MAYA SINHA & ORS Vs. SOMENDRA SINGH

JUDGEMENT

(1.) The Court : Though the review application has been filed along with an application under Section 5 of the Limitation Act, this Court invited the learned Advocate for the petitioner to formulate the points on which the application for review is based upon. Though the learned Advocate appearing for the respondent vehemently opposes the application for condonation of delay and prays for a direction to file affidavit-in-opposition, yet this Court feels that it would merely postpone the disposal of the review application on merit. There is no doubt in my mind that the application for review came to be filed after enormous delay. Yet after considering the averments made therein, this Court feels that the petitioner must be give an opportunity to place the application for review on merit. There is no hesitation in my mind that the meritorious matter should not be dismissed on the anvil of the limitation but the encouragement must be shown to get the matter disposed of on merit. After perusing the averments made in the application for condonation of delay this Court finds that the petitioner was prevented by sufficient cause in filing an application for review within the statutory period provided therefor. The application for condonation of delay is, thus, allowed.

(2.) The review application is taken up for hearing. The review is sought for a judgement and order dated 19.06.2008.

(3.) It would be relevant to narrate the salient facts necessary for the purpose of disposal of the review application. An application for probate was filed by the applicant as executor to the Will of the testator. A caveat was filed in support thereof. The affidavit was affirmed challenging the veracity, legality and authenticity of the Will. The objector says that the testator was not capable to alienate or made any disposition by virtue of such Will and there is a suspicious circumstances surrounding the execution of such Will. It is not in dispute that the Will in question was registered with the Sub-registrar of the Registering Authority on commission. The application for probate was converted into contentious cause and was decided on the basis of an evidence to be adduced by the respective witnesses. The learned Judge of the Testamentary Court dismissed the application for probate with the categorical finding that the said Will was shrouded by a suspicious circumstances. The said judgement and order was carried to a Division Bench in APD No. 556 of 1994. The learned Judges constituting the Division Bench deferred on the factual matrix as the resultant effect the reference was made to a Third Judge to decide the same. The Third Judge concurred in favour of the learned Judge who did not find any merit in the appeal and dismissed the same. As a consequence whereof, the order of the Testamentary Court stood affirmed. The present review application is filed challenging the judgement and order of the learned Third Judge on various grounds including that the said judgement contains erroneous findings and/or the finding based on no material.