Punjab-Haryana High Court
Yashwant Singh Yadav vs Sharda Yadav on 28 September, 2001
Author: Bakhshish Kaur
Bench: Bakhshish Kaur
JUDGMENT Bakhshish Kaur, J.
1. The challenge in this revision petition is to the order dated November 28, 2000 passed by the learned Additional Civil Judge (Senior Division), Gurgaon in the petition under Section 276 of the Indian Succession Act for grant of probate in respect of the will dated 2.12.1995.
2. Miss Sharda Yadav filed a petition under Section 276 of the Indian Succession Act (hereinafter referred to as 'the Act') for the grant of probate in respect of the will dated 16.6.1992 executed by Co. Mani Ram Yadav.
3. Col. Mani Ram Yadav had died on 4.3.1996. He had allegedly executed registered will dated June 16, 1992 and a supplement will dated December 2, 1995 in favour of respondent No. 1. On the basis of the will, the respondent avers that she is entitled to the issuance of probate in her favour.
4. Besides the general public, notices were also issued upon Yashwant Singh Yadav (now petitioner) and others. Out of them, only three had contested the petition and they are Yashwant Singh Yadav, Devinder Singh Yadav and Mrs. Pushpa Yadav. On their appearance, they had filed an application challenging the execution of the will and submitted that since the case is contentious, therefore, the Court has no jurisdiction to entertain this petition.
5. The objections so raised by the contesting respondents (hereinafter referred to as the petitioner) was not accepted by the triai Court, who, dismissed the application vide impugned order.
6. I have heard Mr. Suvineet Sharma, learned counsel for the petitioner and Mr. Praveen Kumar, learned counsel appearing for Mr. Gorakh Nath, Advocate for respondent No. 1.
7. Mr. Suvineet Sharma, learned counsel for the petitioner contended that only the District Judge has jurisdiction to grant or revoke probate under the Act. The learned Additional Civil Judge (Sr. Division) by passing the impugned order has exceeded the jurisdiction vested in it by entertaining the petition under Section 276 of the Act as well as by dismissing the application filed by the petitioner that the Court has no jurisdiction to entertain this petition.
8. The petition has been filed under Section 276 of the Act for the grant of probate in respect of the will dated December 2, 1995. The requirement of Section 276 of the Act is as under :-
"Petition for probate. - (1) Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases, mentioned in Section 237, 238 and 239, a copy, draft or statement of the contents thereof, annexed, and stating -
(a) the time of the testator's death.
(b) that the writing annexed is his last Will and testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to come to the petitioner's hands, and
(e) when the application is for probate that the petitioner is the executor named in the Will. (2) In addition to these particulars, the petition shall further state,-
(a) When the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and
(b) When the application is to a District Delegate that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate. (3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner's hands is situate in another [State], the petition shall further state the amount of such assets in each [State] and the District Judges within whose jurisdiction such assets are situate."
The provisions of Section 276 of the Act make it clear that the petitioner under this Section ought to state all the assets which are likely to come to his hands. It is the duty of the person applying for grant of probate to bring to the notice of the Court who are the persons who prima facie have a claim on the estate. There appears to be compliance so far as these aspects of the case are concerned.
9. The short point which needs consideration is whether any other court except the court of the District Judge is empowered to entertain the petition and pass an order granting probate in respect of the will, particularly when there is dispute over the will and the matter appears to be contentious one ? The answer to this question can be easily found from Section 286 of the Act.
10. Where a party files the objections against an application for grant of letters of probate, the proceedings cease to be non-contentious. Section 286 of the Act is as under:-
"286. District Delegate when not to grant probate or administration. - A District Delegate shall not grant probate or letters of administration in any case in which there is contention as to the grant, or in which it otherwise appears to him that probate or letters of administration ought not to be granted in his Court.
Explanation. - "Contention" means the appearance of any one in person, or by his recognised agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding."
The word "District Delegate" used in Section 286 of the Act has been interpreted by the learned Additional Civil Judge (Sr. Division) as having been empowered to deal with the matter by virtue of delegation of powers, in view of notification No. 325-Gaz.II/xv.C. 16 dated 28.11.1995, issued by the High Court in exercise of the powers conferred by Section 30 of the Punjab Courts Act. 1918. There is no dispute that the powers with regard to proceedings under the Act and the probate have been conferred upon all the Civil Judges (Senior Division) and Additional Civil Judges (Senior Division), but these powers would not take away the powers conferred under the Act under Section 286 of the Act which provide that the District Delegate shall not grant probate or letters of administration in any case where there is contention as to the grant, or in which it otherwise appears to him that probate or letters of administration ought not to be granted in his Court.
11. Though the word "contention" has been described in the explanation added to Section 286 of the Act yet the Dictionary meaning of the word "contention" would further make it clear that the parties are in dis-agreement. In the Oxford dictionary, the word "contention" means - contending; competition; two teams in contention for the title/to win the title; angry disagreement; assertion made in an argument.
12. In the Webster's Encyclopedic Unabridged Dictionary, meaning of the word "contention" is - a striving together in opposition; strife; a striving in rivalry; competition; contest; strife in debate; dispute; controversy; a point contended for or affirmed in controversy.
Similarly, the dictionary meaning of the word "contentious" is - liking to argue;
quarrelsome; likely to cause disagreement; a contentious book, law, speech; a contentious clause in a treaty: given to contention; prone to strife or dispute; tending to argument or strife; causing, inflicting or characterized by argument or controversy; contention; of or pertaining to differences between contending parties.
13. In the given case in hand as well, the petitioner and respondents No. 3 and 4 are not in agreement over the will allegedly executed by Col. Mani Ram Yadav in favour of Miss Sharda Yadav. Therefore, the learned Additional Civil Judge (Sr. Division) being the Delegate Judge cannot grant probate or letters of administration in view of the provisions envisaged under Section 286 of the Act. The District Delegate should have returned the application to respondent No. 1 for the purpose of presenting the same to District Judge, as is required under Section 288 of the Act. It reads as under :-
"288. Procedure where there is contention, or District Delegate thinks probate or letters of administration shall be refused in his Court. - In every case in which there is contention, or the District Delegate is of opinion that the probate or letters of administration should be refused in this Court, the petition, with any documents which may have been filed therewith, shall be returned to the person by whom the application was made, in order that the same may be presented to the District Judge, unless the District Delegate thinks it necessary, for the purpose of justice, to impound the same, which he is hereby authorised to do; and, in that case, the same shall be sent by him to the District Judge."
14. Under Section 264 of the Act, the District Judge has the jurisdiction in granting the revoking probates and letters of administration in all cases within his district. Under Section 265 of the Act, the High Court may appoint such judicial officers within any district as it thinks fit to act for the District Judge as delegates to grant probate and letters of administration in non-contentious cases. It is only in non-contentious cases that the District Delegate will be empowered to deal with the application for the issuance of letter of administration but not in the case where a dispute has arisen or where it is a contentious matter. The effect of Sections 265 and 288 of the Act read together is that 2. Civil Judge (Senior Division) who is District Delegate cannot grant letter of administration in contentious applications and in this regard reference is made to Vijay Kapoor and another v. Maya Ram, AIR 1998 HP 14 (15) (DB), Bai Zabu Khima v. Amardas Balakdas, AIR 1967 Guj. 214.
15. In view of the aforesaid, this revision petition is allowed. The impugned order is set aside. The District Delegate, i.e., Additional Civil Judge (Senior Division), Gurgaon is directed to return the petition to the respondent-applicant for its presentation before J the Court having jurisdiction as is required under Section 288 of the Act.
16. Parties through Their counsel are directed to appear before the learned Additional Civil Judge (Senior Division), Gurgaon on 18.10.2001.