Delhi District Court
In The Matter Of Smt. Bhanwari Devi vs . State on 1 May, 2010
In the court of ASHWANI SARPAL, Additional District Judge,
West District, Tis Hazari Courts, Delhi.
In the matter of Smt. Bhanwari Devi vs. State
(PC no.--366/03 decided on 21-5-2004)
Smt. Kamla Devi
-------------- applicant
vs.
Smt. Bhanwari Devi
------------Non applicant
(MPC no. 13/06/05)
Date of institution--20-9-2005
Date of decision-------1-5-2010
(Petition U/S 263 of Indian Succession Act for revocation of
probate granted on basis of Will)
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JUDGMENT:-
Non-applicant Smt. Bhanwari Devi claiming herself to be an adopted daughter of deceased Sh. Teja Ram who died on 14-11-1996 on the basis of his Will dated 3-10-1996 filed a probate petition bearing no.366/03 in the court on 22-10-2003 which was allowed by Sh. J.P. Singh, the then ld. District Judge on 21-5-2004 and the certificate of probate was issued to her in respect of property of deceased bearing no. 95/8, Gali no. 6, Than Singh Nagar, Anand Parbat, Delhi.
MPC no.-- 13/06/05 Page 1/3Applicant Smt. Kamla Devi claiming herself to be the grand daughter of deceased Sh. Teja Ram filed the present petition under section 263 of Indian Succession Act for revocation of the probate granted to non applicant with the averment that she had obtained the probate from the court by concealing true facts and by playing fraud upon the court as well as by misrepresenting the facts. In her petition, applicant described number of facts which create just cause for revocation of probate.
Non applicant denied those allegations in her reply and on the basis of the pleadings following issues were framed by my Ld. Predecessor vide order dated 31-10-2006:
1. Whether there is any just cause for revocation of the letters of administration granted to the non applicant/petitioner vide order dated 21-5-2004.
2. Relief In order to establish her case, applicant Smt. Kamla Devi examined herself as AW-1 and also examined Sh. Gopi Chand as AW-2 whereas non applicant examined herself as RW-4. She also examined four other witnesses namely RW- 1 Sh. Naveen Dutt Sharma, UDC from office of Election Department, Delhi, Sh.H.S. Sharma, Lab Assistant from Govt. Girls Sr. Secondary School as RW-2, Sh. Kailash Chand, Ahlmad from the court of Sr. Civil Judge as RW-3 and Sh.
Sishu Pal Meena from Election Office, Rajasthan as RW-5. I have heard counsel for the parties and gone through the record as well as case laws cited. My decision on above issues is as under;
Issue no. 1:-
Probate/Letter of Administration granted to anyone can be revoked under section 263 on some limited grounds which create just cause. In Banwari Lal Shriniwas vs. Kumari Kusum Bai AIR 1973 M. P. 69 and Mutukdhari Singh vs. Prem Debi AIR 1959 Patna 570, Pritam Dass vs. Nand Ram AIR 1966 Punjab 88, it is held that any interest, however slight and even bare MPC no.-- 13/06/05 Page 2/3 possibility of an interest is sufficient to entitle a person to oppose a testamentary document. 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' as contemplated by illustration (ii) of section 263 of the Act and vitiates the grant. In that situation, applicant is not required to prove that Will is a forgery but is on the grantee to prove that the Will is a valid one. Thus non impleadment of proper or necessary party in the proceeding for obtaining probate constitutes a just cause for revocation of the probate or letter of administration already granted.
There is no dispute of the fact that a suit for possession and damages in respect of property of deceased Sh. Teja Ram was filed by the applicant along with her mother against non applicant and her family members in the court in the year 1998 bearing no. 397/02/98 on basis of Will of deceased dated 13-11-1988. The file of that suit was summoned from the court concerned by the non applicant herself through RW-3. It is also not in dispute that non applicant and others filed their written statement in that suit in the month of September 1998. Non-applicant claimed right on the property of the deceased on the basis of his Will dated 3-10-1996. The question of genuineness and validity of both Wills set up by each party was involved in that civil suit. RW-3 proved that non applicant by moving application Ex. RW3/A on 4-5-2004 in this civil suit took back her original Will dated 3-10-1996 from the record without any notice to applicant.
In the probate/Letter of Administration matters, the limitation of filing the petition is three years under Article 137 of Limitation Act. Supreme Court in Kunvarjeet Singh vs. Kirandeep Kaur 2008 XII AD (SC) 580 also held that probate petition is required to be filed within period of three years from the date when right to sue accrues.
Dispute between parties in respect of property of the deceased on basis of his two separate Wills had already arisen in the year 1998 through a civil suit for possession and damages. Non applicant had already come to know about that suit and Will of the deceased dated 13-11-1988 as propounded by applicant as she opposed the relief claimed by filing her written statement in the MPC no.-- 13/06/05 Page 3/3 month of September 1998 in that suit. Thus the right to sue had already accrued in favour of the non applicant in the year 1998 itself for claiming relief of Probate/Letter of Administration. Non-applicant was required to file her probate petition in the court within three years from that date i.e. atleast by September, 2001 but it was filed on 22-12-2003 beyond the period of limitation. The probate granted to non applicant on basis of time barred petition also constitute a just cause and it is liable to be revoked on this ground as her probate petition should not have been proceeded further. In my view present revocation petition can be allowed also on this ground.
Applicant had filed a suit for possession bearing no. 397/02/98 against the non applicant on the basis of another Will of the deceased dated 13- 11-1988 in respect of same property. Non applicant was contesting that suit and had set up her own Will dated 3-10-1996. The question of determination of genuineness of both the Wills was pending before the civil court. Non applicant took back her original Will dated 3-10-1996 from that suit and filed probate petition no. 366/03 without impleading the applicant. Non impleadment of the applicant was fatal to the probate case and created a just cause to seek revocation of probate granted as she was having an interest in the property of the deceased. Non applicant in her probate petition did not specifically impleaded applicant as a party despite the knowledge that she was relying upon another Will of deceased and had claimed right over his property. Even if it is presumed that applicant had no relation with the deceased Sh. Teja Ram and was not his grand daughter but certainly she had right and interest in his property on the basis of the Will dated 13-11-1988. In view of the above mentioned case laws, applicant was required to be specially impleaded as a party and was required to be issued special citation of the probate petition. The citation published in the newspaper is only meant for general public and not for specific and interested parties. The plea taken by the non applicant that citation was published in the newspaper and the applicant could come to the court to oppose probate case is a baseless argument because applicant was required to be impleaded specifically and was required to be issued specific citation. Non joining of the applicant as a party in the case as well as non issuing of any MPC no.-- 13/06/05 Page 4/3 specific citation create just cause to revoke the probate granted in favour of non-applicant. In this regard reliance can be placed upon case law Annapurna Kumar vs. Subodh Chandra Kumar AIR 1970 Calcutta 433.
Much evidence has been led by the parties to challenge the status of the applicant and the non applicant. Applicant is disputing the status of non- applicant being the adopted daughter of the deceased whereas non applicant challenged the status of applicant being grand daughter of the deceased. Applicant placed on record the eviction decree passed against husband of non- applicant on basis of eviction petition filed by deceased in which husband of non-applicant had accepted his status as of a tenant and there was no defence that he was living in the house in the capacity of son in law of the deceased as his wife was the adopted daughter of the deceased. Non-applicant also has failed to bring on record any document of her adoption by the deceased. On the other hand, non-applicant brought on record school certificate to show the name of deceased as her father as well as record of election department to point out that applicant had no concern with the deceased. The record of election department, ration card, school certificate etc. contains some discrepancies but I am of the view that this dispute of relationship of parties with the deceased is not required to be decided in this proceeding. Even if for the sake of arguments it is presumed that applicant had no relation of any kind with the deceased but still she was claiming decree of possession and damages in respect of property of deceased on basis of his Will so her bare possibility of interest in the estate of deceased was sufficient to implead her in the probate case and there was no requirement even to show her relation with the deceased. Despite having knowledge of this fact, an action of non-applicant in non impleading her in her probate petition and non issuing of any specific citation to her amounts not only playing fraud upon the court but also constitute misrepresentation and concealment of material facts. Mere mentioning of pendency of civil suit in probate petition itself was not sufficient compliance as applicant was required to be impleaded as necessary party specifically. Moreover when in the civil court, question of genuineness and validity of both the Wills was involved and civil court had to determine the same then there was also no necessity to file any MPC no.-- 13/06/05 Page 5/3 separate probate petition by the non-applicant. Accordingly it is held that non joining of applicant in probate petition amounts to a just cause and is sufficient to revoke the probate granted to non-applicant. This issue is decided in favour of applicant and against non-applicant.
Issue no. 2 (Relief):-
In view of above discussions, present petition is allowed. Probate granted to non-applicant Smt. Bhanwari Devi in PC no.366/03 by court of Sh. J.P. Singh, the then ld. District Judge vide order dated 21-5-2004 is hereby revoked. Non-applicant is directed to deposit original certificate of probate issued to her on 29-11-2004 within fifteen days in the court. Keeping in view the circumstances of the case as well as act of non-applicant in concealing the material facts and playing fraud upon the court in obtaining probate, she is burdened with cost of Rs. 10,000/- payable to applicant Smt. Kamla Devi. File be consigned to record room.
. (ASHWANI SARPAL)
Dated-1-5-2010 ADDITIONAL DISTRICT JUDGE
MPC no.-- 13/06/05 Page 6/3