Bombay High Court
Arjundas S/O Narayandas Panjwani And ... vs Vera Mishra Of Bombay And Anr. on 26 October, 1994
Equivalent citations: 1995(3)BOMCR497, 1995 A I H C 4200
JUDGMENT N.D. Vyas, J.
1. This is a petition filed for revocation of grant made by this Court in respect of Item 83 pertaining to an immovable property situate at Katni, Tehsil Murwara, District Jabalpur, M.P. This item was included by order dated 29th February, 1992.
2. The 1st respondent had filed a petition for grant of letters of administration with all annexed to the property and credits of her deceased husband Mr. Ramanugrah Prasad Mishra who died at Bombay on 24th March, 1967. The petition was numbered as Petition No. 316 of 1969, and in the petition the 1st respondent had asked for letters of administration in respect of the properties and the estate of the deceased which consisted of only movables described in the Schedule. The grant was made in favour of the 1st respondent on 1st April, 1970. The deceased had died issueless leaving behind only the 1st respondent as his legal heir. The deceased had a brother by name Narayan Prasad Mishra. It is the petitioners' case before me that by a conveyance dated 26th December, 1977, the said Narayan Prasad Mishra conveyed the immovable property bearing Municipal House No.83 to 83/4 situate at Kamania Gate Galli, ward Malviya Ganj, Katni to the petitioners for a sum of Rs.1,01,000/- and the conveyance was duly registered. The conveyance, inter alia, recites---
"My brother Ramanugrah Prasad is continuously owner of whole this (sic) house and he has complete custody and possession of this house. As my said brother Ramanugrah Prasad was without any child and he has no wife died (sic) leaving behind me and therefore I am sole and only legal heir and owner of this house." It appears from the petition that an ejectment suit was filed by the petitioners in 1979 against some parties for recovery of arrears of rent and possession of the property. The matter had gone right upto the Supreme Court and the ejectment decree, which was passed, had become final. In the meantime, an application, by way of an affidavit, was made by the 1st respondent through the 2nd respondent, who is the Constituted Attorney of the 1st respondent, for amendment of the Schedule to the grant and, thus, inclusion of the aforementioned immovable property in the Schedule also. On 18th July, 1987, the 1st respondent was directed to pay additional stamp duty which was paid and supplemental estate duty was also paid, and on 29th February, 1992, amended letters of administration were granted to the 1st respondent.
3. The grounds on which the revocation is sought are set out in paragraph 8 of the petition and they are that when the application for amending the Schedule to the petition was made for incorporating the said immovable property, the 2nd respondent knew that the said property stood in the name of the petitioners and, therefore, a notice ought to have been given to the petitioners and since no notice had been given, the grant had been obtained by suppression of material and relevant facts; that the application for amendment of the Schedule was made after a lapse of 17 years and, therefore, the grant be revoked in respect of the said property and that the brother-in-law of the 1st respondent, viz., the said Narayan Prasad, had clearly averred in the conveyance that the 1st respondent had died prior to December, 1977 and, therefore, the 2nd respondent could not have acted as a power of attorney holder of a dead person. In these circumstances, it is alleged that the affidavit dated 21st January, 1987, under which application for amendment was made, clearly appeared to be false and, therefore, the grant be revoked; that the application for amendment was made to defraud the petitioners and to defeat their legal rights inasmuch as that the 2nd respondent was aware that the petitioners had purchased the property. It is further averred that the petitioners have sufficient interest in the said immovable property and their rights are going to be affected if the grant is allowed to remain in force.
4. Mr. Diwan, learned Counsel appearing for the 2nd respondent, submitted that the petitioners do not have any locus to take out the present petition. Mr. Chitnis, learned Counsel appearing for the 1st respondent, supported Mr. Diwan.
5. The question which, therefore, arises for consideration is whether the petitioners have any revocable interest and, secondly, if they have such an interest, whether the petitioners have made out a 'just cause' for revocation of the grant.
6. Section 263 of the Indian Succession Act deals with revocation or annulment for 'just cause' and the same provides that the grant of probate or letters of administration may be revoked or annulled for 'just cause' and the explanation to section 263 provides that 'just cause' shall be deemed to exist where the proceedings to obtain the grant were defective in substance or the grant was obtained fraudulently by making a false suggestion or by concealing from the Court something material to the case or 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 the grant has become useless and inoperative through circumstances or the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII or has exhibited an inventory or account which is untrue in a material respect. The petitioners before me have, therefore, apart from proving that they have a locus in the matter, to make out a case to fall within the four corners of section 263.
7. As far as locus is concerned, section 283 of the Indian Succession Act lays down that citations are required to be issued calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration. It is needless to say that when the grant was made for the first time on 1st April, 1970, the question of issuing citations to the petitioners did not arise. First of all, they were not on the scene claiming any 'interest' in the immovable property and, secondly, they did not, at that time, otherwise have any interest in the estate of the deceased as required by section 283(1)(c) of the Act. However, it was sought to be argued by Mr. Kanuga, learned Counsel appearing for the petitioners, that after the conveyance was executed in favour of the petitioners on 26th December 1977, the petitioners had acquired an 'interest' in the immovable property and, therefore, when the application was made for amendment of the Schedule in January, 1987, the 1st respondent should have given notice to the petitioners about the said application and, having not done so, the amendment by which this immovable property was included in the Schedule is invalid and, therefore, revocation has to be granted.
8. Mr. Kanuga cited several authorities in support of his contention that citation/notice was required to be given to the petitioners. If the answer to this contention is in the affirmative, then it would also mean that the petitioners have locus. Mr. Kanuga cited decision in the case of Pramode Kumar Roy v. Sephalika Dutta, , in which it was, inter alia, held that a person who has acquired an interest in the testator's estate, though after his death, by reason of the mortgage transfer by the testator's son and who is undoubtedly also a creditor of the testator's said son whom the alleged will purports to disinherit had plainly locus standi to apply for revocation of the grant, particularly when his allegation was that the grant was obtained in fraud of the creditors. The said decision further goes on to explain what is meant by 'just cause'.
Mr. Diwan, learned Counsel appearing for respondent No. 2, submitted that as far as this decision was concerned, the creditor there had "an interest in the testator's estate" as required by section 283 of the Indian Succession Act inasmuch as that he was a creditor of the testator's son whom the alleged will purported to disinherit. It was the submission of Mr. Diwan that citations are required to be served only on persons having 'interest' in the estate of the deceased and in the above decision, the creditor was not a simple creditor but a creditor who would have been affected by the grant inasmuch as he was a creditor of a heir at law.
The next decision cited by Mr. Kanuga was in the case of Mrs. Elizabeth Antony v. Michel Charles John Chown Lengera, . In the said decision, the Supreme Court, inter alia, laid down that under section 283 of the Indian Succession Act, the District Judge or District Delegate may, if he thinks proper, issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration. In paragraph 6 of the said decision, the Supreme Court has considered various decisions and held that a person who has a real interest in the estate which is or is likely to be prejudicially affected or adversely affected by the will can oppose the grant of probate or letters of administration.
Mr. Diwan, referring to the facts in the above decision, submitted that there cannot be any dispute as to citations being served on a heir at law or a person claiming through a heir at law. However, it was his submission that the petitioners in the present case were not claiming through a heir at law.
Mr. Kanuga, next, cited decision in the case of Banwarilal Shriniwas v. Kumari Kusum Bai, , wherein a purchaser who acquired an interest in the estate of the testator, by reason of a transfer by the heirs at law, after his death, was held to be entitled to citation because he was a person who ought to have been cited as contemplated in illustration (ii) to section 263 of the Act.
Mr. Kanuga, lastly, relied on a decision in the case of Sarala Sundari Dassya v. Dinabandhu Roy Brajaraf Saha (firm), reported in A.I.R. (31)1944 PC at page 11, wherein the Privy Council, after discussing the scope of sections 263 and 283 of the Indian Succession Act, held that a creditor of a heir of the testator was entitled to apply for revocation of probate. The Privy Council was dealing with the question as to whether or not the respondents before it had a locus standi to apply for revocation of the probate.
Mr. Diwan, in response to the above decisions, submitted that there cannot be any doubt as to citations being served on an heir at law or a person claiming through an heir at law. However, it was his submission that in the present case the petitioners were not claiming through an heir at law and, therefore, were not required to be cited.
9. Mr. Diwan, in support of his submission, cited a decision in the case of Abhiram Dass v. Gopal Dass, reported in XVII I.L.R. at page 48, wherein it was, inter alia, held that a person not claiming any of the property of the testator, but disputing the right of the testator to deal with certain property as his own, has not such an interest in the estate of the testator as entitled him to come in and oppose the grant of probate. It was, inter alia, held that the words "interest in the estate of the deceased" meant interest in the estate purporting to be that of the deceased for the purpose of the Indian Succession Act, viz., the estate appearing to be that of the deceased under the will. It was further held that a person disputing the right of a deceased testator to deal with certain property as his own cannot be properly regarded as having an interest in the estate of the deceased and that his action was rather that of one claiming to have an adverse interest. Mr. Diwan, next, relied on a decision in Ralph v. Hale, reported in Civil Judgments No.7 at page 27, wherein it was, inter alia, held that an objector claiming specific property adversely to and not through the testator was not a person who had such an interest in the estate of the deceased as would entitle him to ask for revocation of a grant of probate. It was further laid down in the said decision that it was settled law that the probate Court should not go into questions of title and that grant of probate did not prejudice a party, claiming specific property, who was not an heir, and it was also settled law that a Court cannot refuse probate merely because a testator had not power to dispose of property deal with by the will. Mr. Diwan also cited a decision in the case of George Anthony Harris v. Millicent Spencer, reported in 35 Bom.L.R. at page 708, wherein it was, inter alia, laid down that it was necessary for the person applying for revocation of a grant of letters of administration to show that he was interested in the will alleged to have been made by the deceased, i.e., in the estate of the deceased disposed of by the alleged will. Mr. Diwan, lastly, relied on a decision in Paresh Chandra Das v. Bidhu Bhusan Banerjee, reported in (1955)1 I.L.R. Calcutta at page 429, wherein it was, inter alia, held that the expression "interested in the estate of the deceased" found in section 283(1)(c) of the Indian Succession Act meant to include persons who did not dispute the title of the deceased but claimed to have some interest in the estate left by the deceased and that a person who claimed adversely to the testator had no locus standi to come in and object to the grant of probate.
10. From the above discussion on the decisions cited by the learned Counsel, it is clear that only a person who claims through the testator or an heir at law can be said to be having 'interest' in 'the estate' of the deceased or a stranger who is a creditor of an heir at law can be said to have such an interest, but a person claiming adversely to the testator or not claiming through the heir at law of the testator cannot be considered to be a person interested in the estate of the deceased.
11. It is an admitted fact that the conveyance dated 26th December, 1977, under which the petitioners purchased the property, in the recitals, inter alia, mentioned that the property was a joint property of Ramanugrah Prasad (the deceased) and his brother Narayan Prasad Mishra. The further recital that the wife of the deceased, viz., the 1st respondent, had died, appears to be totally erroneous. All the same, the petitioners, while purchasing the property, were put to notice that the property was a joint property and that in the absence of the deceased (having died) and the 1st respondent also alleged to have died, and there being no children, Narayan was required to obtain representation to the estate of the deceased in order to dispose of the undivided half share of the deceased in the immovable property in question. The conveyance by Narayan, not being an heir in view of 1st respondent being alive, of the undivided half share of the deceased also could not have been made without such representation. In these circumstances, the petitioners are not claiming through the heir at law of the deceased. Had it been the conveyance by the deceased in their favour, or had it been a conveyance in their favour by an heir of the deceased, it would have been a different matter altogether. The 1st respondent, being alive, was certainly the only heir of the deceased who could have effected the transfer. In these circumstances, I have no doubt that the petitioners have failed to satisfy that they have any locus to take out the present revocation proceedings.
12. It was also submitted by Mr. Kanuga that there were several suspicious circumstances suggesting even fraud. He went to the extent of submitting, obviously on instructions, that, in fact, the 1st respondent did not exist and had died long since and that the 2nd respondent could not have acted upon the power of attorney. He was at pains to point out as to what extent the 2nd respondent had played fraud on this Court. Both the respondents are represented by Attorneys who have filed appearance. It is vehemently opposed on affidavit by the 2nd respondent that the 1st respondent has expired, that there is no one by the name Vera Mishra in existence. I am satisfied with the explanation given by the respondents although, as the petitioners have failed to establish their locus, there is no question of my going behind the amendment granted by this Court. This Court granted the amendment on being completely satisfied with the merits of the application. There is no case made out, whatsoever, for revocation of the amendment.
13. In the result, the petition fails and is dismissed with costs.
14. Certified copy expedited.