Madhya Pradesh High Court
Rasheed Khan And Anr. vs Peer Mohammad on 4 April, 1991
Equivalent citations: 1992(0)MPLJ607
ORDER T.N. Singh, J.
1. This is a hopeless appeal and it merits a short order.
2. Appellants are impugning an order passed under Section 263 of the 'Act'. They had obtained probate, which has been revoked by the impugned order. For simple and short reasons to follow, the appeal is held to be misconceived and meritless.
2A. What is manifestly clear is that revocation of a Will is contemplated when "proceedings to obtain the grant were defective in substance". Illustrations (i) and (ii), appended to the section, further amplify the scope of the provision. They contemplate that when the Court making the grant had no jurisdiction and when the grant was made without citing parties who ought to have been cited, that would be deemed to be "just cause" within the meaning of the term employed in Section 263. In the instant case, the admitted fact is that the Will of which probate has been granted contained a lethal statement. In the Will itself it was stated that that an earlier Will had been executed in favour of respondent/Peer Mohammad. That being the position, as per Section 283 of the Act, the District Judge was required to issue notice to him and in the instant case, on oath, Peer Mohammad stated that no notice had been served on him and that of the probate granted on 10-10-1980, he acquired knowledge through other sources and he obtained copy of the order on 15-2-1982. The application for revocation was filed indeed on the same date, namely, 15-2-1982. The objector/applicant Peer Mohammad admittedly was a resident of an interior village Gram Dorcha of Tahsil Seondha in District Datia and he stated that in his village, there was no circulation of any newspaper. He also claimed that the non-applicants, namely, Rasheed Khan and Sanna Mohammad, who had obtained the probate, were aware of the fact that the applicant/objector was the real beneficiary of the deceased Lal Khan and he was entitled to deceased's property.
3. The undisputed fact in this case is that no special citation has been issued though general citation was published in a newspaper. I have no doubt that the Probate Court could exercise its jurisdiction to probate the Will only when the person "interested", namely, the respondent/Peer Mohammad, had been noticed. It cannot he disputed that ex facie, he had "interest in the estate of the deceased" as in the Will of which probate was obtained, his name had been referred and it was stated that a Will had been earlier executed in his name. He had a right to oppose the probate and to prove that the Will propounded was not validly executed or it was a" forged Will. Of that opportunity, he was deprived and the proceedings in the matter of grant of the probate to the instant appellants, were palpably and grossly defective; and not only defective in substance. I have no doubt that the trial Court lacked inherent jurisdiction to pass any order in the probate proceedings initiated by the appellants without hearing respondent/Peer Mohammad.
4. Shri Katare who has very competently and forcefully argued the appeal, has cited this Court's Division Bench decision in Rajeshwari Devi's case, 1978 MPLJ 433 = AIR 1978 MP 201. I do not think if that at all helps him. Indeed, this Court observed therein that where citation had not been ordered, the party impugning the Will on the ground of his non-citation must first show that he ought to have been cited, before the burden of proof is shifted to the executor to show that the defect in the proceedings was not one of substance and that no just cause for revocation exists. In the instant case, on facts, the burden from the very beginning rested on the propounder/appellants. There was no question of any burden at all to be shifted to them because the Will which they themselves propounded mentioned the fact that in Peer Mohammad's favour, an earlier Will had been executed. It is true that this Court has also held that jurisdiction under Section 263 is a discretionary one and the trial Court may refuse revocation if a just cause is not established. In the instant case, on the other hand, what I find is that the trial Court has properly, duly and validly exercised its discretion in granting the prayer for revocation. A full, complete and valuable "just cause" had been duly established and my finding also is that, as indicated above, there existed inherent want of jurisdiction in the Probate Court to grant the probate as the result of non-citation of Peer Mohammad who had been named in the Will propounded for probate. Indeed, the Will executed in his favour earlier was registered Will.
5. Reliance is also placed by Shri Katare on Balmukand's case, 1975 MPLJ 285 = 1975 JLJ 252, which, in my opinion, has no relevance to the contention agitated. True, as Shri Ramji Sharma has contended, before the Probate Court, the objection was not at all raised to that Court's jurisdiction to pass the impugned order. For the first time, before me, in this Court, Shri Katare has contended that the probate was granted to appellants by District Judge, Datia, while the impugned order is passed by the Additional District Judge, Datia. Thereforre, the order is void. The question, in my opinion, is what Court is a "probate Court". Section 264, read with Section 2(bb) answers that question. A "District Judge" can grant or revoke probate, but as per Section 2(bb) answers that question. A "District Judge" can grant or revoke probate, but as per Section 2(bb) any Judge of a principal Civil Court of original jurisdiction is a District Judge. It cannot be disputed that the Additional District Judge, according to M.P. Civil Courts Act, 1958, also tries original Court's Civil suits. It cannot, therefore, be disputed that he is a Judge of a principal Civil Court of original jurisdiction. Indeed, Section 7 of the said Act makes the position clear that an Additional Judge to the Court of District Judge is a principal Civil Court of original jurisdiction and he is entitled to discharge "any of the functions of the District Judge" and he "exercises the same powers as the District Judge". That seals finally the fate of this appeal. Nothing has to be said about Balmukand's case (supra) because that matter was in relation to appellate powers of a District Judge.
6. However, Shri Ramji Sharma has also drawn my attention to the fact that the impugned order has been passed in due compliance with this Court's direction made on 8-9-1989 in M.P. No. 239 of 1987. It is submitted that the Probate Court before which the proceedings were pending in regard to the revocation is the Court which had passed the instant order. He submitted that when that order was passed also, no objection was raised by the instant appellants to jurisdiction of that Court to deal with the proceedings under Section 264(1) or to pass any order therein. That is the second and final nail in the coffin of appellants' case.
7. For all the aforesaid reasons, this appeal, I reiterate, is hopelessly meritless and is dismissed. No order as to costs.