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2008 DIGILAW 232 (HP)

Vijay Sharma @ Vijay v. Lt. Col. L. H. M. Gregory

2008-05-15

SURINDER SINGH, SURJIT SINGH

body2008
JUDGMENT Surjit Singh, J. 1. In this appeal, under Section 299 of the Indian Succession Act read with Order 43, C.P.C., appellants Ms. Vijay Sharma alias Vijay and Padam Chand Joshi, have challenged the order dated 14-1-1994 of learned Single Judge whereby in Probate Case No. 1 of 1986, Letters of Administration, with the Will annexed thereto, has been issued in favour of respondent No. 1 Lt. Col. L.H.M. Gregory, through his attorney Shri Kamaljit Singh Grewal. Appellants were not party to the probate proceedings in which the aforesaid Letters of Administration has been granted. Their contention is that they are the legal representatives of one of the respondents in the Probate Case, namely, Ms. Doris Isolene Heysham, who died during the pendency of the said probate case, but the petitioner took no steps to bring them on record, inspire of the fact that the said deceased respondent executed a registered Will in their (appellants) favour on 14-10-1993. 2. First the facts which have led to the filing of this appeal may be noticed. There lived a lady by the name of Enid Alice Lisbey at Shimla. She had a house and some vacant site attached to that house in Shimla Town. She did not have any issue. She died on 17-10-1980. After her death, respondent Lt. Col. L.H.M. Gregory, hereinafter referred to as petitioner, filed a petition through his general attorney Shri Kamaljit Singh Grewal, under Section 241 of the Indian Succession Act, for grant of Letters of Administration, claiming that Ms. Lisbey had executed a Will in his favour on 22-6-1978. Three ladies named Ms. Irene Heysham, Ms. Doris Heysham and Smt. Sundri Devi, besides General Public, were impleaded as respondents. Ms. Irene Heysham and Ms. Doris Heysham denied the execution of Will by Ms. Libsey in favour of the petitioner and instead, set up a Will purporting to have been executed by Ms. Libsey in their favour some time in the year 1974. They also claimed that they were the legal heirs of deceased Ms. Lisbey. Smt. Sundri Devi claimed that a Will had been executed in respect of a portion of the property, consisting of out houses of the main building, on 5th October, 1980 in her favour. 3. During the pendency of the petition, all the three above named ladies died. Smt. Sundri Devi was the first to die. Lisbey. Smt. Sundri Devi claimed that a Will had been executed in respect of a portion of the property, consisting of out houses of the main building, on 5th October, 1980 in her favour. 3. During the pendency of the petition, all the three above named ladies died. Smt. Sundri Devi was the first to die. Her legal representatives Sant Ram, Mansha Ram, Sita Ram and Jagdish Chand were brought on record. Thereafter, Irene Heysham died. It was stated that her estate was represented by respondent Doris Heysham. So her name was struck off the record. Trial and the hearing of the matter concluded on 7-12-1993 (wrongly recorded as 7-11-1993 in the order sheet of the record of learned Single Judge) and the judgment was reserved. After the judgment was reserved, an application dated 3-1-1994 was filed on 6-1-1994 wherein it was stated that Ms. Doris Heysham had died on 9-12-1993 and she having executed a Will, in favour of the present appellants, they were her legal representatives and hence entitled to be brought on record. Matter was taken up by the learned Single Judge on 14-1-1994 on which date, the impugned order for grant of Letters of Administration in favour of petitioner Lt. Col. L.H.M. Gregory was passed and the aforesaid application of the appellants for being brought on record was dismissed, as their Counsel Shri G.D. Verma, Advocate, made a statement that the appellants had not contacted him. 4. We have heard the learned Counsel for the appellants as also the learned Counsel representing the respondent-petitioner and gone through the evidence. 5. It is not in dispute that the hearing in the probate matter before the learned Single Judge concluded on 7-12-1993 and on that date, the judgment was reserved. According to appellants' own version, Doris Heysham, one of the respondents in the aforesaid probate matter, died on 9th December, 1993. That means the above named lady, who was respondent in the proceedings, was alive on the date when the trial and hearing in the probate matter concluded. According to appellants' own version, Doris Heysham, one of the respondents in the aforesaid probate matter, died on 9th December, 1993. That means the above named lady, who was respondent in the proceedings, was alive on the date when the trial and hearing in the probate matter concluded. Rule 6 of Order 22 of the Code of Civil Procedure saves from abatement the matter where the death of either party takes place after the conclusion of the hearing and before the pronouncement of the judgment, even if the legal representatives of the party dying after the conclusion of the hearing and before the pronouncement of the judgment, are not brought on record. In view of the aforesaid provision of law, the contention raised by the Counsel for the appellants that on account of the appellants having not been brought on record, after the death of Doris Heysham, the probate petition abated, cannot be accepted. For the same very reason his submission for remand of the matter to learned Single Judge with a direction to bring on record the appellants as respondents in place of deceased Doris Heysham and to dispose of the probate matter afresh after affording them opportunity to lead evidence and to oppose the claim of the petitioner for grant of Letters of Administration based upon Will dated 22-6-1978, is also rejected. 6. Learned Counsel then argued that the appellants being legal representatives of Doris Heysham, she having executed a Will in their favour on 14-10-1993, had the right to appeal against the order of learned Single Judge, granting Letters of Administration in favour of the petitioner and to challenge the finding of learned Single Judge with regard to the validity and genuineness of the Will set up by the petitioner. We permitted him to address arguments assailing the finding of learned Single Judge to the aforesaid effect. He could not point out any error or defect in the evidence, led by the petitioner in support of the validity of the Will set-up by him. 7. Petitioner examined both the attesting witnesses of the Will to prove its execution. The attesting witnesses of the Will, Exhibit-P13, are PW5 Kamaljit Singh Grewal and PW6 Brother O'Sulliven. Both the witnesses testified that the Will had been written by Ms. 7. Petitioner examined both the attesting witnesses of the Will to prove its execution. The attesting witnesses of the Will, Exhibit-P13, are PW5 Kamaljit Singh Grewal and PW6 Brother O'Sulliven. Both the witnesses testified that the Will had been written by Ms. Lisbey herself in her own hand and she signed it in their presence and that thereafter, they put their own signatures as token of attestation of the Will. Both the witnesses are respectable persons. Shri Kamaljit Singh Grewal (PW5), was a practicing lawyer in the High Court of Punjab & Haryana at the time when Ms. Lisbey executed the Will. He was a District and Sessions Judge at the time when he stepped into the witness-box and/testified about the execution of the Will by Ms. Lisbey. The other witness was the Principal of St. Edward's School, which is one of the renowned institutions not only of Shimla town but northern India. There does not appear to be any reason to dis-believe the testimony of these two witnesses. Both of them categorically stated that the testatrix though of frail physique, at the time of execution of the Will, possessed a sound disposing mind. Both of them stated that mentally she was fully alert. The fact that the Will is written in testatrix' own hand itself proves that she was in full senses and possessed a sound disposing mind at the time of execution of the Will. Therefore, we find no fault in the finding of learned Single Judge that the execution and the validity of the Will set-up by the petitioner, are duly proved. No other point was urged before us by the learned Counsel for the appellants. In view of the above said position, the appeal is dismissed.