Dismissed

Nitin Wig v. Chander Parkash Mehra & Ors.

Delhi HC3 Oct 2016C.R.P./115/2016

Case brief

AI extract

What is this about?

The court dismissed the petitioner's petition filed under Order VII Rule 11 CPC challenging the maintainability of a rival probate petition. The High Court held that the question of which will is the last will and testament cannot be adjudicated on an application under Order VII Rule 11 CPC as the matter involves evidence yet to be led during the trial of the probate petitions by the same court.

What did the court decide?

Application under Order VII Rule 11 CPC was found without merit and the petition seeking to impugn the trial court's order was dismissed.

Nitin Wig Vs Chander Parkash Mehra & Ors. — Property and Title | Delhi HC (2016)

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$~A-2

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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- C.R.P. 115/2016 & CM Nos.28044-28045/2016

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NITIN WIG ..... Petitioner Through Mr.P.P.Ahuja, Adv.

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versus

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CHANDER PARKASH MEHRA & ORS ..... Respondent Through

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CORAM: HON'BLE MR. JUSTICE JAYANT NATH

O R D E R

03.10.2016

By the present petition the petitioner seeks to impugn the order dated 1.4.2016 by which application filed by the petitioner under Order VII Rule 11 CPC has been dismissed. The background facts are that the petitioner has filed a petition for probate of the Will of late Shri Suraj Prakash Mehra who is stated to have died on 16.12.2006 regarding the Will and Testament dated 13.6.1990. It appears that the uncle of the petitioner Shri Chander Prakash Mehra/respondent No.1 had also filed a probate petition in respect of alleged Will dated 15.3.1977 said to have been executed by Shri Suraj Prakash Mehra. The bone of contention appears to be that Shri Suraj prakash Mehra has died without leaving behind any natural heir of Schedule I.

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The stand of the petitioner in the application under Order VII Rule 11 CPC was that in terms of Section 276 (1) of the Indian succession Act a probate can be granted only for a writing which is the last will and testament. He submits that the Will which is relied upon by the petitioner,

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CRP.115/2016

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Page 1

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namely, Will dated 13.6.1990 is the last will and hence probate petition filed by Shri Chander Prakash Mehra respondent No.1 is not maintainable.

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The trial court vide judgment noted the principles of Order VII Rule 11 CPC and also noted that evidence is going on in the matters and hence dismissed the application holding that Order VII Rule 11 CPC would not apply.

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In my opinion, there is no infirmity in the impugned order. The fact of the matter is that the two probate petitions are being tried by the same court. Obviously the question would be as to which was the last Will and Testament of Shri Suraj Prakash Mehra, one propounded by the petitioner or the one propounded by the respondent. This issue cannot be adjudicated upon in an application under Order VII Rule 11 CPC.

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The petition is without merits and is dismissed.

JAYANT NATH, J

OCTOBER 03, 2016

CRP.115/2016

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Nitin Wig v. Chander Parkash Mehra & Ors.

Case brief

What is this about?

What did the court decide?

Nitin Wig v. Chander Parkash Mehra & Ors.

Case brief

What is this about?

What did the court decide?

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