Basanti
Devi Vs. Raviprakash Ramprasad Jaiswal [2007] Insc 1054 (12 October 2007)
S.B.
Sinha & Harjit Singh Bedi
(Arising
out of SLP (C) No. 20484 of 2006) S.B. Sinha, J.
1.
Leave granted.
2. A
short but interesting question which arises for consideration in this appeal is
as to whether an application under Section 263 of the Indian Succession Act for
revocation of grant of probate would be maintainable, inter alia, on the
premise that the appellants name was not cited in the said application for
grant of probate.
3. The
basic fact of the matter is not in dispute.
4. A
Will was executed by one Lakhpati Devi widow of late Mahadeo Jaiswal in favour
of the respondent herein who was one of the grand sons of late Bhagwatidina,
one of the brothers of late Mahadeo Prasad. Appellant herein claimed that the
said Lakhpati Devi had executed another will on or about 12.3.1996. The said Lakhpati
Devi admittedly expired on 13.03.1996.
Whereas
the appellant did not file any application for grant of probate in relation to
the aforementioned will dated 12.03.1996, the respondent did so on 6.9.1996. In
the said application, it was contended that the properties under the Will are
situated in Bombay stating :
That
the said deceased at the time of her death had a fixed place of abode at Room
No.10-11, Bharat Building, Sonapur Lane, Chira Bazar, Mumbai 400 002 and left
property within Greater Bombay in the State of Maharashtra. It was
furthermore stated :
That
no application has been made to any District Court or District Delegate or to
any other High Court for probate of any will of the said deceased or for Letter
of Administration with or without the Will annexed to her property and credits.
5.
However, an application for amendment of the application for grant of probate
was filed in the said testamentary proceedings which was allowed.
On the
basis of the averments made by the respondent in the amended application,
citations were published only at Bombay on 28.1.1997.
Respondent,
however, filed an application for amendment of the petition for grant of
probate on 21.03.1997, inter alia, stating :
That
the said deceased at the time of her death had a fixed place of abode at Room
No.10-11, Bharat Building, Sonapur Lane, Chira Bazar, Mumbai -400 002 and left
property within Greater Bombay in the State of Maharashtra and elsewhere in
Union of India. It was, therefore, not disclosed at what other places the
properties are situated.
6. It
was furthermore averred that there was no heir known to the petitioner on the
side of husband of the deceased. The schedule of assets allegedly left by the
deceased was also inserted in the schedule of the properties stating :
1. All
that piece and parcel of pension tax land of ground (since redeemed) with the messauges
tentament or dwelling house standing thereon situate lying behind at Sonapur
Street Girgaum Road outside the Fort of Bombay in the Registration Sub-District
of Bombay in the land of the Bombay contained by admeasurement 243 )two hundred
and forty three) square yards or thereabouts and registered in the Books of
Collector New No. 980 New Survey No.8158 and Cadastral Survey No.567 of Bhuleshwar
Division and in the books of the Collector of Municipal Rates and Taxes under
(C) wards No.3385 and Street No.6 and bounded as follows : that is to say on or
towards the East by the properties bearings Cadastral Survey Nos.570, 571, 572,
573 and 574 on or towards the west partly by the properties bearing Cadastral
Survey No.565 and 566 and partly by a passage on or towards the north by the
property bearing Cadastral Survey No.568 and or towards the south by the Sonapur
Street Valued at Accrued gross rent of the above immoveable property from the
date of death till filing of this petition Rs.1,00,000/- Rs. 7,500/-
2.
S.B. A/c No.21416 with Bank of India, Kolabadevi Branch Mombai-2 standing in
the name of deceased with accrued interest upto date of filing this petition Rs.
1,000/-
3.
Amount standing to the credit of the deceased in current A/c No.31080 with Bank
of India Kolabadi Branch Mumbai standing in the name of M/s Mahadeo forthwith
in which deceased was sole Proprietor Rs. 3,000/-
4. The
Milk shop being shop No.1/11 situated at Bharat Building Sonapur lane Chira Bazar
Mumbai-2 currently infrastructure in the name & style of Mahadeo farm :
together with valued at Rs. 50,000/- IN THE STATE OF UTTAR PRADESH
5. One
open piece of land situate at Dist. Pratap Gad, Village Mahadeo Nagar, (U.P.)
Valued at The above plot does not fetch any rent of income. Rs. 1,000/- TOTAL
Rs.1,62,500/-
7.
However, no citation was made in the State of Uttar Pradesh. A probate was granted in favour of the respondent by the
High Court by order dated 7.4.1997. An application for revocation of the said
grant of probate was made by the petitioner herein, inter alia, on the premise
that although she was one of the heirs of the said Lakhpati Devi, no citation
was made.
Furthermore,
a Will had also been executed in her favour.
8. A
learned Single Judge of the Bombay High Court dismissed the application for revocation
of probate filed by the petitioner which was marked as Miscellaneous Petition
No.1 of 2000 by a judgment and order dated 23.6.1996 opining :
The
requirements for letter of administration and grant of probate are different.
It is an admitted position that public notice was issued before issuing a
probate. The petitioner neither filed any caveat nor filed any objection after
the publication.
Therefore,
this petition does not survive for consideration.
8. On
an intra court appeal having been preferred thereagainst, a Division Bench of
the said Court, on the premise that the appellant was not a legal heir of the
deceased being an agnate, dismissed the same.
9. Mr.
Raju Ramachandran, learned senior counsel appearing on behalf of the appellant,
inter alia, would submit that the High Court committed a grave error in passing
the impugned judgment insofar as it failed to take into consideration that an
agnate is also an heir in terms of the provisions of the Hindu Succession Act.
It was furthermore contended that the said application should have been
entertained also having regard to Explanation (c) appended to Section 263 of
the Indian Succession Act irrespective of the fact as to whether the appellant
had any notice of the probate of the said Will or not. Even on the ground of
non-compliance of the requirement of Sub- section (3) of Section 283 of the
Indian Succession Act, the learned counsel would contend, probate was granted
without complying with the requirements of law.
10.
Husband of late Lakhpati Devi late Mahadeo Prasad was one of the five sons of Vindeshwari
Prasad-Ganesh Jaiswal; his brothers being late Bhagwatidina, late Gayadin, late
Mahavir Prasad and late Kailash. Late Bhagwatidina had three sons, namely, late
Mata Prasad, late Ram Prasad and late Moti Lal. Respondent herein is one of the
sons of late Rama Prasad.
Late Ramaprasad
died leaving behind his widow Sursati and three sons, Suresh, Ramesh and Ravi Prakash
(Respondent). Other brothers of Mahadeo Prasad have died leaving behind their
respective heirs and legal representatives. Late Mahabir Prasad had six sons.
Appellant is widow of late Harihar Prasad, one of the sons; other sons being being
late Ganga Prasad, Jamuna Prasad, Babulal, Late Amrit Lal and Surya Lal.
11.
Parliament enacted the Hindu Succession Act, 1956 to amend and codify the law
relating to intestate succession among Hindus. Section 3(f) of the Hindu
Succession Act defines heir to mean any person, male or female, who
is entitled to succeed to the property of an intestate under the Act. Section
15 of the Act lays down the general rules of succession in the case of female
Hindus in the following terms :
15.
General rules of succession in the case of female Hindus.
(1)The
property of a female Hindu dying intestate shall devolve according to the rules
set out in section
16. (a)
firstly, upon the sons and daughters (including the children of any
pre-deceased son or daughter) and the husband;
(b) secondly,
upon the heirs of the husband;
(c) thirdly,
upon the mother and father;
(d) fourthly,
upon the heirs of the father; and
(e) lastly,
upon the heirs of the mother.
(2)
Notwithstanding anything contained in sub- section (1),--
(a)
any property inherited by a female Hindu from her father or mother shall
devolve, in the absence of any son or daughter of the deceased (including the
children of any pre- deceased son or daughter) not upon the other heirs
referred to in sub-section (1) in the order specified therein, but upon the
heirs of the father; and
(b) any
property inherited by a female Hindu from her husband or from her father-in-law
shall devolve, in the absence of any son or daughter of the deceased (including
the children of any pre-deceased son or daughter) not upon the other heirs
referred to in sub-section (1) in the order specified therein, but upon the
heirs of the husband.
12.
For the purpose of ascertaining as to who would be heirs of the husband if the
deceased did not leave any sons and daughters or husband; reference has to be
made to Section 8 of the Act which reads as under :
Section
8. General rules of succession in the case of males.The property of a male
Hindu dying intestate shall devolve according to the provisions of this Chapter
(a) firstly,
upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly,
if there is no heir of class I, then upon the heirs, being the relatives
specified in class II of the Schedule;
(c) thirdly,
if there is no heir of any of the two classes, then upon the agnates of the
deceased; and (d) lastly, if there is no agnate, then upon the cognates of the
deceased. It is, therefore, not correct to say that agnates of the
deceased are not heirs.
13.
Mr. R.P. Bhatt, senior counsel appearing on behalf of the respondent, however,
would contend that in terms of the Rules framed by the Bombay High Court, it
was not necessary to make any citation in the State of Uttar Pradesh. Rule 683 of the Bombay High Court
Rules reads as under :
683.
Notice to next-of-kin In all applications for Probate, Letters of
Administration and Succession Certificate, Notice of the application shall be
given to all the heirs and next-of-kin of the deceased mentioned in the
Petition except to those whose consent has been filed in the proceedings.
14. It
is, therefore, not correct to contend that no citation in regard to the heirs
of Lakhpati Devi was necessary. The properties left by the deceased Lakhpati Devi
were situated at two places, one in the State of Maharashtra and another in the district of Pratapgarh in the State of Uttar Pradesh.
15. We
have noticed hereinbefore that the respondent, for the reasons best known to
him, did not, at the first instance, disclose that any property belonging to
the testator was situated at a place other than the State of Maharashtra. Such disclosure was required to be
made in terms of sub- section (3) of Section 283. Citations were also required
to be published by the concerned District Judge in terms thereof.
16. In
the application for amendment of the application, a vague statement was made.
Even therein it was not disclosed that another property is situated in the
District of Pratapgarh in the State of Uttar Pradesh, the reason therefor is beyond anybodys comprehension.
17.
The provisions contained in sub-section (3) of Section 283 are mandatory in
nature. Once the statutory requirements are found to have not been complied
with, an application for revocation of the grant of probate would be
maintainable in terms of Section 263 of the Act, apart from the fact that
non-publication of citation could be one of the ground to revoke the grant of
probate. Explanation (c) appended thereto in a case of this nature would be
attracted. The said provision reads thus :
263.
Revocation or annulment for just cause. The grant of probate or letters of
administration may be revoked or annuleed for just cause.
Explanation.Just cause shall be deemed to exist
where (a) & (b) ... (c) the grant was obtained by means of an untrue
allegation of a fact essential in point of law to justify the grant, though
such allegation was made in ignorance or inadvertently; or (d) to (e) ...
18. It
may, therefore, be permissible for the appellant to show that a Will was
executed by said Lakhpati Devi in her favour also on 12.03.1996. Mr. Bhat
contends that the appellant had given up the right to the property under the
said Will. Even if that is so, this Court is not concerned therewith at this
stage.
Appellant
had merely filed an application. The said application has not been entertained
although the same, in our opinion, should have been done. The question,
therefore, is as to whether the said application should have been entertained.
19.
Reliance has been placed by Mr. Bhat on a decision of this Court in Ishwardeo Narain
Singh v. Smt. Kamta Devi & Ors. [AIR 1954 SC 980] wherein, inter alia, it
was held :
The
Court of Probate is only concerned with the question as to whether the document
put forward as the last will and testament of a deceased person was duly
executed and attested in accordance with law and whether at the time of such
execution the testator had sound disposing mind. The question whether a
particular bequest is good or bad is not within the purview of the probate
Court.
20.
The Probate Court, indisputably, exercises a limited jurisdiction. It is not
concerned with the question of title. But if the probate has been granted
subject to compliance of the provisions of the Act, an application for
revocation would also lie.
21. In
Chiranjilal Shrilal Goenka v. Jasjit Singh & Ors. [(1993) 2 SCC 507], whereupon
again Mr. Bhat relied upon, this Court held :
On
a conspectus of the above legal scenario we conclude that the Probate Court has
been conferred with exclusive jurisdiction to grant probate of the will of the
deceased annexed to the petition (suit); on grant of refusal thereof, it has to
preserve the original Will produced before it. The grant of probate is final
subject to appeal, if any, or revocation if made in terms of the provisions of
the Succession Act, It is a judgment in rem and conclusive and binds not only
the parties but also the entire world. The award deprives the parties of
statutory right of appeal provided under Section 299. Thus the necessary
conclusion is that the Probate Court alone has exclusive jurisdiction and the Civil Court on original side or the Arbitrator
does not get jurisdiction, even if consented to by the parties, to adjudicate
upon the proof or validity of the Will propounded by the executrix, the
applicant. It is already seen that the executrix was nominated expressly in the
will is a legal representative entitled to represent the Estate of the deceased
but the heirs cannot get any probate before the Probate Court. They are
entitled only to resist the claim of the executrix of the execution and
genuineness of the Will. The grant of probate gives the executrix the right to
represent the estate of the deceased, the subject-matter in other proceedings.
We make it clear that our exposition of law is only for the purpose of finding
the jurisdiction of the arbitrator and not an expression of opinion on merits
in the probate suit.
22. It
is now well settled that an application for grant of probate is a proceeding in
rem. A probate when granted not only binds all the parties before the Court but
also binds all other persons in all proceedings arising out of the Will or
claims under or connected therewith. Being a judgment in rem, a person, who is
aggrieved thereby and having had no knowledge about the proceedings and proper
citations having not been made, is entitled to file an application for
revocation of probate on such grounds as may be available to him. We are,
therefore, of the opinion that the application for revocation of the grant of
probate should have been entertained.
23.
The impugned judgment, therefore, is set aside and the appeal is allowed and
the matter is remitted to the learned Single Judge of the Probate Court with
costs. However, we make it clear that we have not entered the merit of the
matter.
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