Probate No. 2 of 1974 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Probate No. 2 of 1974 Date of Decision: April 07 , 2010 Shri Kailash Chand Mayor (since deceased) through his legal heirs ......... Petitioner Versus General Public and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Deepak Thapar, Advocate for the petitioner. Mr.Ravi Kapur, Advocate for respondent No.2. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This order shall dispose of probate No.2 of 1974 filed by the applicant claiming that his father Late Lala Bal Mukand had executed Will dated 05.06.1971 and consequently praying for Letter of Administration thereof. In written statement the execution of the Will was denied on various grounds including forgery and existence of suspicious circumstances. It was not disputed that with respect to the same Will a Civil Suit No.519 of 1973 was filed before Delhi High Court. On 19.12.1977 the following order was passed:- “Mr.Thapar has not filed the reply and says that it is not necessary to file one. It is admitted by the parties that the will Probate No. 2 of 1974 2 in dispute was challenged in the Delhi High Court and was upheld by that court. It is further stated that an appeal (R.F.A. No. 31 of 1976) against the decree of the learned Single Juge is pending in that Court. An objection has been taken by Mr. Gujral in the caveat that the proceedings in the present case are liable to be stayed under section 10 of the Code of Civil Procedure. Mr.K.S.Thapar, learned counsel for the petitioner, concedes that the proceedings are liable to be stayed as the matter will operate as res judicata. It is not disputed by Mr. Gujral that the above said objection has been taken by him under section 10 of the Code of Civil Procedure though it is not so stated there. In view of the concession of Mr.Thapar, the proceedings are stayed till the decision of the appeal in Delhi High court.” Thereafter also on various dates the matter was adjourned to await the decision of Regular First Appeal as well as the decision of the Special Leave Petition. Today learned counsel for the appellant has placed on record judgment Ex.P1 dated 25.7.1976 passed by the Delhi High Court in the above mentioned Civil Suit No.519 of 1973 upholding the contention of the petitioner(plaintiff) that a valid will dated 5.6.1971 as executed by Late Lala Bal Mukand. He has also placed on record copy of judgment dated 31.8.2001 as Ex.P3 whereby two RFAs bearing No. 31 of 1976 and 37 of 1976 were decided. By this common judgment the appeal No.31 filed by the respondent against P-1 was dismissed and it was affirmed that the will was validly executed by Late Lala Bal Mukand; while RFA N.37 filed by the petitioner contending that none of the properties was HUF property, was accepted. Learned counsel has also placed on record copy of order dated 5.8.2002 of the Hon'ble Supreme Court as Ex.P4. By this order SLP No. 1293 of 2002 arising out of RFA No. 31 of 1976 was dismissed. Thus, up to the Hon'ble Supreme Court it was held that the will had been validly Probate No. 2 of 1974 3 executed by Late Lala Bal Mukand. However, in SLP No.1294 of 2002/CA No. 588/2002 filed by the respondent against the decision of the Hon'ble Delhi High Court holding that none of the property was HUF property, leave was granted. In view of the conceded position which had been brought out in the order dated 12.12.1977 the finding on the Will operates as res judicata as far as this Court is concerned. Consequently this petition is allowed. The Will dated 5.6.1975 is declared to be the last valid will of Late Lala Bal Mukand and consequently Letter of Administration is directed to be issued to the petitioner. It is, however, made clear that this order would be subject to the decision of the Hon'ble Supreme Court in Civil Appeal No. 4588 of 2002. (AJAY TEWARI) JUDGE April 07, 2010 sunita