Delhi District Court
Ms. Monica Maitra vs Sh. Sudip Kumar Lahiri & Another on 23 May, 2009
:: 1 ::
In the court of Ashwani Sarpal, Additional District Judge,
West District, Tis Hazari Courts, Delhi.
Ms. Monica Maitra
-------------------Applicant
vs.
Sh. Sudip Kumar Lahiri & another
------------Non Applicants/
Petitioners
(MPC no.- 1/08/2000)
IN
Sh. Sudip Kumar Lahiri vs. State
(PC No.-168/96)
******************
(Application U/s 263/286/295/296 of Indian Succession Act
for revocation/annulment of probate)
Date of institution-29-9-2000
Date of decision-23-5-2009
JUDGMENT:-
Ms. Monica Maitra (herein after referred as applicant) filed an application for revocation of the probate granted to Sh. Sudip Kumar Lahiri and Major General Sandip Biswas (referred to as petitioners) vide order dated 27-1-2000 in PC no. 168/96 titled as Sudip Kumar Lahiri vs. State by Sh. M.A. Khan, the then ld. District Judge, Delhi in respect of Will dated 1-4- 1992 executed by Smt. Pratima Maitra (herein after referred as deceased) who was widow of Major General S.S. Maitra. This revocation application was filed by applicant through her father/attorney Group Captain J.C. Sen Gupta.
:: 2 ::
Allegations of the applicant:-
Major General S.S. Maitra, husband of deceased expired intestate on 1-9-1969 leaving behind his widow Smt. Pratima Maitra and only one minor son Sh. Anirudha Maitra. He was allotted a piece of land bearing no. S-89 by Panchsheel Co-Operative Group House Builders Society (herein after referred as Society) and after his death, it was transferred in the name of deceased being his nominee who raised constructions over it from the funds left by her deceased husband. It is alleged that this piece of land after death of Maj. Gen. S.S. Maitra came into share of deceased and her minor son in equal shares. Deceased also obtained Letter of Administration from Calcutta High Court on 14-12-1972 in respect of this plot also for herself and for benefit of her minor son.
Applicant married to Sh. Anirudha Maitra on 15-5-1982 and shifted to her matrimonial house situated at S-89, Panchsheel Park, New Delhi. Unfortunately Sh. Anirudha Maitra expired on 7-4-1983 intestate leaving behind his mother and applicant. It is stated that 50% share of Sh. Anirudha Maitra in the house no. S-89 devolved equally in favour of deceased and applicant and thus deceased became owner of 75% and applicant became owner of 25% share of the house in question.
Applicant alleged that on the advice and insistence of deceased, she remarried on 10-9-1988 and shifted to USA. She stated that the Will dated 1-4-1992 as propounded by petitioners is forged and fabricated and after death of deceased taken place on 12-1-1996, applicant became the sole owner of the property in question. Some litigations also took place between parties from where applicant came to know about the probate granted so moved the present application for revocation of that probate allegedly obtained by the petitioners from the Court by committing fraud, concealment of material facts and on basis of forged Will. The various grounds taken in the application for revocation of probate shall be discussed later.
Reply of non-applicants/petitioners:-
:: 3 ::
Petitioners in reply challenged the capacity of an attorney to file the present revocation application and also raised question of locus standi of the applicant to file it. They disputed the share and right of the applicant in property in question and also stated that if any right ever existed, then that had come to an end with the remarriage of the applicant. The property in question was described as an exclusive and sole property of the deceased and its bequeath in favour of petitioner was through the valid and legal Will.
Rejoinder and issues:-
Applicant filed rejoinder in which she reiterated and re-affirmed the averments made in the revocation application. On the pleadings of the parties, the following issues were framed by my ld. Predecessor on 22-11- 2005:
1. Whether the applicant has locus standi to file the objection petition?
OPA
2. Whether Group Captain J.C. Sen Gupta is duly authorized person and attorney of the applicant Monica Maitra to file the revocation petition on her behalf? OPA
3. Whether the probate granted to the non-applicant is liable to be rescinded for the reasons given in the revocation petition? OPA
4. Relief.
In order to prove her case, applicant Ms. Monica Maitra examined herself as OW-1, Sh. Madan Mohan, Assistant Technologist from Batra Hospital to prove some medical record of the deceased as OW-2, Sh. Tapas Kumar, Section Officer from Calcutta High Court as OW-3 to prove record of Letter of :: 4 ::
Administration granted by that court to deceased in respect of estate of Maj. Gen. S.S. Maitra and Sh. Daulta Ram, Office Assistant as OW-4 from Panchsheel Co-operative Society. Petitioner Sh. Sudip Kumar Lahiri examined himself only in defence as RW-1. I have heard counsels for both the parties at length and gone through the record as well as case laws cited. My issues-wise findings are as under:-
Issue no. 2:-
The present revocation application was signed and filed by Group Captain J.C. Sen Gupta being an attorney/father of the applicant. OW-1 in her affidavit of evidence proved the power of attorney dated 31-5-1997 Ex. OW1/5 given by her in favour of her father and also confirmed the same by an affidavit dated 5-6-2002 Ex. OW1/6. No effective cross-examination was done on behalf of petitioners on these two documents to show that the same were not validly and genuinely executed. Applicant herself stepped into witness box and stated about filing of revocation application in the court on her behalf. She also confirmed and rectified the act of her father in filing revocation application on her behalf so in these circumstances, the filing of this revocation application by duly constituted attorney cannot be said as defective or illegal. Mere fact that applicant has not produced her passport to show that on 31-5-1997 she was in India and executed power of attorney is of no consequences because petitioners also did not took courage to compel her to produce her passport. The power of attorney was executed before Notary Public and attested by him so presumption of its due execution can be raised. RW-1 even did not know about the power of attorney given and competency of attorney to file objections on behalf of applicant as stated in cross-examination. Even if for the sake of arguments, it is presumed that there are some technical defects in the power of attorney and does not give specific powers to attorney to file the present revocation application, then the same can be ignored as such procedural and technical defects should not be allowed to come into way of disposal of the matter on merits especially when :: 5 ::
the case is being hotly contested from which it can be inferred that the revocation application was duly filed not for and on behalf of applicant but also for her benefit. Accordingly this issue is decided in favour of the applicant and against the petitioners.
Issue no. 1:-
Applicant has already filed a suit for declaration and injunction in Hon'ble High Court in which she claimed exclusive right and title over the whole of the property in question. The present petitioners are contesting that suit. Law is well settled as per decision of Supreme Court given in case Chiranjilal Shrilal Goanka vs. Jasjit Singh (1993) 2 SCC 507 that Probate Court is not concerned with the fact whether deceased was the owner of the property in question or not. Probate Court has not to deal with question of title and ownership of the deceased qua the bequeathed property. According to this judgment of Supreme Court, even question whether property exists or not is also not to be considered in the probate proceedings and only concern of the Probate Court is to see whether the Will in question is genuine or not.
This law laid down above applies equally not only to the petitions for grant of Probate or Letter Of Administration but also to revocation applications. In the present proceedings also, it is not permissible to hold whether actual owner of the property in question was the deceased or her husband Maj. Gen. S.S. Maitra. Lot of evidence was led by applicant to show who was the actual owner of the property in question and to whom it was allotted and what was the status of the deceased qua the property. Even on this issue various documents on record as proved by the applicant, OW-3 and OW-4 were referred to and provisions of Hindu Succession Act and Indian Succession Act were pointed out during arguments. The evidence led on record by OW-3 and 4 is basically relating to title and ownership of the deceased as well as of her husband which in my opinion need not be discussed in detail but still to find out and determine the locus standi of the applicant, it becomes prima facie necessary to see whether the property was allotted to the deceased or her husband as applicant firstly is claiming 25% :: 6 ::
title over the property through her deceased husband Sh. Anirudha Maitra and then 100% after death of deceased.
In the Will, the property in question is described as self acquired property of the deceased upon which she had raised constructions from her own funds. Perpetual sub-lease of property no. S-89, Panchsheel park was executed in favour of deceased on 28-12-72 as per provisions of Bombay Cooperative Societies Act which was applicable in Delhi at that time. This deed was executed in favour of deceased for and on behalf of President of India. This sub-lease deed infact is a grant of the govt. and covered within the purview of Government Grants Act. The terms and conditions of this sub- lease deed have to be read and relied upon as it is and no contrary or inconsistent meaning of the same can be taken. In this regard reliance can be placed upon the decision of Delhi High Court in case Jor Bagh Association vs. Union of India 112 (2004) DLT 690 in which it is held that rights, privileges and obligations of any grantee of the govt. would be completely regulated by the terms of the grant even if such terms are inconsistent with the provisions of any other law. This sub-lease prima facie establishes the title of the deceased qua the property and makes the same her exclusive property. In that situation, deceased was competent to bequeath her own property in favour of any one. Applicant is claiming share in the property through her deceased husband who was described as joint owner of the same. However when property was not joint but was sole and exclusive property of the deceased, then her son had not acquired any right or title in it till his death and accordingly applicant would not get anything through him.
Mere fact that deceased once wrote a letter dated 23-6-1975 to society Ex. OW4/11 requesting for adding the name of her son also in respect of the property would not make her son automatically the joint owner because that joint ownership could not take place as society forwarded the request to competent authority DDA as per rules vide Ex. OW4/1 and due to non furnishing of necessary documents by deceased, mutation or joint ownership in name of her son could not take place as is revealed from Ex.
:: 7 ::
OW1/3. Accordingly, it can be said that when husband of the applicant could not acquire legally any title or interest in the property in his name till his death, then certainly nothing would go to the applicant after his expiry. Property in question shall be held as an exclusive property of the deceased in such circumstances and applicant would not get any locus standi to claim share in the property of deceased as her claim is through her husband and not through the deceased at first instance. Otherwise also, Sh. Anirudha Maitra did not claim any share or ownership in the property during his lifetime either by issuing any notice to the deceased or by instituting any proceedings against her or against society.
There is no dispute that Maj. Gen. S.S. Maitra became member of the society and also deposited money for the purpose of allotment of plot in his name and he had declared his wife as his nominee. However no specific plot was allotted to him till the date of his death which happened on 1-9-69. Infact the land was allotted to this society after the date of death of Maj. Gen. S.S. Maitra. When society had no land till the date of his death as land was allotted to the society by the govt. itself in the year 1970, then no question arose to allot him particular land bearing no. S-89. Otherwise also payment deposited by Maj. Gen. S.S. Maitra towards some land in anticipation of allotment was returned to the deceased subsequently upon production of Letter Of Administration issued by Calcutta High Court as revealed from Ex. OW4/5 and Ex. OW4/10.
The return of money to the deceased which was deposited by Maj. Gen. S.S. Maitra subsequently and demanding fresh money from her as per Ex. OW4/4 and OW4/5 further point out that fresh membership was given to the deceased by the society and not in lieu of membership of her deceased husband. The letter Ex. OW4/2 written by Maj. Gen. S.S. Maitra dated 2-1- 67 point out that he had deposited a sum with the society in respect of 310 sq. yards plot expected to be allotted to him and some bigger plots were likely to be offered to the members. The plot allotted to deceased was 400 sq. yards which was allotted to her on 25-10-69 as revealed from letter of society Ex.
OW4/7 much after the death of her husband. Letter Ex. OW4/4 also point :: 8 ::
out that deceased was joined as member of the society and was asked to deposit the amount of plot allotted to her. From these facts also it can be said that the property in question was not exactly the same, which was expected to be allotted to the husband of the deceased. In such circumstances, it is difficult to believe that property in question belonged to Maj. Gen. S.S. Maitra and not solely and exclusively to his wife i.e. deceased. The documents on record however leads to the inference that property in question was allotted to the deceased separately and was not belonging or ever allotted to her husband.
The endorsement of letter of society Ex. OW4/7 which was forwarded to DDA however create confusion and point out that plot in question was allotted to Maj. Gen. S.S. Maitra and after his death it was given to the deceased being his nominee. Applicant cannot be allowed to take benefit of this endorsement that appears to be not correct, if other documents are taken into consideration. The status of the deceased appears to have changed by becoming fresh member of the society and not merely remaining a nominee of her deceased husband.
Counsel for applicant while citing case Smt. Sarbati Devi vs. Smt. Usha Devi AIR 1984 SC 346, Gopal Vishnu vs. Madhukar Vishnu AIR 1982 Bombay 482 and Sushila Devi Bhaskar vs. Ishwar Nagar Coopertive House Building Society 45 (1991) DLT 518 argued that deceased had acquired membership of the society as a nominee of her husband and allotment of property to her was for and on behalf of her son also as she was holding share and interest of the deceased husband not exclusively for herself but also on behalf of her son. Even if for the sake of arguments, it is presumed that Maj. Gen. S.S. Maitra, husband of the deceased was allotted this property being the member of society who had made deceased his nominee, then also it is a fact that property in question had not been allotted to Maj. Gen. S.S. Maitra till his death which took place on 1-9-69. The property was allotted to deceased Smt. Pratima Maitra first time on 25-10-69 as per Ex. OW4/7 and its possession was given to her on 28-12-72 when sub-lease deed was executed in her favour. The property :: 9 ::
apparently was allotted in the name of deceased by the society under Section 27 of The Bombay Co-Operative Societies Act, 1925 applicable to Delhi at the relevant time. Section 26 of Delhi Co-operative Societies Act corresponds with Section 27 of Bombay Co-operative Societies Act.
Delhi High Court in Santosh Kakkar vs. Ram Prasad 71 (1998) DLT 147 while interpreting section 26 of Delhi Co-operative Societies Act in similar situation held that when a member of the society dies before allotment of plot and membership is transferred to nominee, then allotment of plot and giving of possession to that nominee would not be for or on behalf of legal heirs as an agent or trustee but he would get right and interest as a member. Delhi High Court in this case discussed all the three above judgments cited on behalf of applicant and arrived at finding that in case of immovable property, normal rule of nomination is not applicable. Hence in that situation, deceased got property in question in her own independent name and her allotment cannot be held as joint with her son. Sh. Anirudha Maitra thus got no right over the property till he expired and accordingly could not pass over any right or interest in the same to applicant i.e. his widow. Applicant thus got no right accrued in her favour in respect of property in question and accordingly had no locus standi to challenge the Will. Deceased in such situation was competent to dispose off her sole property to anyone under the Will. As the property in question was not inherited by the deceased from her husband, so provisions of section 15 (2)
(b) of Hindu Succession Act are not applicable and nothing goes in favour of applicant. Property in question appears to be not the part of the estate of the husband of the deceased so applicant is not entitled to even 25% share in the same. If the letter of administration granted by Calcutta High Court in favour of the deceased is considered, then it can be said that it was granted in respect of money deposited by Maj. Gen. S.S. Maitra towards the expected allotment of the plot by the society and not against any plot already allotted because court has to see the position on the date of his death and not subsequently.
Much reliance is put by the applicant on the letter dated 23-11- :: 10 ::
72 Ex. OW4/6 written by the deceased to the society in which she described that plot in question was allotted to her deceased husband. This letter was written in response to the letter of the society Ex. OW4/5 and has to be read along with it. The incorrect averments made in this letter would not change the exact and actual position. It was the mistaken belief of the deceased that plot in question was allotted to her husband but the legal position is that it was actually allotted to her in her individual name and capacity and not as nominee of her husband as law is already settled in this regard by Delhi High Court in Santosh Kakkar's case mentioned above. Otherwise also when as per letter of deceased Ex. OW4/11, she made a request first time in year 1975 for making the plot in joint name, then how it could be said as held jointly by her in year 1969 is not explained. Joint ownership request was simply approved by the society but that was not sufficient as grant was to be approved by the competent authority also which had not given any consent at any time. Reply Ex. OW1/3 given by the society to applicant in response of her legal notice further confirm the fact that property was never became joint of deceased and her son Sh. Anirudha Maitra. Sub-lease deed does not change merely that one of the party i.e. society had approved joint ownership.
A fresh sub-lease deed mentioning the name of son of the deceased as a joint owner was required after obtaining the consent of the competent authority. Accordingly, it is held that property was never a joint ownership property and husband of the applicant never was its joint owner along with his mother. Applicant thus does not get anything in this plot through her deceased husband.
Applicant through her advocate had also got issued a notice to the society on 29-9-83 which is Ex. OW1/2 in which she also claimed share in the property when she found that deceased was trying to get the property transferred in the name of petitioner. The wordings used in this notice also point out that deceased had some hostile attitude towards the applicant. In such circumstances where relations between deceased and applicant appears to be not cordial, then the possibility of exclusion of the applicant from the benefit of estate of the deceased under the Will cannot be ruled out. On the :: 11 ::
other hand this own notice of the applicant leads to the inference that deceased wanted to give her property to the petitioner even during her lifetime. In such situation, genuineness of the Will can hardly be doubted.
Even if it is presumed that Maj. Gen. S.S. Maitra left lot of movable assets and money and deceased had raised construction over the plot by using that money, then that would not make Sh. Anirudha Maitra as joint owner of the property. Who had raised construction and from which sources is not relevant factor in the probate proceedings. Otherwise also Sh. Anirudha Maitra never made any claim during his lifetime against her mother for taking share in the property in question. On these grounds, applicant is held as having no locus standi to claim anything from the property in question in the capacity of the successor of her deceased husband.
There is no dispute of the proposition that bare possibility of interest even though remote is sufficient to entitle person to oppose Will or apply for revocation of probate granted as held in Mutukdhari vs. Smt. Prem Debi AIR 1959 Patna 570, Nabin Chandra Guha vs. Nibaran Chandra AIR 1932 Calcutta 734 and Banwarilal Shriniwas vs. Kumari Kusum Bai AIR 1973 MP 69. It is also held in these cases that absence of citation on a person who ought to have been cited would be a defect of substance which will be deemed to be just cause for revocation of probate.
Now come to the question whether due to remarriage, relation of the applicant with family of her deceased husband came to an end or not. There is no dispute of the fact that Sh. Anirudha Maitra, husband of applicant/son of the deceased died on 7-4-83 leaving behind applicant and her mother. Applicant admittedly remarried with a Christian as per Catholic Christian rites and ceremonies on 10-9-88 and settled in USA. It is not the case of the applicant that her remarriage was performed under the provisions of Special Marriage Act wherein marriage between two persons belonging to two different religions is permitted. As per customs, Christian can marry only with Christian. In case spouse is of different religion, then his or her conversion to Christianity is required before solemnization of legal marriage.
:: 12 ::
Applicant has not placed on record her marriage certificate though admittedly was issued to show that she had not converted her religion before remarriage. Even if for the sake of arguments it is presumed that applicant before marriage had changed her religion and converted to Christian, then also that will not affect her case in any manner because section 26 of Hindu Succession Act only disqualifies heirs of the convert and not the convert from inheriting property.
Smt. Pratima Maitra died on 12-1-96 and succession opens on the date of death of the concerned person. Admittedly applicant had remarried much prior to the date of death of deceased. Section 24 of Hindu Succession Act before its repeal in year 2005 was in force at the time of death of deceased that includes disqualification for widow daughter in law from inheriting the property on remarriage. The repeal of this provision in year 2005 had no retrospective effect as per decision of Delhi High Court in case Mukesh vs. Bharat Singh 149 (2008) DLT 114. Otherwise also when it is held above that property in question exclusively belonged to deceased then applicant does not get any locus standi to challenge the proceedings of probate and to move application for revocation.
Case law cited by counsel for applicant Thankam vs. Rajan AIR 1999 Kerala 62 is totally distinguishable from the facts and circumstances of the case. In this cited case, wife was permitted to succeed to the property of her deceased husband even though divorce decree was pending but no divorce had taken place. The argument of counsel for the applicant that section 24 of Hindu Succession Act debars widow only from inheriting the property of her deceased husband and not other legal heirs of him including her in laws is without any force. Widow on remarriage does not inherit property either of her deceased husband or his other relative after the date of remarriage.
A person disputing the right of the deceased testator to deal with certain property as his own cannot properly be regarded as having an interest in the estate of the deceased. His action is rather that of one claiming to have an adverse interest. An objector claiming specific property adversely :: 13 ::
to and not through the testator is not a person who has such an interest in the estate of the deceased as will entitle him to ask for a revocation of a grant of probate.
Counsel for applicant pointed out that Letter of Administration Ex. OW3/5 granted by Calcutta High Court was in the joint name of deceased and her son but this submission is not acceptable because Letter of Administration issued by Calcutta High Court does not anywhere says that it was issued for the benefit of the son of the deceased also. Estate Duty certificate Ex. OW3/1 only deals with payment of some charges payable to the govt. in respect of some properties belonging to the deceased person as per information supplied and do not establish anywhere title or authenticate the information mentioned in it. Such certificate of payment of estate duty issued by Income Tax Department does not mention anywhere that the authorities before its issue verified veracity of its contents regarding the ownership and title. This document refer to the allotment of plot in question in the name of husband of the deceased on 14-11-69 but that is not possible because by that time husband of the deceased had already expired and after death even if property is allotted to a nominee, then it is not allotted as in a trust for the benefits of all legal heirs as per law cited above. The area of plot bearing no. S-89 in question is shown in this Estate Duty Certificate as 500 sq. yards, which is wrong because only 400 sq. yards plot was allotted to the deceased. Otherwise also, the correctness of this certificate can be doubted when compared with the Annexure-A attached to affidavit of deceased Ex. OW3/3 filed in the Letter of Administration proceedings before Calcutta High Court. This Annexure-A gives detail of movable and immovable properties and credits of Maj. Gen. S.S. Maitra and Rs. 11,300/- is shown lying deposited with the Panchsheel society and there is no reference anywhere in this list of properties that any plot was ever allotted to him by it. This amount appears to have been deposited in expectation of allotment of plot and not against any allotment taken place. The letter dated 14-11-69 referred in Estate Duty Clearance Certificate is not brought on record from which the correctness of this version of certificate can be ascertained. Accordingly no :: 14 ::
benefit can be given to the applicant on basis of this Estate Duty certificate Ex. OW3/1.
Hence it is held that applicant had no locus standi to file this revocation application being stranger to the deceased and her relationship with family had already broken and come to an end due to her remarriage so she was not legally entitled to succeed to the property of the deceased in any manner had there been no Will also. There was no necessity to include her name in the list of relatives filed in the probate proceedings by the petitioners and there was no necessity to issue any special citation to her. This issue is decided against the applicant and in favour of the petitioner.
Issue no. 3:-
The probate granted can be revoked on showing of just cause. Section 263 of Indian Succession Act describe only five clauses under which probate granted can be revoked. This provision is exhaustive regarding the grounds upon which revocation of a grant can be sought. In revocation proceedings, question of legality, validity and genuineness of the Will in question is not required to be seen because if applicant is able to show just cause falling under any of clauses of section 263 of Indian Succession Act then probate petition is reopened and trial restarts in which applicant or objector is given full opportunity to raise questions about the genuineness, legality and validity of the Will in question. Illustration (iii) of section 263 of Act gives example of just cause when Will was forged. However the forgery must be on the face of the Will and appears to be prima facie. During revocation proceedings, question of forgery is not to be seen in detail and elaborately.
Let us assume that deceased was suffering from ailments and was not physically fit at the time of execution of the Will, but still there is nothing on record to show that due to sickness or diseases her mental capacity had become so bad that she could not understand and distinguish between right or wrong. Mere suffering from ailments and having some physical problems including blindness is no guarantee that mental capacity :: 15 ::
also suffers and person becomes unsound mind and incapacitate to execute the Will. It is the wrong assumption of the applicant that deceased due to physical problems could not be said as of sound mind. Moreover when applicant had already left India after remarriage then how she could presume the alleged unsound mind position of the deceased is not explained and accordingly her presumption in this regard regarding mental status of deceased cannot be relied upon. Hence the evidence of OW-2 is of no help to the applicant whose statement cannot be accepted because medical status of any patient can be confirmed by only doctor on the basis of medical record, prescriptions and reports and not by record keeper or any junior administrative official of the hospital on basis of some registers. Otherwise also, the Will was registered and it draws a presumption of due execution in sound disposing mind. Applicant has not examined any neighbour or even maidservant living with the deceased to prove alleged unsound mind position of the deceased at the time of execution of the Will. Moreover the record produced by OW-2 is pertaining to period before her death and not of the prior relevant period of more than 3 years when Will was executed. The alleged unsound mind position of the deceased at the time of execution of the Will cannot be accepted and no ground exists to treat it as a just cause for revocation of probate. Following other grounds were taken by the applicant to challenge the probate granted.
(a) Non publication of citation in another district:- In the petition, petitioners had sought relief in respect of three immovable properties mentioned in Annexure-A attached with the petition including one plot situated in Faridabad (Haryana). However lateron petitioner no. 1 Sh. Sudip Lahiri vide his statement given in court on 5-6-97 did not choose to claim relief in respect of two properties including plot of Faridabad. However there was no such statement in this regard made by petitioner no. 2 Maj. Gen. Sandip Biswas. There is nothing on record to show that petitioner no. 2 had also relinquished his claim for Faridabad property. No power of attorney was given by petitioner no. 2 in favour of petitioner no. 1. The statement of petitioner no. 1 dated 5-6-97 in the start itself says that he was deposing for :: 16 ::
himself only and not for co-petitioner. His statement also shows that only he was forgiving his claim and nowhere stated that petitioner no. 2 was also not interested for relief in respect of that property. But even in that situation, publication of citation in respect of Faridabad property was not mandatory and non-issue of citation does not vitiate the whole trial.
When a relief is claimed in respect of outstation property, then citation under section 289 of Indian Succession Act is required to be published through the District Judge of that area. However no order was passed by the Delhi court in the probate petition for sending copy of citation to the District Judge Faridabad. Counsel for applicant cited the case law Basanti Devi vs. Ravi Prakash Ram (2008) 1 SCC 267 and argued that publication of citation through District Judge Faridabad was necessary as one of the property for which relief claimed was situated in that district. In this cited case, Supreme Court revoked the probate granted in respect of outstation property in absence of citation as required under section 283 (2) of Indian Succession Act. However, I am of the view that applicant cannot take benefit of this decision because here in this case, no relief was granted to the petitioner and outstation property was infact dropped from the prayer clause. Even if at initial stage, no order was passed for sending citation to the District Judge, Faridabad by this court then the petitioners should not be allowed to suffer from the mistake or inadvertence committed on the part of the court. What prejudice has been caused to the applicant due to non- publication of citation in Faridabad is not disclosed by her anywhere. Even if it was a defect, then it was not of substantive nature to invalidate the proceedings when no probate was granted for that Faridabad plot. Otherwise also applicant had no chance to succeed to the testatrix's estate then issue of special citation to her was not required at all. In this regard reliance also can be placed on the decision given in case Dulu Kuer vs. Kesar Kuer AIR 1964 Patna 518.
(b) Citation published in newspaper having very thin circulation:-
The citation was ordered to be published in the newspaper 'National Herald' which was having very thin circulation. There is no dispute of the fact that :: 17 ::
this newspaper was not having much circulation in Delhi as compared to other newspapers but this newspaper 'National Herald' was recognized newspaper for publications of court notices etc. by High Court of Delhi. The court had not committed any mistake in getting the citation published in this newspaper meant for information to the general public. Applicant cannot be allowed to take the plea that she was not subscribing this newspaper or had not read it because if such type of pleas are allowed to be entertained then, no useful purpose would be served in getting the notices or citations published in the newspaper as every one would start taking such plea to frustrate the case of the opposite party.
(c) Incorrect verification of probate petition by attesting witness:-
Section 281 of Indian Succession Act requires the verification of probate petition by the attesting witnesses. A particular language is also prescribed in this provision in which verification is to be done. Petition shows that one of the attesting witnesses Sh. Aniruddha Chaterjee at the end of the petition, verified the same. However in his verification, he gave wrong name of the testatrix and described her twice as 'Smt. Pratima Chatterjee' instead of Smt. Pratima Maitra. He also used word 'His signatures' instead of 'her signatures' in his verification. It is also argued that in this verification, witness had not verified thumb impressions of the testatrix. Now the petitioners describe these incorrectness or lapses as typing mistake.
The compliance of section 281 of Indian Succession Act is not mandatory but is directory. Had there been no verification, then also that would not have make out a sufficient ground to reject the petition. I am of the view that incorrect verification or absence of verification is not so material and this ground itself is not just and sufficient to revoke the probate granted. Such minor discrepancies can be ignored in view of the decision of Delhi High Court given in case Swaran Lata vs. State AIR 2006 Delhi 21. The mentioning of partly wrong name by attesting witness may be a typing mistake which can be ignored. The non-taking of any steps by the petitioner to get this typing mistake corrected at any stage is of no consequences.
(d) Non impleadment of all legal heirs whether is concealment of :: 18 ::
facts:- There is a difference between the proposition 'Relatives'. 'Legal Heirs' and 'Legal Representatives'. Counsel for applicant stated that order sheet of the court shows that list of all relatives was demanded by the court again and again from the petitioners and not legal heirs and they were required to disclose all the relatives who could be covered under section 15 and 16 of Hindu Succession Act. RW-1 admitted that deceased had three brothers and four sisters, all of whom were not disclosed in the list of relatives.
Even if in the order sheet of the court it is mentioned that list of all relatives of the deceased be submitted but virtually it was not meant that details of every type of relations be given. Only those persons who could inherit the property of the deceased had there been no Will was required to be disclosed. Only those relatives who have plausible interest in the estate of deceased need to be mentioned and not remote relatives. A divorced women may continue to meet her earlier in laws and maintain good relation with them but that does not mean that she due to cordial relations continue to be a successor of the property of her divorced husband or other relatives. Even if for the arguments it is presumed that applicant continued to meet deceased and was having cordial relations with her then also certainly due to her remarriage she had been legally debarred to succeed the property of her mother in law as per section 24 of Hindu Succession Act so there was no requirement to disclose her name in the probate proceedings. She could not succeed the property of deceased in any circumstances. Accordingly there was no necessity to mention her name in the list of relatives. Otherwise also, petitioners had disclosed about her in the body of the probate petition so cannot be said that they had concealed the material facts and obtained probate by committing fraud upon the court.
It was also argued on behalf of the applicant, that name and particulars of all brother and sisters of the deceased were not disclosed in the list who falls in clause-II of Schedule of Hindu Succession Act and had there been no Will, then property would have gone to them. However I am of the view that applicant had no right to challenge the probate on this ground as this objection is required to be raised by those brothers and sisters of the :: 19 ::
deceased who are affected and not by any stranger. Applicant has to confine herself to her individual locus standi and not to argue the matter for and on behalf of others who have not come forward to raise any grievances. Case law cited by counsel for applicant Manibhaiamaidas Patel vs. Dayabhaiamidas (2005) 12 SCC 154 is not applicable to the present facts and circumstances of the case because in this matter before Supreme Court, the legal heirs of the deceased were not joined and no special citation was issued to them who had very much equal interest in the property of the deceased but here in the present case, interest and right whatever had with the applicant at one time was lost and she became stranger and incompetent to inherit the property of the deceased due to her remarriage. This ground is also not available to the applicant to get the probate revoked.
(e) No notice to applicant:- Admittedly no notice of the probate petition was issued to the applicant. Widow daughter in law inherit the property of her deceased mother in law in absence of any other legal heir as held in Seethalakshmi Ammal vs. Muthuvenkatarama Iyengar (1998) 5 SCC 368 but this cited case law can be distinguished from the facts and circumstances of the present case because in the present case bar of section 24 of Hindu Succession Act applies which was not the position in the case cited above. Otherwise also in that case there was no Will whereas in the present case, Will was involved left by mother in law of applicant. When it is held above that applicant was not having any interest in the property of the deceased and was having no locus standi to inherit the property of the deceased in any circumstances then there was no necessity to issue any notice to her.
:: 20 ::
(f) Non giving of value of the properties in probate petition:- There is no dispute that in the probate petition, petitioners had not given approximate value of the properties for which relief was sought. However it is only an irregularity but not an illegality that require the rejection of the probate granted. Moreover this submission raised is beyond pleadings and no such ground was taken in the revocation application. Otherwise also, the question of assessment of value of the property arises only when necessity to pay the court fees arises before issuance of formal probate certificate.
(g) Issue of probate in favour of petitioner no. 2 whether not correct:- Petition was filed jointly by two petitioners. However petitioner no.
2 Maj. Gen. Sandip Biswas never appeared in the witness box. He had not given any power of attorney to petitioner no.1 Sh. Sudip Lahiri. The statement of petitioner no.1 recorded in court was for himself only as specified by him and not for and on behalf of petitioner no. 2. Petitioner no. 2 had not come forward to depose in the court but still court granted probate in his favour also. However I am of the opinion that it does not constitute any illegality.
The case can be filed by any number of petitioners and it is not necessary that all should have been examined and come in the witness box. Court has to see the quality and not the quantity of the evidence. Even if petitioner Sudip Lahiri was having no power of attorney of co-petitioner in his favour and he had given the statement for himself then also, the proceedings do not become vitiated. Petition was filed by petitioner no. 2 also who was the executor and beneficiary under the Will. As Will was proved from the statement of attesting witness, so the probate granted to both the petitioners who were beneficiary under the Will was justified on the part of the court and there was no requirement of examination of petitioner no. 2 also. This submission is hereby rejected.
(h) Non production of previous Will:- Will of deceased dated 1-4-92 as well as para no. 5 of the probate petition clearly mention that she had revoked earlier Will dated 5-4-86. Petitioners had not brought that earlier Will on record of the probate case but in my opinion that is not so material as :: 21 ::
law recognize only last testament of the deceased which always prevails. Non- production of earlier Wills is neither mandatory nor even required to be referred to. This submission raised on behalf of the applicant is hereby rejected. Counsel for the applicant also argued that Will dated 1-4-92 cannot be said as Will but only a codicil so without production of previous Will, the present Will could not have been correlated so the production of previous Will dated 5-4-86 was necessary but this submission is also without any force because if the contents of the Will dated 1-4-92 are read then it clearly shows that it was a fresh and new Will by which previous Will was changed due to different circumstances and was not merely a codicil to explain earlier Will dated 5-4-86. Accordingly, I am of the view that non-production of earlier revoked Will dated 5-4-86 does not make out a ground for revocation of the probate already granted.
Certain contradictions in statement of RW-1 whether father of attesting witness Anil Ahuja used to visit deceased after execution of the Will when he had already died as in the Will this witness had used the word 'late' before name of his father is not sufficient to throw away this Will and is not sufficient to allow the application. In view of the above discussion, it is held that no just cause is available to the applicant to get the probate granted to the petitioners/non-applicants revoked or annulled. This issue is decided against the applicant and in favour of the petitioners.
Issue no. 4 (Relief):-
In view of the findings given above, revocation application is hereby dismissed leaving both parties to bear their own costs. It is made clear that observations made while deciding issue no. 1 regarding title of the property in question shall not cause prejudice to the applicant in her civil suit. File be consigned to record room.
(ASHWANI SARPAL)
Dated:- 23-5-2009 ADDITIONAL DISTRICT JUDGE