Sh. Harvinder Singh and Another vs Smt. Ranjit Kaur (Deceased) through her Legal Heirs and Others

Valmiki J Mehta, J.

C.M. Nos. 4022/09, 4023/09 and 4024/09 in RFA No. 250/1994

By these applications, legal heirs of deceased Respondent No. 1 and 2, namely, Smt. Ranjit Kaur and Sh. Jag Mohan Singh are sought to be brought on record and delay is sought to be condoned. There is no opposition to these applications. These applications are therefore disposed of as allowed. Amended memo of parties is taken on record.

C.M. No. 4021/09 in RFA No. 250/1994

This is an application for restoration of the appeal which was dismissed for default on 28.11.2008. There is no opposition to this application and the same is accordingly allowed.

RFA No. 250/1994

The challenge by means of the present first appeal u/s 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned exparte judgment and decree dated 6.4.1994 whereby the suit of the Respondent No. 1/Plaintiff/daughter for declaration and injunction and partition of the properties of her father late Sh. Beant Singh was decreed. The immovable property is 29/4, Double Storey, Ashok Nagar, New Delhi. The daughters, including the Plaintiff, have also been bequeathed bank deposits in terms of the Will of Beant Singh

The Appellants were Defendant Nos. 1 and 5 in the suit. They filed a joint written statement alongwith Defendant No. 4 Sardar Amarjit Singh/Respondent No. 4. They, however, thereafter failed to appear and were proceeded exparte.

The basis of the suit of the Respondent No. 1/Plaintiff/daughter was the registered Will dated 5.2.1990 of Sh. Beant Singh and as per the Will the Plaintiff/Respondent No. 1/daughter alongwith the other daughter Kumari Bhupinder Kaur/Defendant No. 6/Respondent No. 5 got one room and one store in the property bearing No. 29/4 double storey Ashok Nagar, New Delhi besides the amount lying in the Bank of late Beant Singh. This Will has been proved as Ex.PW2/1 by the witness Sh. Darshan Singh. Sh. Darshan Singh is the first witness to the registered Will dated 5.2.1990 of late Sh. Beant Singh/father. The trial Court has therefore decreed the suit and granted the Respondent No. 1/Plaintiff the rights in terms of the Will dated 5.2.1990 (Ex.PW2/1).

Before this Court, learned Counsel for the Appellants raised three main arguments. The first argument was that the Civil Court was not entitled to pronounce upon the validity of the Will and this could only be done by a Court entitled to grant Probate under the Indian Succession Act, 1925. The second argument was that the exparte decree against them should be set aside because the Appellants were misled by the Defendant No. 4/Respondent No. 4 that he would contest the case on their behalf and therefore they did not appear. The third argument is that even if the decree was an exparte decree, the trial Court should have considered the defence of the Appellant in the written statement filed.

I am unable to agree with any of the contentions as raised by the learned Counsel for the Appellants. So far as the first argument is concerned I may state that in the State of Delhi, probate of a Will is not compulsory. Probate of Will is only compulsory in the cities of Bombay, Calcutta and Madras or for properties situated in the cities of Bombay, Madras and Calcutta though the Will may be executed outside the three cities. This is a well settled law and there are many judgments of this Court which lay down so and which arises from a reading of Sections 57 and 213 of the Indian Succession Act, 1925. Two of these judgments are Pradeep Bhalla Vs. Sangeeta and Others, and Sanjay Gupta and Another Vs. Ved Kanti Gupta and Another, . The argument raised on behalf of the Appellants is therefore not correct that the Civil Court could not have adjudicated upon the validity of the Will of Beant Singh.

The second argument raised on behalf of the Appellants is that the Appellants were misled and therefore they did not appear resulting in passing of the exparte decree. I may note that in entire grounds of appeal, there is not even a single ground raised that the Appellants had good cause for not appearing on the dates before passing of the exparte decree. Also further, a reference to the prayer clause shows that it is not prayed that the order by which the Appellants were proceeded exparte be set aside. In any case, before filing of the appeal in May, 1994, the Appellants in April, 1994 had already moved an application for setting aside the exparte judgment and decree under Order 9 Rule 13 CPC, and which application as per the statement of the counsel for the Appellants has been adjourned sine die. Clearly, therefore, once the Appellants had filed an application under Order 9 Rule 13 CPC, they were bound to get the same adjudicated in accordance with law and on that basis it cannot be contended that the same issues should again be decided in this appeal more so when no grounds have been specifically raised for the same and no relief has also been claimed in the appeal. The Appellant should not be allowed the benefit of delaying the disposal of its applications under Order 9 Rule 13 CPC pending since over 16 years. This contention is therefore rejected.

The third argument of the Appellant was that the Court should look into the written statement of a Defendant even if the Defendant is exparte before decreeing the suit. I do not think that the law is that the Defendants are entitled to remain exparte and yet the case must be contested on their behalf by a Court. In civil proceedings, if a person seeks his rights to be adjudicated it is he who has to appear in the Court and contest his case and lead evidence thereon. If he does not chose to do so, it does not lie in the mouth of such a party to contend that the Court should look into the written statement filed by the Defendants who are exparte and on that basis the suit should have been decided/dismissed. Of Course, the Court in an exparte case is bound to see that the Plaintiff has proved his/her case and in the present case this has been done because the Court has accepted the evidence by which the Will of late Sh. Beant Singh was proved as Ex.PW2/1. No fault therefore can be found with the judgment of the trial Court in this behalf.

In view of the above, the appeal is clearly misconceived. The suit was rightly decreed and the effect of which is to give effect to the Will of late Sardar Beant Singh in favour of the Plaintiff/Respondent No. 1 who was a daughter of late Sardar Beant Singh.

The appeal is therefore dismissed, leaving the parties to bear their own costs.

Interim orders are vacated. Trial Court record be sent back.