C.R.No.8265 of 2010 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.8265 of 2010 Date of decision: 14.1.2011 Mrs. Bani Gupta and another ….Petitioners Vs. Ms. Manjira Datta and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. R.K. Battas, Senior Advocate with Ms. Geeta Sharma, Advocate for the petitioners. Jaswant Singh, J In the instant revision petition filed under Article 227 of the Constitution, defendant Nos.3 & 4-petitioners have prayed for setting aside the impugned order dated 4.12.2010 (P.1) passed by the learned Additional District Judge, Gurgaon whereby their application U/o 8 Rule 9 CPC for filing additional written statement dated 6.4.2009 (P.6) in probate proceedings has been dismissed. Respondent No.1-Ms. Manjira Datta filed a petition dated 16.5.2008 (P.3) under Section 276 of the Indian Succession Act, 1925 (for short “Act of 1925”) for grant of probate of will dated 1.6.2003 of late Ms. Jyoti Gupta, now deceased in favour of Ms. Manjira Datta upto the extent of half share regarding property bearing No.113, Block-E, Sushant Lok, Phase- E, Gurgaon, Haryana. Said Jyoti Gupta is unmarried daughter of petitioner No.1 and sister of petitioner No.2. Initially, only State of Haryana through C.R.No.8265 of 2010 #2# the Collector, Gurgaon was impleaded as respondent in the probate petition and the present petitioners were not impleaded as party in the same but later on they were impleaded so as defendant Nos.3 & 4 being necessary and proper party. Petitioners filed their written statement on 7.2.2009 (P.4) inter alia denying the execution of the will dated 1.6.2003 executed by said Jyoti Gupta and claimed to be her legal heirs. It was further submitted that Ms. Jyoti Gupta was suffering from illness and the petitioners provided her medical treatment and, therefore, disputed the execution and validity of the will in question. During the pendency of the probate proceedings, the petitioners moved an application (P.5) under Order 6 Rule 17 CPC seeking amendment in the written statement and annexed amended written statement dated 6.4.2009 (P.6) with the instant petition but the same was dismissed vide order dated 21.7.2009 (P.7) and against that order, admittedly a petition bearing Civil Revision No.6481 of 2009 was filed, which was dismissed as withdrawn. Thereafter, petitioners filed another application dated 11.8.2009 (P.8) for withdrawal of application (P.5) U/o 6 Rule 17 CPC and recalling order dated 21.7.2009 (P.7) and annexed copy of additional written statement dated 11.8.2009 (P.9) by way of objections to the probate application under Order 8 Rule 9 CPC . Respondent No.1 opposed the abovesaid application and filed her reply dated 12.8.2009 (P.10). After hearing both the parties, learned Additional District Judge has dismissed the said application vide order dated 25.8.2009 (P.11). Aggrieved against order dated 25.8.2009 (P.11), petitioner filed Civil Revision No.5513 of 2009 and the same was disposed of by this Court vide order dated 6.9.2010 (P.12) and the case was remanded back to the C.R.No.8265 of 2010 #3# learned Additional District Judge for adjudicating upon the application filed by the petitioner afresh according to law and in these circumstances, the impugned order has been passed while dismissing the application U/o 8 Rule 9 CPC. Hence, the present petition. Heard learned counsel for the petitioners and perused the paper book. Learned counsel for the petitioners submits that the deceased Jyoti was an unmarried daughter of petitioner No.1 and real sister of petitioner No.2, who died on 13.7.2007 and respondent No.1 is having no blood relation either with the petitioners or with the deceased Jyoti. It is further contended that the learned Additional District Judge has gravely erred while passing the impugned order dated 4.12.2010 (P.1) resulting into grave miscarriage of justice. It is also contended that petitioners have made out a good case to justify their claim for placing on record the additional written statement but the same has not been appreciated by the learned Additional District Judge. Learned counsel further contends that the petitioners have not taken any additional pleas except pleading additional facts in continuation of earlier pleas taken by them in their written statement to substantiate that the deceased Jyoti Gupta was not in good health at the time of execution of the will dated 1.6.2003 and the same has been manipulated by respondent No.1 just to deprive the petitioners of their lawful rights being legal heirs. Vide order dated 6.9.2010 (P.12), it has been noticed by this Court that while passing the order dated 25.8.2009 (P.11) learned Additional District Judge has not recorded any independent finding as to whether any case for filing additional written statement was made out or not C.R.No.8265 of 2010 #4# and on this count, the matter was remitted back for fresh adjudication. A perusal of paragraph No.3 of the probate petition (P.3) reveals that the property in will was purchased jointly by respondent No.1 and late Jyoti from M/s Ansal Buildwell Ltd vide registered sale deed dated 17.6.1998 and the petitioners filed their reply to the probate petition and contents of paragraph No.3 of their written statement (P.4) reveals that they have admitted the execution of sale deed, which reads thus: “Contents of para No.3 of the petition are correct to this extent that the deceased Ms. Jyoti Gupta had purchased the property jointly.” After filing of the written statement by the petitioners, issues were framed by the learned Probate Court and the case was fixed for evidence. Paragraphs 3,4,5 and 8 of the proposed additional written statement/objections (P.9) filed under Order 8 Rule 9 CPC clearly show that altogether a new case has been set up by the petitioners and these pleas were never taken in their written statement dated 7.2.2009 (P.4) and the same are reproduced as under: “3. That the whole picture shows that Manjira Datta could eliminate Jyoti Gupta (deceased) from this world and thereby she according to the disability act is not entitled to succeed by way of testamentary succession. 4. That Jyoti Gupta (deceased) was not only in spinster but she was in menopausal syndrome and as such she developed senility and she was even not capable to understand where and how she was putting the signature on paper and when she was incapable to the consequence. Hence, the WILL is a fake and fictitious one. 5. That in the WILL, the doctor/physician is not an attesting witness to certify her mental state and hence, casts, cloud about the document. 8. That the property which was purchased by Jyoti Gupta C.R.No.8265 of 2010 #5# (Deceased) is governed by the Dayabhaga School of Hindu Law and is her stridhan and on her death, her property is bound to go to her female heirs i.e Opposite Parties No.3 and 4.” As a sequel to the aforesaid discussion and going through the case file, this Court is of the view that the learned Additional District Judge has rightly recorded that the said Jyoti died on 13.11.2007 and written statement was filed by the petitioners on 7.2.2009 i.e after a gap of almost one and half years and it cannot be presumed that the applicants were under shock and unable to take all these pleas in the original written statement, which is sought to be raised by way of proposed additional written statement/objections under Order 8 Rule 9 CPC. Accordingly, I find no illegality or perversity in the impugned order dated 4.12.2010 (P.1) passed by the learned Additional District Judge, Gurgaon warranting any interference under Article 227 of the Constitution. Dismissed. January 14, 2011 ( JASWANT SINGH ) manoj JUDGE