Delhi District Court
Smt. Usha Kamra vs Shri Chander Prakash (Now Deceased) on 18 December, 2021
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQs)
TIS HAZARI COURTS, DELHI.
Misc DJ No. 411/2017
1. Smt. USHA KAMRA
2. Smt. REKHA DUA
....PETITIONERS
VERSUS
Shri CHANDER PRAKASH (NOW DECEASED)
THROUGH LEGAL HEIRS
.......RESPONDENTS
APPEARANCE : Shri Mayank Dawar, counsel for applicants
Shri Pradeep Kumar and Shri Rishi Lakhanpal counsel for respondents
JUDGMENT
1. In the above titled proceedings under Section 263 of the Indian Succession Act for revocation of probate granted by the learned predecessor of this court on 21.04.2003 in respect of Will dated 23.02.1963 of Late Shri Jiwan Dass, the probate petitioners (respondents herein) filed application dated 31.07.2017 under Order VII Rule 11 CPC, which is under consideration herein. Reply to the application was filed by the revocation applicants. I heard learned counsel for both sides.
2. The circumstances relevant for the present purposes are as follows.
Misc DJ No. 411/2017 Page 1 of 7 pages Smt Usha Kamra vs. Chander Prakash (deceased) through LRs 2.1 During his lifetime, Shri Chander Prakash (predecessor of the applicants under Order VII Rule 11 CPC) filed a petition for grant of probate of Will dated 23.02.1963 executed by Shri Jiwan Dass, who passed away in 1964. Along with the probate petition, Shri Chander Prakash filed list of relatives naming himself, his two sisters and legal heirs of his brother Shri Gulshan Rai only. The said probate petition was allowed by the predecessor of this court by way of judgment dated 21.04.2003, thereby granting Letters of Administration in respect of the said Will in favour of Shri Chander Prakash.
2.2 Subsequently, by way of application dated 21.04.2015, Shri Sunil Dawar, Smt. Usha Kamra and Smt. Rekha Dua sought revocation of the said Letters of Administration, claiming that Shri Chander Prakash had concealed names of six more legal representatives of Shri Jiwan Dass and had thus played fraud on the court to obtain the Letters of Administration. The revocation applicants also pleaded in details that the Will of Shri Jiwan Dass, propounded by Shri Chander Prakash is a forged and fabricated document for reasons described in the application. The revocation applicants also pleaded the circumstances reflecting that a fictitious person was produced in the witness box before predecessor of this court. Further, the revocation applicants also pleaded that the shop in respect of which Letters of Administration were granted was earlier occupied by a tenant who was paying rent to the father of the revocation applicants and after death of father, to the mother of the Misc DJ No. 411/2017 Page 2 of 7 pages Smt Usha Kamra vs. Chander Prakash (deceased) through LRs revocation applicants and thereafter to the applicant Shri Sunil Dawar (who later withdrew himself from array of revocation applicants vide order dated 10.05.2016 of my learned predecessor); that Shri Sunil Dawar received a notice dated 28.04.2014 of an earlier revocation application filed by his brother Shri Sanjeev Dawar, which revocation application was dismissed in default in January 2015; that prior to that, the revocation applicants were not aware about the grant of Letters of Administration as their relations with the remaining legal heirs were strained; and that the present applicants Smt. Usha Kamra and Smt Rekha never received any notice of the probate proceedings.
2.3 In their application under Order VII Rule 11 CPC, the legal representatives of Shri Chander Prakash sought rejection of the revocation application on the ground that the revocation application is time barred because the citation of the probate petition was published in the newspaper dated 30.09.2000 and 01.02.2005 and the limitation period prescribed vide Article 100 of the Limitation Act is one year or in the alternative, vide Article 137 of the Limitation Act is three years, whereas the revocation application was filed in the year 2015; that the revocation applicants had full knowledge of the probate case as their brother Shri Sanjeev Dawar also filed a revocation application which was dismissed in default on 21.01.2015 and counsel for the present revocation applicants and the tenant Shri Nanak Chand was same counsel.
Misc DJ No. 411/2017 Page 3 of 7 pages Smt Usha Kamra vs. Chander Prakash (deceased) through LRs 2.4 In reply to the application under Order VII Rule 11 CPC, the revocation applicants reiterated that the probate petition filed by Shri Chander Prakash was an act of conspiracy to deprive the remaining legal representatives of their rightful share. The revocation applicants reiterated the details of the fraud allegedly played by Shri Chander Prakash. The revocation applicants also pleaded that since their existence was fraudulently concealed from the court and they were kept in dark at the time of obtaining Letters of Administration, vide Section 17 of the Limitation Act, the application for revocation of probate is not barred by limitation in the present case; that since they are not on talking terms with Shri Sanjeev Kumar Dawar, they were not aware about the revocation application filed by him. Therefore, according to the revocation applicants, their application is not barred by time.
3. During arguments, learned counsel for the applicants under Order VII Rule 11 CPC contended that the revocation application filed in the year 2015 is time barred because the revocation applicants were aware of the grant of Letter of Administration in the year 2011 when the eviction petition was filed against the tenant. It was also argued that the probate judgment being judgment in rem, the limitation period for filing revocation application has to commence from the year 2003 when the Letters of Administration were granted. In support of his arguments, learned counsel for the applicants under Order VII Rule 11 CPC placed reliance on the judgments of the Hon'ble Supreme Court of India in the case of Lynette Fernandes vs Gertie Mathias, 2017 (2) TVT 742 Misc DJ No. 411/2017 Page 4 of 7 pages Smt Usha Kamra vs. Chander Prakash (deceased) through LRs SC and Ramesh Nivrutti Bhagwat vs Dr. Surendra Mohan Parakhe, Civil Appeal No. 1399 of 2010, decided on 04.10.2019.
4. On the other hand, learned counsel for the revocation applicants argued that according to their pleadings, they came to know about grant of Letters of Administration only in the year 2013 when the tenant was evicted, so the revocation application filed in the year 2015 is within prescribed period of limitation.
5. To begin with, both the judicial precedents cited on behalf of the applicants under Order VII Rule 11 CPC are distinguishable from the present case insofar as in neither of those cases the revocation applications alleged fraud and neither of those cases pertained to rejection of the revocation application under Order VII Rule 11 CPC.
6. In contrast, as mentioned above, the revocation applicants have pleaded not just fraud played on the court by concealing their existence but they have also pleaded in details the circumstances reflecting that a fictitious person was produced during trial before the learned predecessor of this court. The revocation applicants have specifically pleaded in their application that the alleged Will of Shri Jiwan Dass and signatures of the witness are completely different.
7. In view of specific allegation of the revocation applicants that the alleged Will is a forged document, concealment of Misc DJ No. 411/2017 Page 5 of 7 pages Smt Usha Kamra vs. Chander Prakash (deceased) through LRs their existence by Shri Chander Prakash in the probate petition becomes significant in the sense that it cannot be said that even if impleaded, the revocation applicants would not have been able to assist the court in deciding the genuineness of the Will.
8. Therefore, the principle that probate judgment is a judgment in rem cannot be read to ignore a possible fraud played on the court by not disclosing all interested parties. Admittedly, both revocation applicants are legal heirs of Shri Jiwan Dass, in respect of whose Will the Letters of Administration were got issued by Shri Chander Prakash. Also admittedly, neither of the revocation applicants was named in the array of parties to the probate petition.
9. Then comes the question as to when the revocation applicants became aware of the grant of Letters of Administration. According to the revocation applicants, they became aware about the grant of Letters of Administration only in January 2015, whereas according to the applicants under Order VII Rule 11 CPC, the revocation applicants became aware of the grant of Letters of Administration in the year 2000 and also in 2005. It is settled legal position that while dealing with an application under Order VII Rule 11 CPC the court cannot travel beyond plaint in the sense that plaintiff cannot be deprived of an opportunity to prove his case as pleaded in the plaint. In the present case also, as regards the date of knowledge of grant of Letters of Administration, the revocation applicants cannot be denied an opportunity to prove their case.
Misc DJ No. 411/2017 Page 6 of 7 pages Smt Usha Kamra vs. Chander Prakash (deceased) through LRs
10. Section 17 of the Limitation Act contemplates that where an application is based upon fraud of the respondent, the period of limitation shall not begin to run until the applicant has discovered the fraud. As mentioned above, while dealing with an application under Order VII Rule 11 CPC, this court shall not traverse beyond the pleadings of the applicants that they became aware of the grant of Letters of Administration in January 2015 only as their relations with the remaining legal heirs were strained and the revocation application was filed on 21.04.2015, so the same is within the prescribed period of limitation according to the applicants. However, it would be a matter of trial to test the claim of the applicants under Order VII Rule 11 CPC that the applicants of the revocation application were aware about the grant of Letters of Administration way back in the year 2000 or 2005.
11. In view of above discussion, I find no merit in the application seeking rejection of the application for revocation of Letters of Administration. The application dated 31.07.2017 under Order VII Rule 11 CPC is dismissed.
Digitally signed by GIRISH GIRISH KATHPALIA
Announced in the open court KATHPALIA Date: 2021.12.18
on this 18th day of December, 2021 15:54:06 +0530
(GIRISH KATHPALIA)
Principal District & Sessions Judge (HQs)
Tis Hazari Courts, Delhi
Misc DJ No. 411/2017 Page 7 of 7 pages
Smt Usha Kamra vs. Chander Prakash (deceased) through LRs