Delhi District Court
Gramin Gaushala (Regd.) vs State on 28 August, 2009
-: 1 :-
IN THE COURT OF SHRI V.P. VAISH, DISTRICT JUDGE-II CUM
ADDL. SESSIONS JUDGE (NORTH) TIS HAZARI COURTS, DELHI
MPC No. 85 / 2006
Date of institution: 02.12.2004
Judgment reserved on: 18.08.2009
Judgment pronounced on: 28.08.2009
Gramin Gaushala (Regd.)
Through its Secretary Sh. Ranbir Singh,
Village Bawana,
Delhi-110039 .........Petitioner
Versus
State ... Respondent
Application for revocation of Letter of Administration dated
28.04.2001 issued vide order dated 30.03.2001, under
Section 264 of Indian Succession Act by and on behalf of
Shri Shyam Sunder.
-------------------
JUDGMENT
This is a petition under Section 264 of the Indian Succession Act, 1925 for revocation of Letter of Administration dated 28.04.2001 issued vide order dated 30.03.2001 filed by Shri Shyam Sunder son of late Shri Rameshwar Dayal.
2. The facts germane to the present application are that non- applicant Gramin Gaushala (Registered) had filed a petition under Section 278 of Indian Succession Act for grant of Letters of Administration in respect of registered Will dated 17.02.1971 executed by deceased Pandit Jiya Ram son of late Shri Mam Chand. Notice of Gramin Gaushala Vs. State -: 2 :- the petition was issued to the respondent State through Collector. Citation was published in the newspaper 'National Herald'. The petitioner had filed affidavit stating that deceased left behind no legal heir. Vide Judgment dated 30.03.2001 my learned predecessor granted Letters of Administration in respect of Will Ex.PW-6/2 with a copy there of.
3. The applicant Shyam Sunder has moved the instant application on the ground that proceedings to obtain Letters of Administration were defective in substance, Shri Ranbir Singh had no locus standi to file the proceedings in the light of the Civil Suit No. 234/1995 titled as Shyam Sunder Vs. Baba Lal Chand, said suit was contested by Shri Pratap Singh instead of said Ranbir Singh. Letters of Administration was obtained fraudulently by making false representation and concealment of material facts, Letters of Administration has become useless and inoperative through circumstances, as the revenue authority has not mutated the property on the basis of same. The Will filed by the petitioner is forged, fabricated and concocted, same was not executed by deceased. In the aforesaid Civil Suit No. 234/95, the said Will was treated as forged, ingenuine and not executed by deceased. The non applicant had not proved the Will according to law, death certificate of deceased was not genuine. The applicant was not impleaded as a party and the petition was bad for non-joinder of parties.
4. The non applicant has contested the application by filing Gramin Gaushala Vs. State -: 3 :- reply on the grounds interalia that the application does not disclose any just cause as contemplated under Section 263 of the Indian Succession Act, the applicant has no locus standi to file the present application as the applicant is not the person who according to the rules for distribution of estate is entitled to the estate of deceased Pandit Jiya Ram. The application is barred by limitation. On merits, the non-application has denied the allegations made in the application, it is stated that applicant Shyam Sunder has no right, title or interest in the estate of deceased and he is no aggrieved in any manner by order dated 30.03.2001. It is denied that Letters of Administration is defective in any manner. The non applicant Gramin Gaushala is duly registered body and Charitable / religious institution for the service of cows. The petition was filed through Shri Ranbir Singh, who was Secretary of the non applicant society. The Suit No. 234/95 has no concern with the present case, the said suit was filed by applicant Shyam Sunder in his personal capacity of late Shri Baba Lal Chand. It is also denied that in the said Suit the Will dated 18.02.1971 was treated as forge or not genuine as alleged in the application.
5. The application filed rejoinder to the reply filed on behalf of non applicant, denied the allegations made in the reply and reiterated the plea taken in the application.
6. On the pleadings of parties following issues were framed by my learned predecessor on 21.10.2005:-
1. Whether the letter of administration granted to the non Gramin Gaushala Vs. State -: 4 :- applicant / petitioner pursuant to the judgement dated 30/3/2001 is liable to be revoked/cancelled in view of the objections raised in the revocation petition? OPA
2. Whether the revocation petition is barred by limitation?
OP-Non applicant.
3. Relief.
7. In support of his case, the applicant has examined as many as two witnesses. AW-1, Shri Shyam Sunder is the applicant, he has tendered his affidavit, which is Ex.P-1. By way of his affidavit, he has deposed in terms of his application. In cross examination he stated that he filed Suit No. 404/06 titled as Shyam Sunder Vs. Baba Lal Chand, Gramin Gaushala was defendant through Baba Lal Chand, said suit is pending. The certified copy of said plaint is Ex.AW-1/DX. He denied that he never resided in the property. He was not tenant in the said property. He admitted that deceased Jiya Ram was Brahamin by caste and was not related to him. He admitted that he filed objections before MCD against transfer of property on the basis of probate. He denied that deceased Jiya Ram executed the Will.
8. AW-2, Shri Tika Ram has deposed that deceased Jiya Ram was Brahmin by caste, he sued to teach Hindi Mundi language and he used to write in Hindi Mundi language. He died on the next day of Janmasthmi in the year 1978 at Dharamshala in Bawana, Delhi. Deceased constructed Dharamshala in the year 1940-41. Originally Shri Rameshwar Dayal used to live along with his family in the Gramin Gaushala Vs. State -: 5 :- Dharamshala. After the death of Rameshwar Dayal, family members of Rameshwar Dayal used to serve Jiya Ram. He stated that deceased Jiya Ram made a Will in favour of Gaushala, probate property and Gaushala are separate properties and both the properties are located at a distance of 250 meters. Mark X is the receipt executed by Gramin Gaushala and the photograph affixed thereon is of deceased Jiya Ram. Photocopy of stone of Dharamshala is mark Y. In cross examination he denied that deceased Jiya Ram knew Urdu. He admitted that there were tenants in Dharamshala apart from the family members of Rameshwar Dayal. Children of Rameshwar Dayal used to look after Pandit Jiya Ram. The last rites of Jiya Ram were performed by Rameshwar Dayal and his family.
9. Thereafter, learned counsel for the applicant closed evidence on behalf of applicant vide his statement dated 10.10.2006.
10. The non applicant examined Shri Kali Ram, Secretary of non-applicant Society as RW-1. He has tendered his affidavit, which is Ex.R-1. By way of his affidavit he has deposed in terms of reply to the application. He has proved the copy of resolution authorizing him to sign, verify, institute and give evidence as EX.RW-1/1. In cross examination he stated that Shyam Sunder had not filed any case against Gaushala. He denied that Shyam Sunder had filed case against Gramin Gaushala, Bawana in the year 1995. He could not tell whether mutation had taken place on the basis of Probate. He denied that date of death of Jiya Ram was wrongly mentioned in the death Gramin Gaushala Vs. State -: 6 :- certificate. He also denied that Jiya Ram was looked after by Shyam Sunder and his brother or at the time of death of Jiya Ram, Shyam Sunder and his brother were in possession of the property. He also denied that Probate proceeding was filed on the basis of forged Will.
11. Thereafter, learned counsel for the non applicant closed evidence on behalf of non applicant on 24.11.2006.
12. I have heard Shri R.K. Bindal Advocate, learned counsel for applicant and Shri Rishi Prakash 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.2
13. I will take up issue No.2 first as it is a legal issue. Learned counsel for the applicant urged that no period of limitation is prescribed for filing an application for revocation. In support of his submission, he has relied upon Judgment in case titled as Ms. Radhika Khanna Vs. State reported as 91 (2001) Delhi Law Times 96.
14. On the other hand, learned counsel for non-applicant contended that the application for revocation of Probate / Letters of Administration is governed by Article 137 of the Limitation Act and application could be filed within three years from the date of grant of Probate / Letters of Administration. He has relied upon Judgments in case titled as Hari Narain (deceased) by LRs Lalit Kumar Sharma & others Vs. Subhash Chander and others reported as AIR 1985 Punjab & Haryana 211 and case titled as Ramesh Nivrutti Bhagwat Vs. Dr. Gramin Gaushala Vs. State -: 7 :- Surnendra Manohar Parakhe reported as AIR 2001 Bombay 461.
15. I have carefully considered the submissions made by learned counsel for both the parties. I have gone through the Judgment in Radhika Khanna's case (supra), relied upon by learned counsel for the applicant. In the said case it was held that if Probate was obtained by playing fraud on the Court, same is nullity and could be challenged at any stage and Court could recall it even under its inherent powers.
16. The applicability of Article 137 of the Limitation Act came up for judicial scrutiny before the Apex Court in case titled as Kerala State Electricity Board Vs. T.P. Kunhaliumma reported as AIR 1977 S.C.
282. In the said case question was, whether the residuary Article 137 of the Limitation Act would apply to the proceedings filed under Sections 10 and 16(5) of the Telegraph Act, 1885 read with Section 51 of the Electricity Act, 1910, relating to the claim of compensation. It was held that:-
"The conclusion we reach is that Article 137 of the 1963, Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two Judges Bench of this Court in Athani Municipal Council case, AIR 1969 SC 1335 and hold that Art. 137 of the 1963, Limitation Act is not confined to application contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a Court. The petition was one contemplated by the Telegraph Act, for judicial decision. The petition is an application falling within the scope of Art. 137 of the 1963 Act."
Gramin Gaushala Vs. State -: 8 :-
17. A similar question cropped up before Hon'ble Punjab & Haryana High Court in Hari Narain's case (supra). In the said case, it was held that provisions of Article 137 clearly governs the situation and the application could be filed within three years from the date when the right to apply for the setting aside of the probate accrues. In Ramesh Nivrutti Bhagwat's case (supra), it was held that application for revocation of grant is covered by Article 137 of the Limitation Act, which requires the application to be filed within three years from the date when right to apply accrues.
18. A Division Bench of our own Hon'ble High Court in case titled as S.S. Lal Vs. Vishnu Mitter Govil reported as 112 (2004) Delhi Law Times 877 (DB), observed that application filed for grant of probate or letters of administration, no right is asserted or claimed and the applicant only seeks recognition from the Court to perform a duty. The cause of action in such application arises when Probate or Letters of Administration has been granted. It was held that in cases of revocation of Probate or Letters of Administration provisions of Article 137 of the Limitation Act would apply and not vice-versa.
19. In a recent case, titled as Ram Chander Talwar & Ors. VS. Devender Kumar Talwar & Ors. Reported as 153 (2008) Delhi Law Times, our own Hon'ble High Court, relied upon the Judgment in S.S. Lal's case (supra), and it was held that Article 137 of the Limitation Act is not applicable for application for grant of Letters of Administration.
Gramin Gaushala Vs. State -: 9 :- However, Article 137 of the Limitation Act shall come into play where revocation of Letters of Administration is sought.
20. Section 3 of the Limitation Act provides that subject to provisions contained in Section 4 to 24, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. In view of law laid down by the Division Bench of our own Hon'ble High Court in S.S. Lal's case (supra) and in Ram Chander Talwar's case (supra), in my view, provisions of Article 137 of the Limitation Act is applicable to the application for revocation of Letters of Administration.
21. It is pertinent to mention here that the applicant has moved an application under Section 5 of the Limitation Act for condonation of delay in filing the application for revocation. The ground for condonation of delay, taken by the applicant, is that applicant received certified copy of proceedings of Probate on 02.12.2004 and came to know that proceedings were defective in substance and the order is liable to be set aside. It is settled law that for condonation of delay, the applicant is required to satisfactorily explain each day's delay. In the instant application, it is not clear when the applicant applied for certified copy of proceedings of Probate. No sufficient explanation has been assigned for condonation of delay and there is no ground for condonation of delay. Hence, the application for condonation of delay is dismissed.
22. In the present case, Letters of Administration was granted to the non-applicant on 30.03.2001. The present application for Gramin Gaushala Vs. State -: 10 :- revocation of Letters of Administration was filed on 02.12.2004. Thus the application was filed beyond the prescribed period of limitation of three years. Hence, I hold that application for revocation is barred by limitation and issue No.2 is decided in favour of non-applicant and against the applicant.
ISSUE NO.1
23. At the outset, it may be mentioned that the first and foremost question which comes up for determination is whether the applicant has any locus standi to move the application for revocation.
24. 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 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 Gramin Gaushala Vs. State -: 11 :- 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."
25. On perusal of Section 283 of the Indian Succession Act, it is manifestly clear 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.
26. 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.
27. 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 Gramin Gaushala Vs. State -: 12 :- the estate of the deceased presuming he had died intestate.
28. 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.
29. 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.
30. Out own Hon'ble High Court in case titled as R.N. Gupta & Ors. Vs. State reported as 1995 Rajdhani Law Reporter 474, observed that an application for revocation lies only if the applicant had a share in the assets of the deceased, if later had died intestate.
31. 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 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 Gramin Gaushala Vs. State -: 13 :- 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.
32. In the instant case, admittedly, the applicant is not legal heir of deceased Pandit Jiya Ram. The applicant Shri Shyam Sunder is not related to the deceased, he is not claiming to be blood relation of the deceased. The applicant is not beneficiary in the Will of testator and he has no interest in the property of the deceased. The applicant, Shri Shyam Sunder (Pw-1) in his cross examination has admitted that the deceased was not related to him and he was not tenant in the property. Thus, the applicant has no locus standi to move the present applicant for revocation of Letters of Administration granted to the non-applicant, in view of law laid in the aforesaid Judgments.
33. Since the applicant has no locus standi to move the present application for revocation of Letters of Administration, it is not necessary to discuss the grounds on merits, taken by the applicant. Issue No.1 is decided accordingly.
ISSUE NO.3 (RELIEF)
34. As a result of above discussion and my findings on issue No.1 and 2, the application for revocation of Letters of Administration granted to the applicant vide Judgment dated 30.03.2001 in PC No.91/97, is dismissed. File be consigned to Record Room.
Announced in open Court (V.P. VAISH)
on this 28th day of August 2009 DISTRICT JUDGE-II
(NORTH) DELHI
Gramin Gaushala Vs. State
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Gramin Gaushala Vs. State