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2022 SCC OnLine Del 1626 : (2022) 290 DLT 763

In the High Court of Delhi at New Delhi

(BEFORE AMIT BANSAL, J.)

Hitesh Bhardwaj … Petitioner;

Versus
Govt. of NCT of Delhi and Another … Respondents.
Test. Cas. 4/2021 and I.A. 1038/2022 (u/S 151 CPC)
Decided on May 24, 2022
Advocates who appeared in this case:
Mr. Lalit Gupta, Mr. Atul Singh and Mr. Priyansh Jain, Advocates.
Ms. Shikha Singhal, Advocate for R-1/GNCTD.
Mr. Sanjeev Sindhwani, Senior Advocate with Mr. V.P. Ranaand Mr.
Kunal Mittal, Advocates for R-2.
The Judgment of the Court was delivered by
AMIT BANSAL, J. (Oral):—
I.A. 5864/2022 (O-XIV R-2(2) of CPC)
1. The present application has been filed on behalf of the respondent
no.
2. 2 under Order XIV Rules 2(2) and (5) of the Civil Procedure Code,
1908 (CPC), seeking the following prayers:
“a. frame the following additional issue:
Whether prayer ‘a’ of the Petition seeking Letters of
Administration of the Will dated 22.02.2020 with alterations
cannot be granted, being hit by Section 71 of the Succession Act?
b. consider and decide the said issue as preliminary issue;”
3. The present testamentary case has been filed by the petitioner
under Section 278 of the Indian Succession Act, 1925 (the Act),
seeking Letters of Administration in respect of the last and final Will
dated 22nd February, 2022 of late Mrs. Ramesh Kumari Bhardwaj
(Testatrix) who was the mother of the petitioner and the respondent
no. 2. The Testatrix passed away on 7th/8th March, 2020. The
respondent no. 2, in another testamentary case bearing Test Cas. No.
17/2020 titled as Nitesh Bhardwaj v. Govt of NCT has propounded a
different Will dated 14th July, 2014 of the Testatrix, which is pending
adjudication before this Court.
4. In the present testamentary case, the following prayers have been
made:
“(a) Pass an order granting Letters of Administration in favour of the
petitioner, in respect of alleged Will dated 22.02.2020 by late Mrs.
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Ramesh Kumari Bhardwaj and for administration of her entire

estate;
(b) Without prejudice to prayer para (a) and strictly in the
alternative, pass an order granting Letter of Administration in
favour of the petitioner, in respect of annexed Will dated
22.02.2022 by late Mrs. Ramesh Kumari Bhardwaj, in its original
state, omitting the alterations and for administration of her entire
estate;”
5. Vide order dated 2nd August, 2021, issues were framed in the
testamentary case, which are set out hereinbelow:
“1. Whether late Smt. Ramesh Kumari Bhardwaj legally and validly
executed her last Will and Testament dated 20.02.2022?
2. If the answer to the above issue is affirmative, what relief would
the petitioner be entitled to?”
6. Evidence by way of affidavit on behalf of the attesting witnesses
has been filed, however, the same are yet to be tendered.
7. Senior counsel appearing on behalf of the respondent no. 2
submits that the obliterations/alterations made in the aforesaid Will
dated 22nd February, 2022 are neither signed by the testatrix, nor
counter signed or marked by any of the attesting witnesses to the Will
and therefore, prayer ‘a’ in the testamentary case as set out above,
cannot be granted in terms of Section 71 of the Act.
8. The specific objection with regard to bar under Section 71 of the
Act has been taken by the respondent no. 2 in his reply/objections. It
has been pointed out to the counsel for the respondent no. 2 that the
said reply/objections is not on record. During the course of the hearing,
a copy of the reply/objections has been handed over by the counsel for
the respondent no. 2. The counsel to take steps to have the same
placed on record.
9. Reliance has been placed by the senior counsel for the respondent
no. 2 on the averments made in the testamentary case as well as the
rejoinder filed by the petitioner to the reply/objections filed on behalf of
the respondent no. 2 to contend that it is the petitioner's own case that
(i) the obliterations/alterations in the Will were not in the hand writing
of the testatrix; (ii) obliterations/alterations were not signed by the
testatrix; and (iii) none of the attesting witnesses had signed the said
obliterations/alterations.
10. Based on the above, it is submitted that since the
obliterations/alterations in the Will are not in accordance with Section
63 of the Act, the obliterations/alterations would have no effect
whatsoever and therefore, no probate could be granted of the said
altered Will in terms of Section 71 read with Section 63 of the Act.
Therefore, it is prayed that the additional issue, as noted above, be
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framed and the said issued be tried as a preliminary issue as the same
does not require any evidence.
11. Reliance is placed on the judgment in Anil Kumar v. Devender
Kumar, 2019 SCC OnLine Del 8782 to submit that the Court should not
frame omnibus issues in respect of the reliefs claimed and issues
should be framed based on the principles laid down in Order XIV Rule 3
of the CPC. Reliance is also placed on the judgment of a Division Bench
of this Court in Shakun Jaiswal v. Anand Pershad Jaisawal, 2016 SCC
OnLine Del 653 (Shakun Jaiswal I) and in the review filed against the
said judgment, being Shakun Jaiswal v. Anand Pershad Jaisawal, 2017
SCC OnLine Del 7419 (Shakun Jaiswal II), to contend that an issue
framed in a suit may be tried as a preliminary issue where the suit or
any part thereof may be disposed of on an issue of law.
12. Counsel for the petitioner makes the following submissions:
(i) There is no requirement to frame an additional issue as sought by
the respondent no. 2 as the issue no. 1 framed by the Court
covers within its ambit the additional issue sought to be framed
on behalf of respondent no. 2.
(ii) The bar under Section 71 of the Act cannot be applied in the
present case on account of disputed facts. Reliance is placed on
the written statement/objections filed on behalf of the respondent
no. 2 wherein it has been stated that the obliterations/alterations
made in the Will are ‘illegible’ and ‘undiscernible’.
(iii) In terms of Order XIV Rule 2(2) of the CPC, only where the suit
or a part thereof can be disposed of on an issue of law, would the
Court have the discretion to try such an issue as a preliminary
issue.
(iv) The judgments cited on behalf of the respondent no. 2 are not
applicable in the facts and circumstances of the present case.
13. I have heard the counsels for the parties.
14. To appreciate the rival submissions, a reference may be made to
the provisions of Section 71 of the Act, which is relied upon by both
sides. The same is set out below:
“71. Effect of obliteration, interlineation or alteration in
unprivileged Will.-No obliteration, interlineation or other alteration
made in any unprivileged Will after the execution thereof shall have
any effect, except so far as the words or meaning of the Will have
been thereby rendered illegible or undiscernible, unless such
alteration has been executed in like manner as hereinbefore is
required for the execution of the Will. Provided that the Will, as so
altered, shall be deemed to be duly executed if the signature of the
testator and the subscription of the witnesses is made in the margin
or on some other part of the Will opposite or near to such alteration,
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or at the foot or end of or opposite to a memorandum referring to

such alteration, and written at the end or some other part of the
Will.”
15. Section 71 of the Act has three distinct parts i.e., (i) the main
provision (the First Part); (ii) the exception (the Second Part); and (iii)
the manner of proof (the Third Part). This is besides the proviso to the
Section. On behalf of the respondent no. 2, emphasis is placed on the
Third Part of Section 71 of the Act, which provides that no
obliteration/alteration shall have any effect, “unless such alteration has
been executed in like manner as hereinbefore is required for the
execution of the Will” i.e., in terms of Section 63 of the Act. However,
this submission does not take into account the exception provided in
the Second Part which is in respect of “words or meaning of the Will
have been thereby rendered illegible or undiscernible”. The Third Part of
the Section qualifies the First Part of the Section, and the Second Part
of the Section provides an exception, whereby the Third Part of the
Section would not be applicable. Therefore, if the words in the Will have
been rendered ‘illegible’ or ‘undiscernible’, the provisions of Section 71
of the Act requiring that the obliterations/alterations be proved in terms
of Section 63 of the Act will not be required.
16. Respondent no. 2 himself has claimed in paragraph 4 of the
written statement/objections filed by him, that the corrections and
interpolations made out in the Will have rendered it ‘illegible’ and
‘undiscernible’. If that be the case, the requirement of proving the
obliterations/alterations in terms of Section 63 of the Act would not be
required.
17. Reference may also be made to the proviso to Section 71 of the
Act. The proviso to the said Section enumerates various scenarios when
the Will, so altered in terms of the main part of the Section, shall be
deemed to be duly executed. To illustrate, the scenarios include, if the
signature of the testator and the subscription of the witnesses is made
in the margin; or on some other part of the Will opposite or near to
such alteration; or at the foot or end of or opposite to a memorandum
referring to such alteration; and written at the end or some other part
of the Will. A reading of the aforesaid proviso to Section 71 of the Act
shows that even if the bar under Section 71 of the Act is applicable, the
Will would still be deemed to be validly executed if it falls under any of
the parameters enumerated in the proviso. Whether the
obliterations/alterations in the Will fulfil the requirement of the
deeming provision of the proviso is a matter of fact and can only be
determined in the trial. Further, whether the Will has been obliterated
or altered in a manner to have rendered the same ‘illegible’ or
‘undiscernible’ can also be established in trial only.
18. Therefore, I do not agree with the submission made on behalf of
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the respondent no. 2 that the additional issue sought to be framed, can
be decided as a preliminary issue as a question of law only. In this
regard, it is deemed apposite to refer to the provisions of Order XIV
Rule 2 of the CPC as set out below:
“2. Court to pronounce judgment on all issues—(1)
Notwithstanding that a case may be disposed of on preliminary
issue, the Court shall, subject to the provisions of sub-rule (2),
pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit,
and the Court is of opinion that the case or any part thereof may be
disposed of on an issue of law only, it may try that issue first if that
issue relates to—
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in-
force, and for that purpose may, if it thinks fit, postpone the
settlement of the other issues until after that issue has been
determined, and may deal with the suit in accordance with the
decision on that issue.”
19. In terms of Order XIV Rule 2(2) of the CPC, where issues, both
of law and fact, arise in the case and the Court is of the opinion that the
case or part thereof can be disposed of on an issue of law only, the
Court has discretion to try that issue if, inter alia, it relates to a bar to
the suit created by any law for the time being in force.
20. In my considered view, the additional issue as sought to be
framed by the respondent no. 2 cannot be decided as an issue of law
only. To determine whether the bar under Section 71 of the Act would
be applicable in the facts and circumstances of the present case, would
be a matter of trial. Therefore, evidence would have to be led to
determine whether the bar of Section 71 of the Act would be applicable
in the facts and circumstances of the present case.
21. The judgments in Shakun Jaiswal I supra and Shakun Jaiswal II
supra would not be applicable in the facts and circumstances of the
present case as it was observed in the said cases that the issues
framed by the Court as preliminary issues in the said case could be
decided without any evidence being led, as the said issues only
involved questions of law and did not require any evidence. In the
present case, whether the bar under Section 71 of the Act would be
applicable can only be decided upon evidence being led.
22. As regards the submission of the respondent no. 2 that
additional issue be framed, in my view, the issue no. 1 framed in the
present testamentary case would cover in its ambit the additional issue
now sought to be framed on behalf of the respondent no. 2. It may be
noted that vide order dated 2nd August, 2021, issues were framed in
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the three testamentary cases filed on behalf of the parties and identical
issues were framed in respect of the validity of the Will, which was the
subject matter in each of the three cases. Judicial notice can also be
taken of various other testamentary cases that come up before the
Court where similar issue is framed in respect of the legality and
validity of the Will of the testator. Clearly, respondent no. 2 can lead
the evidence in support of the bar under Section 71 of the Act, within
the ambit of the issues already framed in the present case. Issue no. 1
framed in the present case is wide enough to cover in its ambit the bar
under Section 71 of the Act. Therefore, there is no requirement to
frame an additional issue in this regard.
23. There cannot be any dispute with the proposition laid down in
the judgment in Anil Kumar supra relied upon by the respondent no. 2.
However, the observations made in the said judgment will not have any
application in the facts of the present case as the issue no. 1 framed in
the present case covers in its ambit, the additional issue sought to be
framed by the respondent no. 2.
24. The present application has been filed for framing the additional
issue as a preliminary issue on the assumption that the said issue can
be decided as an issue of law only and no evidence would be required
to be led in respect of the said issue. It is not the case of the
respondent no. 2 that even if the aforesaid additional issue is framed
and decided as a preliminary issue in favour of the respondent no. 2,
the trial would not be required in the present case in respect of prayer
(2).
25. It may also be noted that earlier an application under Order VII
Rule 11(d) of the CPC was filed on behalf of the respondent no. 2
seeking rejection of the plaint. One of the grounds raised by the
respondent no. 2 in the said application was that probate in the subject
Will cannot be granted as the bar under Section 71 of the Act would
apply for the reasons of the Will being altered/obliterated. After some
hearing, the aforesaid application was dismissed as withdrawn with
liberty to the respondent no. 2 to agitate the issue raised in the said
application at the stage of trial/final hearing. The present application is
an effort on the part of respondent no. 2 to reagitate the issues that
were raised in the application under Order VII Rule 11(d) of the CPC.
26. The application is dismissed. Respondent no. 2 is burdened with
costs of Rs. 50,000/- to be paid to the petitioner.
———
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