Lt. Col. (Retd) Gurvachan Singh and Another vs State

Manmohan Singh, J.—By this order I shall dispose of I.A No. 3411/2009 filed u/s 151 of the CPC, 1908 by the objectors (hereinafter referred to as respondents) in Probate No. 43/2006, which is pending adjudication in this Court.

It is submitted by the respondents that the probate petition has been filed by the petitioner after a gap of more than three years since the demise of Sh. K.G. Khosla who expired on May 7, 2003. Late Sh. K.G. Khosla and Late Smt. Kanwal Khosla left behind four Class 1 heirs, three daughters who are the objectors herein and one son, Sh. Deepak Khosla who is allegedly attempting to usurp all the movable and immovable properties of the late parents on the virtue of a fabricated will. To lay such claims and efforts of their brother fruitless, the objectors filed CS (OS) No. 1194/2003 for partition, declaration and injunction which suit as is pending for framing of issues and hearing of pending applications filed by the respondents herein is also pending adjudication in this Court.

Thereafter, the petitioner herein filed the present probate petition. The respondents submit that in CS (OS) 1194/2003, the petitioner''s defence is that Late Sh. K.G Khosla died intestate though in the probate case he is alleging that the will produced by him is the last and final will of Late Sh. K.G Khosla. It is in these circumstances that the respondents have filed the present application seeking a direction that CS (OS) 1194/2003 and probate No. 43/2006 be tried and heard together. In support of their prayer, the respondents state that several original documents filed by them in the suit are required for consideration in the probate. The respondents clarify that they are not praying for consolidation of the two cases but only for the same to be heard together as the issue in both is the same, i.e. whether Late Sh. K.G Khosla and Late Smt. Kanwal Khosla died intestate or not.

In their reply, the petitioners submit that the application of the respondents is only an attempt to delay the process of this Court as the probate case is at the stage of conclusion, since the attesting witnesses have been cross-examined and the next date for hearing is 01.05.2009 for recording of evidence of the remaining two witnesses. On the other hand, CS (OS) 1194/2003 is pending wherein even the preliminary issue of maintainability is as yet undecided as are several other interim applications.

The petitioner submits that the probate proceedings are appropriate proceedings for proof of the last will and testament of Late Sh. K.G Khosla and avers that proceedings in CS (OS) 1194/2003 should be stayed awaiting outcome of the present proceedings which will consider and decide the validity of the will.

The respondents have submitted a few decisions which look into the matter of trying probate proceedings and a related suit together. Two of these judgments and the relevant portions therein are reproduced hereinbelow:

(i) Balbir Singh Wasu v. Lakhbir Singh and Ors. (2005) 12 SCC 503

However, having regard to the fact that in this case a large number of issues would overlap, we are of the view that both the probate proceedings and the civil suit should be clubbed and heard together by the District Judge who would be competent to hear and dispose of both the civil suit as well as the probate proceedings.

(ii) Nirmala Devi Vs. Arun Kumar Gupta and Others,

Therefore, now remains the question whether the probate proceedings could be clubbed with the suit. Learned Counsel for Respondent 1 submitted that the civil suit is of the year 1987 and that despite various orders of the High Court, it has remained pending and the probate proceedings are initiated by the appellant in 1997 regarding the will of 1984. Be that as it may, the decision in the probate proceedings on the question of proof of the Will will have a direct impact on the suit. Only on this short ground and without expressing any opinion on the merits of the controversy between the parties, we request the learned District Judge, Gopalganj to make it convenient to dispose of the probate proceedings along with civil suit at his earliest convenience and preferably within a period of six months from the date of receipt of a copy of this order at its end.

I have gone through the submissions of both parties. The submission of the respondents is that both the matters, i.e. Probate No. 43/2006 and CS (OS) No. 1194/2003 are somewhat inter-related and inter-connected and would be taken up together at the time of final disposal of the suit. It has not been disputed by the respondents herein that cross-examination of two witnesses are over in the probate proceedings and that the suit is still at the stage of framing of issues which could not be framed due to filing of an application under Order VI Rule 17 CPC by the respondents herein itself. It would not be justified to pass an order for recording the evidence in probate matter or to try both cases together at the time of trial, but at the same time I feel that the proceedings in CS (OS) No. 1194/2003 are to be expedited, so that at the final stage both the matters can be clubbed and heard together.

With these observations, I.A. No. 3411/2009 is disposed of.

CS (OS) No. 1194/2003

Let the proceedings in CS (OS) No. 1194/2003 be expedited and the same be listed on 24th August, 2009 for framing of issues in the suit and disposal of pending application.

Probate No. 43/2006

List the probate proceedings on 15th October, 2009 before Joint Registrar for recording the evidence of remaining witnesses.