$-35 IN THE HIGH COURT OF DELHI AT NEW DELHI + TR.P.(C) 58/2011 ANJALIDPIAWAN Through Petitioner Mr. M.L. Mahajan and Mr. Gaurav Mahajan, Advs. versus % ANIL KUMAR LUMBA & ORS Respondents Through Mr. Rishi Sood, Adv. for resp. no.2 CORAM: HON'BLE MS. JUSTICE GITA MITTAL ORDER 23.09.2011 1. Notice. Learned counselTor the respondent no. 2 accepts notice and submits that no reply is necessary. 2. It is submitted that CS(OS) No. 2080/2010 titled Anjali Dhawan vs. Anil Kumar Lumba and Ors. has been filed by the plaintiffs against the defendants for partition and for permanent injunction and to pass a decree of 1/3 share in respect of property measuring 127 square yard bearing no. 45- 46, Double Storey, New Rajinder Nagar, New Delhi-110060 on 4 October, 2010 and is pending before this court. 3. The plaintiff has contended that they are entitled to the relief in the suit for the reason that she succeeds to the property/assets, partition whereof Digitally Signed By:AMULYA Signature Not Verified -2- is sought, on account of the intestate demise of their father. 1 he defendant 110.2 has filed a written statement in the case and has challenged the entitlement to the relief by the plaintiff on the ground that Late Shii Tilak Raj Lumba has executed the Will dated 20^'^ October, 1985 in his favour. 4. The defendant no. 2 has thereafter filed probate petition being Probate Case No. 10/2011 entitled Ai-un Lumba Vs. State and Ors. which is pending before the court of Shri Rajender Kumar Shastri, ADJ - 06 (Central), Tis Hazari, Delhi. 5. The present plaintiff has filed objeetions with regard to the execution and validity of the Will dated 20"' October, 1985. The defendant no. 1 has ^ also objected to the execution and validity of the said Will. 6. The present petition seeks transfer of the probate petition being Probate Case No. 10/2011 titled Arun Lumba Vs. State and Ors. for adjudication with the suit. 7. It cannot be denied that so far as the exeeution and validity of the Will dated 20"' October, 1985 is concerned, the same would be an issue in the suit filed by the present petitioner as well. 8. The adjudication in the probate petition is in the nature of a judgment in rem. The parties are same in both the cases. -3- 9. Interest of justice merits that two matters be consolidated together for the purpose of trial. Appropriate orders with regard to adjudication could be passed after consideration of the evidence in both the cases. 10. The transfer of the cases is essential for reasons of expediency as well as to avoid conflict of decision. The same would also facilitate the parties who would be required to appear before one court only. 11. No prejudice results to Shri Anil Kumar Lumba who is stated to be the brother of the parties. 12. In view of the above, it is directed as follows (i) Probate Case No. 10/2011 shall be transferred from the court of Shri Rajender Kumar Shastri, ADJ — 06 (Central), lis Hazari, Delhi, which is stated to be now listed on 3'"'' November. 2011, to this court. (ii) The Probate Case No. 10/2011 shall stand consolidated with CS(OS) No. 2080/2010 titled Anjali Dhawan vs. Anil Kumar Lumba and Ors. for the purpose of trial. (ill) Upon receipt of the record of the case, the probate case shall be registered by the registry and place with CS(OS) No. 2080/2010 on 2^ November. 2011 when the suit is listed for admission/denial of documents - before the Joint Registrar. (5 -4 (iv) Inasmuch as the plaintiff and defendant no. 2 are represented in this court, notice of the probate petition need not be issued to them. (v) A copy of the present order shall be sent to Shri Anil Kumai Lumba, defendant no. 1 in CS(OS) No. 2080/2010 who is stated to be appearing in person. 13. This petition is allowed in the above terms. GIxiMITTAJ^r^ SEPTEMBER 23, 2011 Sd