Patna High Court - Orders
Sudhir Kumar Singh vs Smt. Sudhira Jha on 3 August, 2022
Author: Nawneet Kumar Pandey
Bench: Nawneet Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.420 of 2020
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Sudhir Kumar Singh Son of Nageshwar Singh Resident of Village- Narma,
P.S.- Alinagar, District- Darbhanga.
... ... Petitioner
Versus
1.1. Sri Dharnidhar Jha Husband of Late Smt. Sudhira Jha Resident of
Village/Post- Kasraur, P.S.- Ghanshyampur, District- Darbhanga.
1.2. Sri Sameer Ranjan Son of Late Smt. Sudhira Jha Resident of Village/Post-
Kasraur, P.S.- Ghanshyampur, District- Darbhanga.
1.3. Sri Nikhil Ranjan Son of Late Smt. Sudhira Jha Resident of Village/Post-
Kasraur, P.S.- Ghanshyampur, District- Darbhanga.
1.4. Sri Mukul Ranjan Son of Late Smt. Sudhira Jha(under the guardianship of
his father Sri Dharnidhar Jha) Resident of Village/Post- Kasraur, P.S.-
Ghanshyampur, District- Darbhanga.
2. Shashank Shekhar Mishra Son of Badri Narayan Mishra Resident of Village-
Kasraur, P.S.- Ghnashyampur, District- Darbhanga.
3. Sudhanshu Shekhar Mishra @ Prashant Shekhar Mishra Son of Badri
Narayan Mishra Resident of Village- Kasraur, P.S.- Ghnashyampur, District-
Darbhanga.
... ... Respondents
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Appearance :
For the Petitioner/s : Mr. Sanjay Singh, Sr. Adv.
Ms. Aprajita, Adv.
Mr. Animesh Kumar, Adv.
Mr. Brisketu Sharan Pandey, Adv.
For the Respondent/s : Mr.Ambuj Nayan Chaubey, Adv.
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CORAM: HONOURABLE MR. JUSTICE NAWNEET KUMAR
PANDEY
CAV ORDER
10 03-08-2022The present petition has been filed under Article 227 challenging the order dated 14.01.2020 passed by the District Judge, Darbhanga in Probate Revocation Case No. 17/2019 whereby the learned District Judge rejected the petition dated 08.11.2019 filed on behalf of the petitioner under Order VII Rule 11 of the Code of Civil Procedure, 1908, hereinafter Patna High Court C.Misc. No.420 of 2020(10) dt 03-08-2022 2/10 referred to as 'the Code'.
Brief facts of the case is that petitioner Sudhir Kumar Singh, son of Sri Nageshwar Singh, filed Probate Case No. 07/2018 on the basis of registered will deed dated 15.05.1966, executed by his grandfather, late Shatrughan Singh. It was mentioned in the probate petition that after executing the deed of will, the testator handed over it to the petitioner but that was destroyed. Thereafter, the petitioner obtained certified copy of that deed and applied for probate. The final order was passed and will was probated, vide order dated 17.12.2018 and a certificate was issued of the probate of will on 20.12.2018. Thereafter, the respondent No. 1, Smt. Sudhira Jha, (now has died and substituted by her heirs and legal representatives) filed revocation petition on 13.09.2019, which was registered as revocation case No. 17/2019 under Section 263 of the Indian Succession Act, 1925, hereinafter referred to as 'the Act'. The applicant of the revocation petition, Late Sudhira Jha, mentioned that the will deed dated 25.05.1966 was forged, fabricated and fraudulent. She has purchased the land which is subject matter of will from Nageshwar Singh, father of the petitioner through two sale deeds dated 04.05.1981 and 06.05.1982 in the name of Smt. Neelam Kumari who is her Patna High Court C.Misc. No.420 of 2020(10) dt 03-08-2022 3/10 Benamidar. Smt. Sudhira Jha and Smt. Neelam Kumari compromised the case in Lok Adalat and it was held that the property was purchased by Sudhira Jha.
Learned senior counsel, Sri. Sanjay Singh, for the petitioner has submitted that respondent Sudhira Jha cannot file a petition for revocation of the probate order granted in favour of the petitioner since Sudhira Jha is stranger to the family. His second submission is that the said transaction was barred by the provisions of Benami Transaction (Prohibition) Act, 1988.
In support of his submission No. 1, he has relied upon a decision of this Court, Smt. Dular Kuer vs. Smt. Kesar Kuer and others, reported in AIR 1964 Patna 518 and submitted that in that case it was held that the person having no possible chance of succeeding to testator's estate cannot file an application for revocation of probate on the ground of absence of the citation. Learned counsel has also cited a decision reported in (2007) 8 Supreme Court Cases 506 Sunil Gupta vs. Kiran Girhotra and others and submitted that in a probate case impleadment of transferee to the probate petition is not required.
In reply, the learned senior counsel for the respondents, Sri Kamal Nayan Chaubey, has submitted that Patna High Court C.Misc. No.420 of 2020(10) dt 03-08-2022 4/10 Section 263 of 'the Act' makes a provision of revocation or annulment of the order of probate for just cause. From bare perusal of this Section it transpires that the probate may be revoked or annulled for just cause. It has not been mentioned in that section as to who is entitled to apply for the revocation or annulment. Whenever Court feels that the revocation or annulment is necessary for just cause that can be revoked or annulled. Section 263 of 'the Act' reads as under:-
"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 fraudulently 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 through circumstances; or
(e) the person to whom the grant was made has wilfully 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.
Patna High Court C.Misc. No.420 of 2020(10) dt 03-08-2022 5/10 Illustrations
(i) The Court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to have been cited.
(iii) The will of which probate was obtained was forged or revoked.
(iv) A obtained letters of administration to the estate of B, as his widow, but it has since transpired that she was never married to him.
(v) A has taken administration to the estate of B as if he had died intestate, but a Will has since been discovered.
(vi) Since probate was granted, a latter Will has been discovered.
(vii) Since probate was granted, a codicil has been discovered which revokes or adds to the appointment of executors under the Will.
(viii) The person to whom probate was, or letters of administration were, granted has subsequently become of unsound mind."
The learned counsel for the respondent has submitted further that explanation (III) of Section 263 of 'the Act' makes it clear that the probate on a will may be revoked if it was obtained by forgery. It has not been mentioned as to on whom petition it can be revoked. Any person can brought the fact to the notice of the Court that the probate on will was obtained by forgery. In support of his submission he relied upon a decision reported in AIR (31) 1944 Privy Council 11, Sarala Sundari Patna High Court C.Misc. No.420 of 2020(10) dt 03-08-2022 6/10 Dassya v. Dinabandhu Roy Brajaraf Saha (Firm) and submitted that the judgment in a probate case is Judgment in Rem and any person who has been defrauded can file a revocation petition. The relevant portion of that decision is being extracted hereinbelow:-
"(a) Succession Act (1925), Ss. 263 and 283 -
Creditor of heir of testator is entitled to apply for revocation of probate.
It cannot be said that it is only those persons who could be cited before the grant of probate who are the persons who could apply to revoke the probate. If a person is complaining that he has in fact been defrauded, he is one of the persons who is injured by the fraud alleged and that person is entitled to have his redress by applying to revoke the probate and thereby cause the fraud to become inoperative. Therefore the creditor of an heir of a testator who says that he is being or is likely to be defeated in his rights against the heir by reason of property which otherwise appeared to be in possession of the heir being withdrawn by a will, has locus standi to apply for revocation of the probate on the ground that the grant was obtained fraudulently."
"In dealing with the first point, that the grant was obtained fraudulently, it appears to their Lordships to follow as a matter of course that if a person is complaining that he has in fact been defrauded, he is one of the persons who is injured by the fraud alleged and that that person is entitled to have his redress by applying to revoke the probate and thereby cause the fraud to become in-operative. If he had not such a right as that, it is very difficult to know what Patna High Court C.Misc. No.420 of 2020(10) dt 03-08-2022 7/10 right a creditor in those circumstances, or a person injured by the fraud, could have, otherwise the probate would stand and he would be affected by the probate which had been obtained ex hypothesi fraudulently. That is the view which he was taken by their Lordships in 10 I. A. 80.¹ It has been followed since in Calcutta, and their Lordships feel satisfied that in this case the applicants for revocation had every ground for applying and had a proper locus standi to come into Court and ask that the probate should be revoked."
The learned counsel for the respondent has submitted that the fraud committed by the petitioner is apparent on the face of the record. As the will deed is said to be executed on 15.05.1966 but the xerox copy of Aadhar Card of the petitioner shows that his date of birth is 02.01.1979, it means that on the date of execution of the said will deed, the petitioner was not even in the womb of his mother. This fact shows apparently that will deed is a forged document.
The learned counsel for the respondents had submitted that from bare perusal of Section 283 (1) (c) of 'the Act' shows that all the persons claiming to have any interest in the estate of the deceased, have caveatable right. The provisions of Section 283 (1) (c) of 'the Act' is being extracted hereinbelow:-
"issue citations calling upon all persons claiming Patna High Court C.Misc. No.420 of 2020(10) dt 03-08-2022 8/10 to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration."
This provision shows that all the persons claiming to have interest in the estate of the deceased are entitled to file revocation petition. The respondent claims the properties on the basis of sale deed executed by the father of the petitioner, as such, she has a caveatable right.
Learned counsel for the respondents has also relied upon a decision of this Court in case of Ekta Sehkari Grih Nirvan Samiti Ltd. Patna vs. The Estate of Late Ram Parichan Singh and others, reported in 2013 (1) PLJR 944, paragraph no. 5 of that decision is as follows:-
"In view of the above submission of the parties, it is admitted fact that the property originally belonged to late Ram Parichan Singh. He died on 20.5.1999 leaving behind only his widow, Jipato Devi. Jipato Dvi sold the property to the petitioner on 4.12.2000. It is also admitted fact that in the probate proceeding, Jipato Devi was not shown as opposite party in the probate application. At paragraph 10, Jipato Devi was shown as only near relative. From perusal of the supplementary affidavit which is not controverted by the respondent, it appears that although the probate application was filed much earlier but then the same was defective and no duty money was paid. On the direction of the court, the Patna High Court C.Misc. No.420 of 2020(10) dt 03-08-2022 9/10 defects were removed and duty money was paid and thereafter the probate case was admitted on 17.3.2001. Thereafter, notices were issued on the near relatives as notice of general citation and then Jipato Devi appeared on 20.4.2001. Therefore, prior to that, she had no knowledge about the proceeding and she had already sold the property to the petitioner. On her objection, challenging the genuineness of Will said probate proceeding was converted to title suit no. 9 of 2003."
This Court in case of Ekta Sahkari Grih Nirmal Samiti Ltd. (supra) has allowed the caveat petition filed by the petitioner in that case who was the vendee of Jipato Devi, wife of Late Ram Parichan Singh, the testator.
Learned counsel for the respondent has also submitted that a decree or order obtained by playing fraud on the Court, tribunal or authority is a nullity and non-est in the eye of law and in support of his submission, he relied upon a decision of the Hon'ble the Supreme Court of India AV Pappaya Sastry and Ors. vs. Government of A.P. and Ors., Reported in 2007 (2) PLJR 201.
So far as second submission of the learned counsel for the petitioner is concerned, the learned counsel for the respondent replied that the said transaction was not barred by the provisions of Benami Transfer (Prohibition) Act, 1988, Patna High Court C.Misc. No.420 of 2020(10) dt 03-08-2022 10/10 because the Act itself was enacted in the year 1988, whereas the transaction (sale deeds) were executed much earlier i.e. in the year of 1981 and 1982 when the Benami Transfer (Prohibition) Act, 1988 was not in existence.
Considering the above-mentioned facts and circumstances, the respondents appear to be interested in the estate of testator and they are entitled to file revocation petition. As discussed above, the transaction was not barred by the provisions of Benami Transaction (Prohibition) Act, 1988 as the sale deeds were executed much earlier from that enactment. I do not find any illegality or jurisdictional error in the impugned order. The learned trial court has rightly rejected the application filed by the petitioner under the provisions of Order VII Rule 11 of 'the Code'.
With these observations, this civil miscellaneous petition is dismissed.
(Nawneet Kumar Pandey, J) SONALI/-
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