Objections In Contested Testamentary Cases Must Not Be Rejected On Technical Grounds, Delay Condonable Unless Inordinate: Delhi High Court

“…while dealing with a testamentary petition, the endeavour of the Court should be not to reject the objections on technical grounds, unless it is found that the same is filed with an inordinate delay”, said Justice Rekha Palli.

The factual matrix of the case was such that the court had granted 6 weeks' time to the respondents to file objections/reply from the date of service of the amended petition. The applicants/respondent Nos. 4 and 5 filed their objections after a delay of 85 days since the expiry of the 6-week period.

As such, they had to prefer an application for condonation of delay, which was contested by the petitioner and respondent Nos.2,3,8 and 9. In the application, it was stated the objections were delayed because respondent No.5 was suffering from ill-health and was not in a position to give effective instructions, especially in the context of the past proceedings between the parties.

The petitioner pointed out that the application had been filed after expiry of the 120-day period stipulated under Delhi High Court (Original Side Rules), 2018 (“Rules”). He disputed the court's power to condone delay of over 120 days in filing of objections in a contested testamentary case, and contended that the grounds raised by applicants were vague and insufficient.

On the aspect of court's power to condone delay, the petitioner added that as per Section 295 of the Indian Succession Act, proceedings in a contested testamentary case are to be carried out in accordance with Chapter VII of the Rules, not Chapter XXIX.

Senior Counsel YP Narula appearing for the applicants argued that merely because under Section 295 of the Succession Act, proceedings in contested testamentary cases are to be held as a regular suit, it did not imply that the rigors of Chapter VII of the Rules strictly applied to such cases.

After hearing rival submissions, the court found itself in agreement with the applicants on the point that the strict rigors of Chapter VII of the Rules could not be said to automatically apply to contested testamentary cases, only because such cases ought to be tried as a regular suit in terms of Section 295 of the Succession Act.

It rejected the petitioner's contention that the court did not have power to condone delay of over 120 days in such cases.

“…taking into account the special nature of this testamentary jurisdiction where the Court is required to give effect to the wishes of a person who is no longer available to express his/her desire, Chapter XXIX of the Rules does not provide for any such strict timelines as are applicable to a civil suit which is governed by Chapter VII.”

On the issue of sufficiency of grounds taken in the application, Justice Palli noted that one of the applicants, who was stated to have been suffering from ill-health, was 81 years old. Though the other applicant (her son) could have given instructions for filing of the objections, it was fit to refrain from adopting a hyper technical view.

“…while exercising this special jurisdiction where grant of probate of the Will, as sought by the petitioner, is likely to drastically change the entire line of succession of the testator, a rigid or a hyper technical view ought not to be adopted.”

The court added that there was no reason to disbelieve the applicants' plea. Besides, there was no “gross delay” in filing of objections, inasmuch as the same were filed within 9 days of the expiry of the 120-day period.

Accordingly, the application was allowed and the applicants' objections taken on record.

Counsels for petitioner: Advocates Sanjeev Mahajan, Rishabh Varshney, and SS Chadha

Counsels for respondents: Advocate Kanak Bose for respondent No.2; Advocates Karan Nagrath, Nupur Kumar, Ambuj Tiwari, Muskal Nagpal, and Arjun Nagrath for respondent No.3; Senior Advocate YP Narula with Advocate Abhey Narula for respondent Nos.4 & 5; Advocate Ujas Kumar for respondent No.7; Advocate Damini Chawla for respondent Nos.8 & 9

Case Title: Vikas Malhotra v. The State of NCT of Delhi & Ors.

Citation: 2023 LiveLaw (Del) 1243