JAI PRAKASH GOEL Vs. O P GOEL

JUDGEMENT

(1.) This appeal has been filed u/s 10 (1) of the Delhi High Court Act, 1966 (hereinafter referred to as "the said Act") impugning the order dated 20.09.2004 passed by a learned single Judge of this Court disposing of IA Nos.9693/1999, 13292/2000, 12548/2000 and 5197/2004 in Test Cas No.10/1987 which is a petition filed by the appellant / petitioner for grant of probate in respect of an alleged will left by the father (Late Jugal Kishore Goel) of the appellant and the respondents. IA No. 9693/1999 was an application under Order 32 Rules 3 and 15 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") for appointment of a guardian ad litem for Respondent No.3 (Shri Brahm Prakash Goel) on account of his mental infirmity and consequent inability to look after and protect his interest in the pending probate proceedings (i.e., Test Cas No.10/1987). I.A. 12548/2000 sought the same relief as IA 9693/1999. By IA 13292/2000, the said Shri Brahm Prakash Goel sought to withdraw the No Objection to the grant of probate which he had earlier given on 27.04.1988. IA 5197/2004 was filed by the appellant / petitioner seeking dismissal of the above three applications. The learned Single Judge who heard these applications was primarily concerned with the question of appointment of a guardian ad litem for Shri Brahm Prakash Goel and, in appointing his wife (Mrs Meena Goel) as the guardian, he disposed of all the applications.

(2.) The alleged will of Late Jugal Kishore Goel is of 27.08.1983 and in terms of which immovable properties belonging to him were apparently bequeathed absolutely and forever in favour of the petitioner / appellant and his sons leaving nothing for the other children (including the said Brahm Prakash Goel). It was also provided that all debts and liabilities including Estate Duty be first paid out of the cash and movable properties that may be left by the Testator and the residual cash and movables were to belong to and vest in his three sons, namely, Jai Prakash Goel (the appellant herein), Satya Prakash Goel and Brahm Prakash Goel in equal shares. Satya Prakash Goel had filed objections to the grant of probate. However, as mentioned above, Brahm Prakash (respondent No.3 herein) had given his no objection by means of an affidavit dated 27.04.1988. A similar no objection was given by the widow of the Testator, namely, Late Muthri Devi. It is pertinent to note that the latter is also alleged to have left a will dated 07.06.1988 and in respect of which probate proceedings are pending before the District court. Interestingly, under this will, the portion of the property bequeathed in favour of Brahm Prakash Goel was by way of creation of a trust for his benefit on the purported ground of improper, unattached and estranged behaviour of his wife towards him"Brahm Prakash. Earlier, Brahm Prakash had filed IA 10110/1998 praying that he be permitted to withdraw his no objection to the grant of probate. However, that application was dismissed as withdrawn on 20.05.1999.

(3.) As noted above, the impugned order was essentially concerned with the question as to whether a guardian ad litem should be appointed for respondent No.4 (Respondent No.3 herein), namely, Shri Brahm Prakash Goel, who had filed IA No. 9693/1999 invoking the provisions of Order 32 Rules 3 and 15. It was prayed therein that the wife of Brahm Prakash, namely, Mrs Meena Goel be appointed as his guardian ad litem. By virtue of the impugned order, the learned Single Judge was of the opinion that although Brahm Prakash Goel would not be a person of unsound mind, there was no manner of doubt that he was incapable of protecting his interest in the litigation by reason of his mental infirmity and infliction of an abnormally low I.Q. (Intelligence Quotient). The learned Single Judge was also of the view that the creation of a trust by virtue of the alleged will of the mother of the parties herein was also an indication that the petitioner/appellant must have been aware of the advisability of having a guardian ad litem appointed for him as, in fact, it was the petitioner / appellant who was appointed as a trustee for the benefit of Brahm Prakash Goel under the said alleged will. The learned Single Judge was also of the view that in the first instance, it was the petitioner"s duty to have drawn the attention of the court to the mental infirmity of his brother Brahm Prakash. It was recorded by the learned Single Judge that it is not in dispute that Brahm Prakash was slow of understanding and is afflicted with mild mental retardation. It was pointed out that in the order dated 06.12.1999, it had been recorded that there was no objection to the fact that Shri Brahm Prakash is slow of understanding.