C. R. No. 4368 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 4368 of 2010 Date of Decision : July 16, 2010 Amarjit Singh Madan .... Petitioner Vs. Harleen Madan and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Amandeep Singh Manaise, Advocate for the petitioner. * * * L. N. MITTAL, J. (Oral) : Amarjit Singh Madan has filed the instant revision petition Article 227 of the Constitution of India assailing order dated 31.05.2010 (Annexure P-3), passed by learned Additional District Judge, Chandigarh, thereby dismissing the application (Annexure P-1) moved by the petitioner herein for framing of additional issue. Harleen Madan – respondent no.1 herein has filed a probate petition under Section 276 of Indian Succession Act, 1925 for grant of probate of Will dated 07.11.2001, allegedly executed by Harbans Kaur in favour of respondent no.1herein. The probate petition has been filed by respondent no.1 through her mother Parveen Madan as her General C. R. No. 4368 of 2010 2 Attorney. Petitioner herein, who is respondent no.3 in the probate petition, inter alia pleaded in the written statement that respondent no.1 herein is not mentally sound and was therefore, incompetent to execute the Power of Attorney and therefore, probate petition deserves to be dismissed on this ground. Petitioner herein moved application Annexure P-1 for framing of additional issue alleging that no issue has been framed on the aforesaid plea of the petitioner. Accordingly, petitioner sought framing of additional issue as to whether Harleen Madan is not mentally sound. The said application has been dismissed by the trial court by way of impugned order. Learned counsel for the petitioner vehemently contended that no specific issue has been framed on the aforesaid plea of petitioner taken in the written statement and therefore, additional issue is required to be framed on the said plea. The contention cannot be accepted for various reasons. Firstly, the petitioner herein has himself filed a separate probate petition against Harleen Madan – respondent no.1 herein and the said petition is also being tried along with the instant probate petition filed by respondent no.1 herein. The petitioner, in the probate petition filed by him, has not sued respondent no.1 Harleen Madan through any guardian. On the other hand, Harleen Madan is defending the said petition without being sued through some guardian. If Harleen Madan is of unsound mind, petitioner herein C. R. No. 4368 of 2010 3 should have sued Harleen Madan through some guardian. Secondly, perusal of the written statement filed by the petitioner herein (as shown by the counsel) reveals that preliminary objection no.1 has been raised by the petitioner in his written statement that the probate petition filed through Attorney is not maintainable as probate petitioner i.e. respondent no.1 is not mentally sound and is not competent to execute Power of Attorney. Issue no.4 has been specifically framed on this plea which is as under :- “Whether the present petition is not maintainable in the present form ? OPR-3” This issue has been framed on preliminary objection no.1 raised by petitioner herein in written statement, which relates to the plea that Harleen Madan is not of sound mind and could not, therefore, execute Power of Attorney. Thirdly, Harleen Madan has filed the probate petition through her mother as Attorney. Even assuming, for the sake of argument, that Harleen Madan is of unsound mind, the probate petition on her behalf could legally be filed through her mother as her next friend. Consequently, probate petition filed by Harleen Madan through her mother as her Attorney, can also be treated as probate petition filed by Harleen Madan through her mother as next friend, in case Harleen Madan is assumed to be of unsound mind. Consequently, petitioner herein is not going to suffer any prejudice in his defence in the probate petition. Fourthly, issues in the case were framed on 07.06.2005. Both the parties have already led their C. R. No. 4368 of 2010 4 evidence. Application Annexure P-1 for framing of additional issue is dated 11.05.2010 and the same has been moved after both the parties have concluded their evidence. For this reason also, the application moved by the petitioner herein has been moved with mala fide intention and oblique motive and cannot be allowed. Fifthly, the trial court has observed that the plea of Harleen Madan being of unsound mind is covered by issue no.4 and would be dealt by the trial court accordingly under the said issue. For the reasons recorded herein above, I find no illegality in the impugned order of the trial court. The revision petition is completely misconceived and devoid of merit. Application Annexure P-1 moved by the petitioner herein in the trial court is result of mala fide intention and oblique motive and is completely misconceived and without substance. The revision petition is accordingly dismissed in limine. July 16, 2010 ( L. N. MITTAL ) monika JUDGE