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2008 DIGILAW 1107 (DEL)

SUNIL GUPTA v. KIRAN GIRHOTRA

2008-11-28

SHIV NARAYAN DHINGRA

body2008
ORDER 1. These two petitions have been filed by the parties against each other. 2. Petitioner Mr. Sunil Gupta was impleaded on an application under Order 1 Rule 10, CPC as a party in suit No. 73/2003 and after being impieaded, he made an application under Order 7 Rule 11, CPC for dismissal of the suit which was rejected by the Court. 3. In nutshell the facts are that the respondent herein, who is plaintiff in Suit No. 73/2003, filed this suit seeking a declaration that Will dated 30th October, 1997, allegedly executed by late Sh. Harbhagwan, be declared as invalid, non-existent, forged and fabricated. 4. A probate petition filed by the plaintiff herself seeking probate of a Will, dated 9.9.1997 of late Sh. Harbhagwan, was pending before the Probate Court wherein petitioner Sunil Gupta was not allowed to be impleaded as a party despite his contest right up to Supreme Court. However, another Will dated 30th October, 1997, of deceased was brought to the notice of the Probate Court by the brother of the petitioner, who filed objections in the probate petition and he alleged that the Will dated 30th October, 1997 was the last Will of late Sh. Harbhagwan. 5. Probate Court is seized with the matter. It is directed that the Probate Court shall decide which of the two Wills is the genuine and the last Will. Since the Probate Court is seized with the matter, the civil suit filed by the plaintiff seeking cancellation and declaration in respect of the Will dated 30th October, 1997 will have to wait as the Probate Court has exclusive jurisdiction to determine the genuineness or otherwise of a Will. 6. I, therefore, consider that the trial Court instead of dismissing the application should have ordered staying of the suit. The suit No. 73/2004 pending before the learned ADJ is therefore stayed. The issue regarding petitioner being a necessary party to the suit may be agitated, if required, by the respondents, after decision of the Probate Court. With these directions, both these petitions are disposed of. Copy of the order be sent to both the Courts. Dasti. Petitions disposed of.