A RIJIT PASAYAT, J. - (1.) LEAVE granted.
(2.) THE core question involved in this appeal is whether a direction for Deoxyribonucleic Acid Test (commonly known as DNA test) can be given in a proceeding for issuance of succession certificate under the Indian Succession Act, 1925 (in short the "Act"). Challenge in this Appeal is to the order of a learned Single Judge of the Delhi High Court setting aside the order of learned Administrative Civil Judge, Delhi dated 20.12.1999 whereby he had allowed an application under Section 151 of the Code of Civil Procedure, 1908 (in short the "CPC") filed by the appellant seeking DNA test of the respondent no. 1 Smt. Teeku Dutta and Sh. Ram Saran Dass Sharma, (who is not a party in this appeal). Respondent No. 1 has filed case No. 86 of 1944 for grant of success ion certificate under Section 372 of the Act.
(3.) BACKGROUND facts in a nutshell are as follows: The respondent No. 1 filed a petition for grant of Succession Certificate in respect of the properties of one Iqbal Nath Sharma (hereinafter referred to as the "deceased") claiming that she was his daughter and the only surviving Class 1 legal heir under the Hindu Succession Act, 1956 (in short the "Succession Act"). It was indicated in the petition that the deceased had died intestate leaving behind five brothers-Sh. Banarsi Dass, Sh. Amar Nath Sharma, Sh. Ram Saran Dass Sharma, Sh. P.L. Sharma and Sh. K.C. Sharma. Originally Sh. Banarsi Dass was not impleaded and rest four were impleaded. Out of them Sh. P.L. Sharma and Sh. K.C. Sharma had expired and only Amar Nath Sharma and Ram Saran Dass Sharma were alive and were impleaded as respondents to the petition. During the pendency of the petition Banarsi Dass, was also impleaded. He filed objection to the grant of Succession Certificate disputing Mrs. Teeku Dutta's claim. It was stated that she was not the daughter of the deceased. Evidence has been led and documentary evidence was also filed in support of the respective stands. At this stage the application under Section 151 CPC was moved by the objector Banarsi Dass alleging that the respondent Mrs. Teeku Dutta was not the daughter of the deceased, but in fact is the daughter of Ram Saran Dass Sharma and since the deceased and his wife both were dead it would not be possible to subject them to a DNA test and compare with the DNA test of Mrs. Teeku Dutta. Since Ram Saran Dass Sharma is alive, DNA test of Sh. Ram Saran Dass Sharma and Mrs. Teeku Dutta would conclusively establish the paternity of Mrs. Teeku Dutta. The application was opposed on the ground that it was malafide and was made with a view to delay the proceedings. It was further stated that the DNA test would not serve any purpose as sufficient documentary evidence has already been brought on record. The trial court allowed the application primarily on the ground that Mrs. Teeku Dutta had initially concealed the fact that the deceased had five brothers and had deliberately left out Banarsi Dass Sharma from the array of respondents, and this casts doubt on the bonafides of the applicant's claim of being the daughter of the deceased. The trial court considered the petition for grant of succession certificate and the "no objections" filed by other respondents namely Ram Saran Dass and Amar Nath Sharma to be somewhat collusive. Another reason which appears to have weighted heavily with learned trial judge was that the documentary evidenc e brought on record was not cogent enough to show that she was the daughter of the deceased. Further the trial court held that since the applicant for the DNA test was willing to bear the cost of the said DNA test, there would not be any difficulty in directing DNA test. ;