Delhi District Court
Shri Akash Dhawan vs State on 1 April, 2008
: 1:
IN THE COURT OF SHRI RAVINDER DUDEJA
ADDL. DISTRICT JUDGE: DELHI.
MPC No. 29/2007
in
PC No. 158/2004
Date of institution : 30.10.2006
Date on which Judgment was reserved for : 17.03.2008
Shri Akash Dhawan,
S/o Sh. O.S. Dhawan,
R/o 64, Ist Floor,
Lajpat Nagar-III,
Delhi - 110 024. ............ Applicant.
Versus
1. State
2. Shri Kewal Dhawan,
S/o Sh. Mukund Lal Dhawan,
R/o 64, Ist Floor,
Lajpat Nagar-III,
Delhi - 110 024.
............ Respondents.
Application for revocation of probate granted
vide Judgment dated 10.5.2005 in Kewan Dhawan
vs. State, PC No.158/04.
--------------
JUDGMENT
1. By this judgment, I propose to decide the following preliminary issue framed by the court vide order dated 15.01.2008, : 2: same being the legal issue:-
"Whether the applicant has no locus standi to file the revocation application? Onus Placed upon Non-applicant."
2. Briefly stated, the facts are that one Sh. Kewal Krishan Dhawan filed a petition for grant of probate of Will of his late brother Shri Krishan Kishore Dhawan stating therein that the deceased was a bachelor and was issue-less. Notice of the petition was given to the mother of the deceased. She filed her no objection in favour of Sh. Kewal Krishan Dhawan. Citation was published in newspaper Indian Express but no one appeared from general public to file any objection. The learned District Judge vide judgment dated 10.05.2005 allowed the petition and granted probate of Will to the petitioner. Now, the revocation petition has been filed by Sh. O.S. Dhawan (brother of Sh. Krishan Kishore Dhawan and Sh. Kewal Krishan Dhawan) through his attorney Sh. Akash Dhawan on various grounds including the ground that the name of the applicant was not mentioned in the list of near relations.
3. Non-applicant Sh. Kewal Krishan Dhawan has filed reply to the revocation petition. He took preliminary objection that the application for revocation has been filed by Sh. Akash Dhawan in his individual capacity and he has no locus standi to file the application for : 3: the reason that at no stage after the death of Shri Krishan Kishore Dhawan, he or his father inherited any property left by him.
4. Arguments have been heard from the learned advocates of the parties. It has been argued by the learned advocate for non applicant that as per the provisions of law, only Class I legal heirs are required to be mentioned in the list of relations to whom the notices of the probate petition are sent. Since neither the applicant nor his father was the heir under Class I category of Hindu Succession Act after the death of Sh. Krishan Kishore Dhawan, so, the question of they being shown in the list of relations does not arise. It is argued that the property devolved upon the mother of Shri Krishan Kishore Dhawan, who was alive at that time and was the only Class I legal heir and therefore that being so, the applicant has no locus standi to file the revocation petition. The argument of learned advocate of applicant is that the applicant is having interest in the estate of the deceased as the deceased has died without executing any Will and the probate has been obtained on the basis of forged and fabricated Will and therefore, applicant has locus standi to apply for the grant of revocation.
5. I have considered the submissions made before me. In the case of Mutukdhari Singh Vs. Smt. Prem Debi & Ors., AIR 1959 Patna 570, it has been held that bare possibility of interest even through remote is sufficient to entitle a person to oppose Will or apply : 4: for revocation of probate. Similarly, in the case of Smt. Sima Rani Mohanti Vs. Puspa Rani Pal AIR 1978 Calcutta 140, the Hon'ble High Court 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. Whether revocation will be granted or not is a different matter, for it would depend on the applicant's proving the Will, which has been probated, to be not genuine etc.
6. Division Bench of Calcutta High Court has held in Sadananda Pyne Vs. Harinam Sha and another, AIR 1950 Calcutta 179 that in order to have the locus standi to apply for revocation of probate, a person must have an interest in the estate of the deceased, supposing he had died intestate. In the case of Arjan Dass Vs. Madan Lal, (1970 RCR 785) (2) Single Judge of Delhi High Court held that a person, who was not an heir of the testator, had no locus standi to challenge the validity of the Will.
7. While dealing with the petition for revocation, the Delhi High Court in the case of Dharam Devi & Ors. Vs. Bishamber Nath, ILR (1971) II Delhi 661, held as under:-
"Succession Act (1925) S. 263-- Revocation of probate -- appellants neither legal heirs of testator nor claiming any right in the property bequeathed under the Will -- appellants : 5: have no locus standi to ask for revocation of probate.
HELD, (on facts) that the appellants in the instant case are not the legal heirs of the testator and have no interest in the property bequeathed under the Will. They have, therefore, no locus standi to ask for the revocation of the probate granted to the respondent."
8. In the case of Mrs. Prabha Bhasin Vs. State, 1989 Rajdhani Law Reporter 113, on the question of impleadment under Order 1 Rule 10 CPC in a petition under Section 372 of the Indian Succession Act, the Hon'ble High Court held that if a Hindu male dies leaving a widow and a daughter (heirs of Class- I in Schedule of H.S. Act) then, brothers and sisters of deceased are not necessary party and Succession Court cannot order their impleadment.
9. The legal position which has emerged is that in order to have the locus standi to apply for revocation of probate, a person must have an interest in the estate of the deceased, supposing he had died intestate. Section 8 of the Hindu Succession Act provides that property of a male Hindu dying intestate shall devolve:
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I then upon the heirs, being the relatives specified in class II of the Schedule;: 6:
( c) ..........."
Section 9 of the Hindu Succession Act provides the order of succession among the heirs specified in the Schedule. As per this Section, among the heirs specified in Schedule those in Class I, shall take simultaneous and to the exclusion of all the other heirs.
10. When the provisions of Section 8 are read with Section 9 and the Schedule, it becomes clear that in the presence of an heir of class I, heirs of class II do not succeed and Class II heirs are excluded totally from the succession.
11. Admittedly in this case, deceased was a bachelor and had died issue-less. At the time of his death, his mother Smt. Bhagwanti Devi was alive. The mother of male deceased falls in the list of legal heirs mentioned in Class I category of the Schedule to Hindu Succession Act. In case of intestacy, she would have inherited the properties of her predeceased son. The brothers of the deceased fall in entry No. II of Class II of the Schedule. Surely, they would not have inherited the estate of the deceased, had he died intestate as their mother was alive. That being so, brothers of the deceased including the applicant did not have any interest in the estate of the deceased at the time of his death as also at the time of filing the petition. Since the applicant or his father are neither the legal heirs of testator Sh. Krishan : 7: Kishore Dhawan nor had any interest in the property bequeathed under the Will, applicant has therefore no locus standi to ask for revocation of probate granted to the non applicant. Preliminary issue is decided accordingly.
12. In view of my findings on the preliminary issue, revocation petition is not maintainable and is, therefore dismissed. File be consigned to Record Room.
( RAVINDER DUDEJA ) ADDL. DISTRICT JUDGE: DELHI.
ANNOUNCED IN THE OPEN COURT ON 01.04.2008. `