Delhi District Court
Shri Rakesh Kumar vs Sh. Nand Gopal Bachhas on 13 July, 2009
-: 1 :-
IN THE COURT OF SHRI V.P. VAISH, DISTRICT JUDGE-II CUM
ADDL. SESSIONS JUDGE (NORTH) TIS HAZARI COURTS, DELHI
MPC No. 26 / 2007
Date of institution: 08.10.2007
Judgment reserved on: 06.07.2009
Judgment pronounced on: 13.07.2009
1. Shri Rakesh Kumar
S/o Late Shri Kedar Nath,
R/o B-2/198, Yamuna Vihar,
Delhi
2. Smt. Vidya Rani,
W/o Sh. Daulat Ram,
R/o H.No. 2051, Mukimpura
Malka Ganj, Delhi-07
3. Smt. Asha
W/o Sh. Jagdish Kumar
R/o WZ-3362, Titarpur,
Najafgarh Road,
New MIG, DDA Flats,
New Delhi - 27 ......... Petitioners
Versus
Sh. Nand Gopal Bachhas
S/o Late Sh. Babu Ram
R/o 3130, Gali Sushila,
Turkman Gate, Delhi
Also at:
Sh. Nand Gopal Bachhas
S/o Late Sh. Babu Ram
G-9/22, Sector-15, Rohini,
Delhi-110085 ........ Respondent
Rakesh Kumar Vs. Nand Gopal Bachhas
-: 2 :-
Petition under Section 263 of the Indian Succession Act,
1925 for revocation or annulment of Probate of Will dated
04.02.1985 & Letter of Administration
-------------------
JUDGMENT
This is a petition under Section 263 of the Indian Succession Act, 1925 for revocation of Probate granted vide Judgment dated 24.03.2004 in Probate Case No. 206/02.
2. The brief facts giving rise to the present petition are that respondent Nand Gopal Bachhas had filed a petition under Section 372 of the Indian Succession Act for grant of Probate in respect of Will dated 04.02.1985 executed by deceased Smt. Bishan Devi wife of late Shri Babu Ram. Citation was issued in the newspaper 'Veer Arjun' but no one appeared from the general public to file any objection. Notice of the petition was also issued to the other relations of the deceased and they filed their reply in the form of no objections. My learned predecessor, vide Judgment dated 24.03.2004 allowed the petition and ordered for grant of Letter of Administration with regard to Will Ex.Pw- 1/2 executed by Smt. Bishan Devi, with a copy thereof annexed thereto, in favour of the respondent herein, subject to his furnishing requisite court fee and administration bond, with one surety.
3. The petitioners / applicants have filed the present petition for revocation of Judgment dated 24.03.2004 on the grounds interalia that non applicant did not include the names of Usha and Bimla as Rakesh Kumar Vs. Nand Gopal Bachhas -: 3 :- near relations of the testatrix and joint no objection of both the said persons was filed and the non applicant mislead the Court, on the basis of which Letters of Administration was granted and Letters of Administration was issued on 08.07.2005. No objection on behalf of Usha and Bimla was filed without their personal appearance and without recording their statement.
4. The applicant has alleged that deceased Shri Nathu Mal was original owner of property in question, and during his life time he had handed over two rooms, a barsati and a combined toilet block to his real brother in law Chandu Mal, who was grandfather of the applicants / petitioners and on the death of Shri Chandu Mal the petitioners continued in possession of the said premises. The site plan of the portion in the occupation of the applicants has been filed as Annexure X with the application.
5. The applicants have also alleged that a partition deed dated 30.03.1931 was executed in the name of Shri Hira Lal and the name of Chandu Mal was not included in the partition deed. Shri Hira Lal had not left any Will and his share was to be divided amongst three daughters. The testatrix was one of the three daughters of deceased Hira Lal and her share was 1/3rd share of 1/3rd share of deceased Hira Lal. The non applicant had defrauded the Court at the time of obtaining Letters of Administration as Shri Hira Lal was owner of 1/3rd share of the suit property. Shri Hira Lal died in the year 1946 and he never objected to the possession of suit property by Shri Chandu Mal.
Rakesh Kumar Vs. Nand Gopal Bachhas -: 4 :- Deceased Smt. Bishan Devi never filed any suit against Chandu Mal, grandfather of the applicants.
6. It is also alleged that genuineness of the Will of Smt. Bishan Devi dated 04.02.1985 is doubtful. She had not affixed her right thumb impression. It is also alleged that even after grant of Probate to the non applicant, the house tax bills in respect of entire house No. 3249, Lal Darwaja, Bazar Sita Ram, Delhi are being issued in the name of late Shri Nathu Mal. The Probate was granted without citing concerned parties. The non applicant has failed to file full and true inventory of the said property and exhibit the same, as per provisions of law.
7. Notice of application was issued to the non applicant. The non applicant contested the application by filing reply on the grounds interalia that the application is not maintainable, applicants / petitioners are neither legal heirs of the deceased testatrix nor have any concern with the property in question. The applicants are tenants under non applicant and have no locus standi to file the present petition. The non applicant filed petition before the Competent Authority Slum for permission to initiate eviction proceedings against the applicants and the permission was granted. Eviction petition has been filed against the applicants, which is pending in the Court of Ms. Savita Rao, learned Addl. Rent Controller, Delhi. The applicants are not paying rent and are trying to retain the possession of the premises without making payment. The application is without any cause of action. On Rakesh Kumar Vs. Nand Gopal Bachhas -: 5 :- merits, it is stated that applicants are tenants in the premises under the non applicant and they are not heirs of the deceased testatrix. It is denied that the original owner had handed over two rooms, barsati and a combined toilet block to his real brother in law Shri Chandu Mal. The name of Chandu Mal was not included in the partition deed as he was neither owner nor heir of the owner, Chandu Mal was tenant. It is also denied that the non applicant defrauded the Court.
8. The applicants filed replication to the reply filed by non applicant, denied the allegations made in the reply and reiterated the averments made in the application.
9. On the pleadings of parties following issues were framed by my learned predecessor on 17.07.2008:-
1. Whether the applicants have the locus standi to file the revocation application? OPAs
2. Whether there are justified grounds for revocation of Letter of Administration dated 08.07.2005 granted vide Judgment dated 24.03.2004 in favour of the respondents? OPAs
3. Relief.
10. In support of their case, the petitioners have examined petitioner No.1, Shri Rakesh Kumar as PW-1. He has tendered his affidavit, which is Ex.P-1. By way of his affidavit, he has deposed in terms of the petition. He has proved the certified copy of Judgment Rakesh Kumar Vs. Nand Gopal Bachhas -: 6 :- dated 24.03.2004 as Ex.Pw-1/1 and certified copy of Letters of Administration dated 08.07.2005 as Ex.PW-1/2. In cross examination he admitted that Smt. Bishan Devi, Smt. Manno Devi and Smt. Dhanno Devi were real sisters and they were daughters of Hira Lal, Hira Lal had died and Shri Chandu Lal was father of Shri Kedar Nath. He denied the Chandu Lal took property in question on rent from Smt. Bishan Devi.
11. Thereafter, learned counsel for the applicants closed evidence on behalf of applicants vide his statement dated 24.11.2008.
12. The non applicant examined himself as RW-1. RW-1 Shri Nand Gopal Bachhas has tendered his affidavit, which is Ex.R-1. He has deposed that he had filed a petition for grant of Probate in respect of Will dated 04.02.1984, Probate certificate was issued on 08.07.2005 and certified copy of Probate certificate is Ex.RW-1/1. The Will was executed, certified copy of Will is Ex.RW-1/2, site plan of the suit property is Ex.RW-1/3. Hira Lal died in the year 1946, certified copy of his death certificate is Ex.RW-1/4. Shri Mohan Lal died in 1984 and his death certificate is Ex.RW-1/5 and Smt. Bishan Devi died on 15.02.1985 and her death certificate is Ex.RW-1/6. In cross examination he admitted that Shri Bulaki Dass had three sons namely Nathu Mal, Heera Lal and Hem Chand. Shri Bulaki Dass had not executed any Will. He also admitted that Smt. Bishan Devi, Manno Devi and Dhanno Devi are daughters of Heera Lal. Shri Heera Lal had not executed any Will in favour of his mother. He denied that after the Rakesh Kumar Vs. Nand Gopal Bachhas -: 7 :- death of Heera Lal, his all three daughters became co-owners of the property.
13. Thereafter, learned counsel for non applicant closed evidence on behalf of non applicant vide his statement dated 30.04.2009.
14. I have heard Shri K.C. Malhotra Advocate, learned counsel for applicants and Shri S.D. Ansari Advocate learned counsel for non applicant. I have also carefully gone through material on record. My issuewise findings on the above issues are as under:-
ISSUE NO.1
15. Learned counsel for the applicants submitted that Shri Nathu Mal, father of the deceased was owner of the property in question, who permitted his brother in law Shri Chandu Mal to occupy two rooms, a barasati and a combined toilet block of property No.3249, Lal Darwaja, Bazar Sita Ram, Delhi and the applicants are lawful owners of the said portion.
16. Learned counsel for the applicants also urged that non applicant had filed a petition under Section 372 of Indian Succession Act whereas provisions of Section 276/278 Indian Succession Act are applicable. He also pointed out that time of death of deceased was not mentioned in the petition, place of abode of deceased was also not mentioned in the petition. The Will Ex.Pw-1/2 is in respect of the entire Rakesh Kumar Vs. Nand Gopal Bachhas -: 8 :- property whereas a partition deed dated 30.03.1931 was executed and the deceased had 1/3rd share. He further submitted that Smt. Manno Devi was co-owner of the property in question and the children of Smt. Manno Devi were not impleaded as party.
17. On the other hand, learned counsel for the non applicant submitted that applicants have no right or locus standi to move the present application as the applicants are tenants in the premises in question. The non applicant had filed a petition for initiating eviction proceedings before the Competent Authority (Slum), which was granted and the non applicant has filed a petition for eviction before Addl. Rent Controller, Delhi, which is pending.
18. Section 263 of the Indian Succession Act lays down the grounds under which the grant of probate / Letters of Administration may be revoked or annulled. It reads as under:-
"263. Revocation or annulment for just cause.-The grant of probate or letters of administration may be revoked or annulled for just cause.
Explanation- Just cause shall be deemed to exist where-
(a) the proceedings to obtain the grant were defective in substance; or
(b) the grant was obtained fraudulent by making a false suggestion, or by concealing from the Court something material to the case; or
(c) the grant was obtained by means of an untrue Rakesh Kumar Vs. Nand Gopal Bachhas -: 9 :- allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or
(d) the grant has become useless and inoperative through circumstances; or
(e) the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect."
19. A perusal of Section 263 of the Act, would clearly show that it is necessary to cite parties who would otherwise had an interest in the succession to the estate of the deceased. That would naturally include all the heirs of the deceased. For determining whether a party is necessary or proper in the Probate proceedings it should be assumed that the testator had died intestate. A person applying revocation of Probate or Letters of Administration must have an interest in the estate of the deceased, assuming that the deceased died intestate.
20. In case titled as George Anthony Harris Vs. Millicent Spencer reported as AIR 1933 Bombay 370, it was held that a person applying for revocation for the grant must show that he has an interest in the alleged Will i.e. in the estate of the deceased disposed of by the alleged Will. There must be some interest and even the slightest interest is sufficient to apply for revocation.
Rakesh Kumar Vs. Nand Gopal Bachhas -: 10 :-
21. The Division Bench of Hon'ble High Court of Calcutta in case Sadanand Pyne Vs. Harinam Sha and Anr. reported as AIR 1950 Calcutta 179 has observed that in order to have the locus standi to apply for revocation of the probate, a person must have an interest in the estate of the deceased presuming he had died intestate.
22. In another case titled as Smt. Sima Rani Mohanty Vs. Pushpa Rani reported as AIR 1978 Calcutta 140, it was held that any interest, however, slight and even the bare possibility of an interest is sufficient to entitle a person to make an application for revocation.
23. In case titled as Dharam Devi & Ors. Vs. Bishamber Nath reported as ILR (1971) II Delhi 661, it was held that the appellants are not the legal heirs of the testator and had no interest in the property bequeathed under the will. It was held that the appellants had no locus standi to ask for the revocation of the probate.
24. In another case titled as R.N. Gupta & Ors. Vs. State reported as 1995 Rajdhani Law Reporter 474, it was held that an application for revocation lies only if the applicant had a share in the assets of the deceased if later had died intestate.
25. A similar question cropped up in case titled as In Re: P.D. Rajan reported as AIR 1996 Madras 318. In the said case the applicant was neither the beneficiary nor the person having any right over the estate of the deceased. He only claimed to be neighbour of Rakesh Kumar Vs. Nand Gopal Bachhas -: 11 :- the testatrix and claimed that he was brought up by testatrix and her husband. It was held that there should be some relationship for the person who claims revocation. It must also be shown that such an application should have been filed by a person having some interest in the testator's estate at least in a slight manner. Bringing up a boy belonging to their native place, even if true, cannot confer any right to the boy in the estate of persons who have brought up the boy.
26. In the instant case, admittedly, applicants are not the legal heirs of the testatrix, Smt. Bishan Devi. The applicants have no interest in the property of the deceased. The applicants do not claim to be blood relations of the deceased, the applicants are not beneficiaries in the Will and the applicants are not the legal heirs of the testatrix Smt. Bishan Devi. According to the applicants their predecessor Shri Chandu Mal, who was brother in law of the original owner Shri Nathu Mal was permitted to occupy portion of the property in question. The Judgment in P.D. Rajan's case (supra) squarely applies to the facts of the present case. Thus the applicants have no locus standi to move application for revocation of Letters of Administration, granted to the non applicant. Accordingly, issue No.1 is decided in favour of the non applicant and against the applicants.
ISSUE NO.2
27. In view of my findings on issue No.1, the applicants have no locus standi to move the present application. Hence, it would be exercise in futility to decide this issue. Issue No.2 is disposed of accordingly.
Rakesh Kumar Vs. Nand Gopal Bachhas -: 12 :- ISSUE NO.3 (RELIEF)
28. In view of the foregoing discussion and my findings on issue No.1, the applicants have no locus standi to move the application under Section 263 of the Indian Succession Act for revocation of cancellation of Letters of Administration granted to the non applicant in PC No. 206 / 02. Accordingly, the application for revocation of letters of administration is dismissed. File be consigned to Record Room.
Announced in open Court (V.P. VAISH)
on this 13th day of July 2009 DISTRICT JUDGE-II
(NORTH) DELHI
Rakesh Kumar Vs. Nand Gopal Bachhas