Smt Kamal Sethi v. Sh S K Sethi

$~2 * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO(OS) 265/2015 SMT KAMAL SETHI ..... Appellant Represented by:

Ms.Shikha Goyal proxy for Mr.R.L.Kohli, Adv.

versus SH S K SETHI ..... Respondent Represented by:

None

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE MUKTA GUPTA

O R D E R

% 16.02.2016 1.

Impugned order has allowed interim applications filed for restoring testamentary case No.29/2003 which was dismissed in default. 2.

To recompense the appellant cost in sum of `25,000/- is directed to be paid to each of the respondents. Appellant would therefore be receiving `25,000/-.

3.

Impugned order is not a judgment as per law declared by the Supreme Court in the decision reported as (1981) 4 SCC 8 Shah Babulal Khimji Vs. Jayaben D. Kania.

4.

That apart, it is settled law if a suit is dismissed in default, fresh suit can be filed provided limitation has not expired. 5.

Pertaining to a Will the settled law is that the testamentary document is a call by the executor to the future to execute the same for the reason the estate of the deceased is held by the executors as a trustee. It is the duty of the future to execute the trust of somebody who has gone into the realm of the past.

FAO(OS) 265/2015

6.

The petitioner of testamentary case No.29/2003 can always file a fresh petition seeking probate of the Will in question. 7.

The appeal is dismissed 8.

No cost.

PRADEEP NANDRAJOG, J.

MUKTA GUPTA, J.

FEBRUARY 16, 2016 'ga'

FAO(OS) 265/2015