Jammu & Kashmir High Court
Tara Devi And Others vs Sanjeev Singh on 9 June, 2023
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU, KASHMIR AND LADAKH
AT JAMMU
Reserved on : 29.05.2023
Pronounced on: 09.06.2023
OW104 No. 38/2017
Tara Devi and others .....Appellant(s)/Petitioner(s)
Through: Mr. Virender Bhat, Advocate
Vs
Sanjeev Singh ..... Respondent(s)
Through: Mr. R. S. Thakur, Sr. Advocate with
Mr. Vasharan Thakur, Advocate
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGEMENT
1. The petitioners being aggrieved of the framing of the issues by the Court of Principal District Judge, Samba (hereinafter to be referred as "the probate court") vide order dated 19.11.2016 in an application filed by the petitioners under Section 50 of the Probate and Administration Act, SVT, 1977 (for short "the Act"), has assailed the same on the ground inter alia that there was no requirement of framing of the issues in the miscellaneous proceedings, particularly when the facts before the learned probate court were not in dispute and once the learned probate court had heard the arguments finally in the application filed by the petitioners, the same was required to be decided on the basis of material available before the Court, but instead of 2 OW104 No. 38/2017 doing so, the learned probate court has shrugged off its responsibility to decide the matter.
2. Mr. Virender Bhat, learned counsel for the petitioners submitted that the petitioners were necessary parties but were not arrayed as parties by the respondent in the petition filed under Section 62 of the Act and also the respondent had concealed the material facts from the probate court, so once the facts were not in dispute, the learned probate court should have decided the application field by the petitioners for revocation of the probate on the basis of the record available before the Court and there was no requirement at all for framing of the issues.
3. Per contra, Mr. R. S. Thakur, learned senior counsel for the respondent has raised a preliminary objection with regard to the maintainability of the petition, as the learned probate court has not decided any issue, of which the petitioners can claim themselves to be aggrieved. He further argued that the petitioners had no locus to file an application for revocation of probate, therefore, the learned probate court had rightly framed the issues in an application seeking revocation of probate.
4. Heard learned counsel for the parties and perused the record.
5. The respondent had filed an application under Section 62 of the Probate and Administration Act, 1977 and the learned probate court vide its order dated 14.06.2014 issued the letter of Probate and Administration. The petitioners filed an application under Section 50 of the Act for revocation or annulment of letter of Probate and Administration, thereby pleading that the Will was executed by the deceased fraudulently, as the deceased was not the owner of the whole property bequeathed by her by virtue of Will and also that 3 OW104 No. 38/2017 the grant was obtained by the respondent fraudulently by making a false suggestion and by concealing the material facts from the probate Court.
6. The respondent filed the response to the application under Section 50 of the Act and objected the claim of the petitioners and denied the allegations levelled against him in respect of concealment of facts and making of false statement of facts.
7. From the record, it transpires that the learned probate court heard the arguments on number of dates of hearing and finally vide order dated 19.11.2016 framed the following issues.
(1) Whether applicants have locus standi to seek the revocation/annulment of the Probate and Administration granted in favour of non-applicant by this Court‟s order dated 14.06.2014? OPP (2) Whether non-applicant by concealing material facts has fraudulently obtained the letter of Probate from this Court on 14.06.2014? OPP (3) Relief?
8. As per the mandate of Section 50 of the Act, the grant of probate or letters of administration can be revoked or annulled for just cause. The expression "just cause" has been explained in an explanation appended to Section 50 of the Act. This Court would not determine the merits of claim of either of the parties as the only issue, which is to be examined by this Court, is in respect of framing of the issues by the learned probate court.
9. As per the mandate of Section 55 of the Act, the proceedings in relation to Probate and Administration depending upon the circumstances 4 OW104 No. 38/2017 may be conducted in accordance with the Code of Civil Procedure, except where „the Act‟ provides otherwise. This District Judge may apply the provisions contained in Code of Civil Procedure as the circumstances may require.
10. So far as the present case is concerned, the learned probate court had heard the parties at length and thereafter vide order dated 19.11.2016 framed the issues. The learned probate court has not determined any right(s) of either of the parties. The petitioners, therefore, cannot claim to have suffered any miscarriage of justice because of the order impugned as the learned probate court in its wisdom has deemed it appropriate to frame the issues so as to afford proper opportunity to the contesting parties to lead evidence so that the learned probate court could determine the issue conclusively. The learned probate court was well within its jurisdiction to frame the issues, more particularly when the probate proceedings are required to be regulated by the Civil Procedure Code as the circumstances may permit.
11. In Nalini Navin Bhagwati v. Chandravadan M. Mehta, (1997) 9 SCC 689, it has been held by the Hon‟ble Apex court that "We are of the considered view that an application to revoke probate or letter of administration would be treated as miscellaneous application and may be disposed of on the fact-situation in an appropriate case either summarily or after recording evidence. The application to revoke the probate or letter of administration thus may be disposed of by the District Judge either summarily or in a given situation where it requires proof of the facts by adduction of evidence by the parties by recording such evidence as is adduced by the parties. The burden will be on the applicant to prove the facts to revoke the 5 OW104 No. 38/2017 probate or letter of administration and the respondent who obtained probate or letter of administration has to disprove the contentions of the applicant. In that situation, based upon the given fact-situation, it will be for the court to dispose it of either summarily or after giving opportunity to both the parties to adduce evidence and consideration thereof".
12. In so far as the contention of the petitioners that the matter could have been decided on the basis of record available is concerned, the petitioners can make the statement before the learned probate court that they do not want to lead any evidence and the matter may be decided on the basis of the record and in that eventuality, the respondent can also choose an option to lead evidence or to make a similar submission before the learned probate court in this regard.
13. In Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329, the Apex Court has held that in exercise of its power of superintendence, High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. More so, High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
6 OW104 No. 38/2017
14. This Court does not find any circumstance laid down by the Hon‟ble Apex Court in the judgment (supra), to be existing in the present case so as to warrant indulgence of this Court under Article 227 of the Constitution of India.
15. Viewed thus, the present petition is found to be misconceived and the same is, accordingly, dismissed.
(RAJNESH OSWAL) JUDGE Jammu 09.06.2023 Karam Chand/Secy.
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No