The respondent who is the brother of the petitioner had filed a suit for partition; he has placed reliance upon a
Will of his deceased father Shri Ram Sharma dated 10.01.1995. It is not in dispute that in the partition suit a specific issue qua the Will dated 06.04.1995 had been framed; this issue reads inter-alia as under:-
"Whether the Will dated 06.04.1995 propounded by the petitioner is the duly executed last and final Will of the deceased Shri Ram Sharma in a sound disposing mind?"
Learned counsel for the petitioner has placed rehance upon a
I
A-8
% 05.08.2011
Present : Mr.Manu Nayar, Advocate for the petitioner.
Mr.A.K. Trivedi, Advocate for respondent No. 1.
Ms. Malvika Sharma, Advocate for respondents No. 3 & 4.
+CM (M) No.776/2010 & CM No. 10655/2010
*
The order impugned before this Court is the order dated
23.03.2010 vide which the apphcation filed under Section 24 of the
Code of Civil Procedure by the petitioner (that the Civil Suit NO. 195/2002 which was a suit for partition be transferred where the probate petition was pending i.e. to the Court of District Judge) had been dismissed.
Record shows that the present petitioner had filed a probate petition seeking probate of a Will of his deceased father Shri Ram
Sharma dated 06.04.1995. The respondent who is the brother of the petitioner had filed a suit for partition; he has placed reliance upon a
Will of his deceased father Shri Ram Sharma dated 10.01.1995. It is not in dispute that in the partition suit a specific issue qua the Will dated 06.04.1995 had been framed; this issue reads inter-alia as under:-
"Whether the Will dated 06.04.1995 propounded by the petitioner is the duly executed last and final Will of the deceased Shri Ram Sharma in a sound disposing mind?"
Learned counsel for the petitioner has placed rehance upon a
JUDGMENT
of the Apex Court reported in (2005) 12 SCC 503 Balbir
2011:DHC:8816 jr
Singh Wasu Vs. Lakhbir Singh & others to support his submission that in this case also where the probate petition and a civil suit was pending inter-se between the legal heirs of the deceased, the
Supreme Court had found it fit to transfer the probate petition to the
Court of the District Judge for trial together.
The purpose of Section 24 of the Code is to avoid multiplicity of litigations and to ensure that the proceedings which raise common issue where common evidence is likely to be led, in the interest of justice as also in the interest of parties they be tried by the same
Court.
In view of the aforenoted position. Civil Suit No. 195/2002
(which is a suit for partition pending before the Civil Judge) be transferred to the court of District Judge (North), Tis Hazari (where the probate petition No. 25/2009 is pending). The respondent is at liberty to move to the concerned court for appropriate directions for recalling of witnesses, if required, as contention before this Court is that attesting witness of the petitioner who was cross-examined in the probate petition was only qua the dispute regarding the veracity and validity of the Will. The trail court shall deal with this apphcation as per its discretion.
With these directions, the petition disposed of.
INDERMEET KAUR, J.
AUGUST 05, 2011 a
2011:DHC:8816
2011:DHC:8816 jr
Singh Wasu Vs. Lakhbir Singh & others to support his submission that in this case also where the probate petition and a civil suit was pending inter-se between the legal heirs of the deceased, the
Supreme Court had found it fit to transfer the probate petition to the
Court of the District Judge for trial together.
The purpose of Section 24 of the Code is to avoid multiplicity of litigations and to ensure that the proceedings which raise common issue where common evidence is likely to be led, in the interest of justice as also in the interest of parties they be tried by the same
Court.
In view of the aforenoted position. Civil Suit No. 195/2002
(which is a suit for partition pending before the Civil Judge) be transferred to the court of District Judge (North), Tis Hazari (where the probate petition No. 25/2009 is pending). The respondent is at liberty to move to the concerned court for appropriate directions for recalling of witnesses, if required, as contention before this Court is that attesting witness of the petitioner who was cross-examined in the probate petition was only qua the dispute regarding the veracity and validity of the Will. The trail court shall deal with this apphcation as per its discretion.
With these directions, the petition disposed of.
INDERMEET KAUR, J.
AUGUST 05, 2011 a
2011:DHC:8816