Delhi District Court
Krishan Kumar Khera vs Major Satya Pal Saigal (Since Deceased) on 22 January, 2021
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQs)
TIS HAZARI COURTS, DELHI
Misc DJ No. 61285/2016
KRISHAN KUMAR KHERA
S/o LATE SHRI DHARI LAL KHERA
R/o 8 MYALLA COURT, WANTRINA
SOUTH MELBOURNE, VICTORIA - 3152
AUSTRALIA
....APPLICANT
VERSUS
1. MAJOR SATYA PAL SAIGAL (SINCE DECEASED)
R/o A-46/1, NARAINA VIHAR
NEW DELHI - 110028
2. SHRI SURINDER KUMAR (SINCE DECEASED)
NEW PRESENTED BY HIS LRs
a) Smt. NIRMALA KHERA
Wd/o SHRI SURINDER KUMAR
b) Dr. RAKESH KHERA
c) VIVEK KHERA
BOTH S/o LATE SHRI SURINDER KUMAR
ALL R/o A-83, NARAINA VIHAR, NEW DELHI
3. Smt. BIMLA GULYANI
R/o 5, BUTTERFLY
CALIFORNIA (U.S.A)
4. Ms. NARGIS
Misc DJ No. 61285/2016
Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 1 of 24 pages
5. Ms. RITU
6. Ms. MAMO
7. SHRI RAKESH
ALL R/o 5/6, REAR PORTION
GROUND FLOOR, MIANWALI NAGAR,
ROHTAK ROAD, NEW DELHI
8. Smt. SUDESH BHUTANI
C-108, KALKAJIT, NEW DLEHI.
9. SHRI RAMESH CHAND KHERA
R/o 5/6, MIANWALI NAGAR,
(FRONT PORTION) NEW DELHI.
.... RESPONDENTS
Date of filing : 10.12.2015
First date before this court : 05.07.2019
Arguments concluded on : 18.01.2021
Date of Decision : 22.01.2021
Appearance :
Shri SC Singhal, counsel for applicant
Shri Rishi Manchanda, counsel for respondents no.2&3
Ms.Sunanda Kumari, counsel for respondents no.4-7
Ms.Inderjeet Saroop, counsel for respondent no.9
JUDGMENT
1. The applicant, being son of Shri Dhari Lal Khera (hereinafter referred to as "the deceased") has sought revocation of Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 2 of 24 pages order/judgment dated 04.07.2005 of my learned predecessor, whereby Probate of Will dated 08.06.1989 of the deceased in respect of immovable properties at Naraina Vihar, New Delhi and at Rohtak Road, New Delhi, and bank accounts was granted to Major Satya Pal Saigal, executor of the said Will. The executor Major Satya Pal Saigal was impleaded in this revocation application as respondent no.1, but he passed away and was deleted from the array of parties by my learned predecessor vide order dated 20.07.2017. Respondent no. 2 also was a son of the deceased, who passed away during pendency of these proceedings and was substituted with his legal representatives before my learned predecessor vide order dated 30.05.2018; vide earlier order dated 20.07.2017, learned counsel for respondent no. 2 had stated that he did not wish to file any reply to this revocation application. Respondent no. 3, being daughter of the deceased, also stated before my learned predecessor through her counsel on 20.07.2017 that she did not want to file any reply to the application. Respondent no. 4-7 being the widowed daughter in law and grandchildren of the deceased submitted through counsel before my learned predecessor on 20.07.2017 that they do not wish to file any reply. Respondent no. 8 being daughter of the deceased filed reply to the pleadings that they had no concern with this dispute so her name be deleted from array of parties. Respondent no. 9 Shri Ramesh Chand Khera being son of the deceased is the only contesting respondent of this case who filed Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 3 of 24 pages detailed reply, which followed rejoinder of the applicant. I heard the learned counsel for applicant and learned counsel for respondent no. 9 who took me through records. I also examined the written submissions filed by the rival sides.
2. Briefly stated, factual matrix set up by the applicant seeking revocation of the probate is as follows. The original petition for grant of probate filed by the present respondent no. 1 late Major Satya Pal Saigal was based on fraud in so far as he was aware that the applicant was not residing at Indore and stood transferred to Dubai by his employer in Taj Group of Hotels but the original petitioner Major Satya Pal Saigal mentioned address of the applicant falsely as at Indore. Since at the relevant time, the applicant was not at Indore, there was no question of service of notice of the probate proceedings on him. Further, the present respondent no. 1 also wrongly spelt name of the applicant as Kishan Kumar instead of Krishan Kumar Khera. Initially when the applicant asked the present respondent no. 4 and 9 for his share in the immovable property at Rohtak Road, they assured of finding suitable collaborator, but in the month of October 2015 they informed the applicant that he had no right in view of the probate order passed in the petition. Thereafter, the applicant contacted two advocates who traced out the records and after inspection came to know on 03.11.2015 that name of the applicant was not correctly spelt out in Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 4 of 24 pages the application and he was never served with the notice because the acknowledgment card of the postal envelop reflected that the same had been sent to Indore Taj Residency where the applicant was not even posted on the relevant date i.e. 13.10.1997. According to the applicant, notice of the probate proceedings was never served on him. Further, even statutory publication of notice in the National Harald newspaper dated 01.11.1997 was defective insofar as name of the deceased was mentioned in the same as Dhasi Lal Khera instead of Dhari Lal Khera. Further, the immovable property bearing no. A-83, Naraina Vihar, New Delhi stands registered in the name of Shri S.K. Khera but yet the probate was granted in respect of that property as well. Furthermore, since the respondent no. 1 did not pay necessary court fees, stamp duty nor valuation report has been received from the Collector nor administrative bond and surety bond have been filed, the impugned probate judgment is liable to be revoked. Since the applicant was fraudulently kept in dark about the main probate proceedings, the probate judgment is liable to be revoked. Hence, the present petition.
3. In his reply to the application, respondent no. 9 denied the contents of the application and set up his case as follows. The applicant has not disclosed as to how exactly he came to know of the impugned probate judgment, so the application is barred by limitation and latches. The applicant has also not pointed out any Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 5 of 24 pages averment to suggest that the Will dated 08.06.1989 of which probate was granted is not genuine or that the said Will has not been proved. The applicant was throughout fully aware of the fact that Will dated 08.06.1989 stood probated vide judgment dated 04.07.2005 and has now brought false application with ulterior motive to grab lawful share of other legal heirs of the deceased. The applicant has deliberately not placed on record the relevant pages of his passport as he intends to conceal as to how many times, he visited India in the past 20 years and had knowledge of the Will as well as probate. The applicant during his repeated visits to Delhi used to reside with respondents no. 2 and 8 and even attended marriages in the family and other functions, so it cannot be believed that he was unaware about the Will and the pendency of the probate proceedings, but he opted to stay away. Further, probate being a judgment in rem, the applicant had deemed knowledge about filing of the probate case and thus limitation to file the revocation application would commence on 04.07.2005 when the probate was granted. The applicant, at the relevant time was residing in Indore only and not in Dubai. The applicant cannot be given undue advantage of the spellings of his name, as identity of the applicant not being in question, inadvertent non-printing of a single alphabet 'r' in his name is immaterial. The trial court record bears an acknowledgment card of the registered notice of probate proceedings duly served on the applicant and now he is raising a Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 6 of 24 pages false contention of not having been served with the notice. The applicant slept over for 20 years and now cannot be permitted to seek revocation of probate judgment. Therefore, the application is liable to be dismissed.
4. The applicant filed rejoinder to deny the pleadings of respondent no. 9 and reiterated his application contents.
5. On the basis of above pleadings, my learned predecessor recorded evidence and at the stage of final arguments, the matter was taken over by me.
6. A brief conspectus of the evidence brought on record is as follows.
6.1 Applicant appeared in the box as AW1 and deposed on oath that the proceedings for grant of probate of the alleged Will of late Shri Dhari Lal Khera were based on fraud insofar as he was not residing at Indore at the relevant time because he had been transferred by his office Taj Group of Hotels to Dubai on 05.12.1996; that his name in the proceedings was mentioned as Kishan Kumar instead of his correct name Krishan Kumar; that when he asked Shri Ramesh Chander Khera and Smt. Nargis to give him his share in the immovable property of Rohtak Road, New Delhi by redeveloping Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 7 of 24 pages the same, they assured to do so after finding a suitable collaborator, but in the month of October 2015 they informed him that he had no right in the said immovable property in view of orders passed in the probate proceedings; that he contacted his advocates, who traced out the records and on 03.11.2015 came to know about the probate proceedings; that even on the postal receipts and AD card relied upon before the probate court, his name was shown to be Kishore Kumar, so he never received notice of the probate proceedings; that even the statutory publication mentioned name of the deceased wrongly as Dhasi Lal Khera instead of Dhari Lal Khera. The applicant, in support of his case, placed reliance on documents Ex. AW1/1 (numbered already as Ex PW2/1) and Ex. AW1/2-7. At the time of tendering of the documents in evidence, a specific objection of mode of proof of Ex. AW1/2-7 was raised on behalf of respondent no. 9.
6.2 On behalf of respondent no. 9, four witnesses were examined. The summoned witness R9W1, a Section Officer of UIDAI could not produce the summoned record pertaining to Aadhar Card of the applicant. The summoned witness R9W2, Office Superintendent of Income Tax Department produced the income tax records of the applicant as Ex. R9W2/A (Colly). The summoned witness R9W3, Manager of ICICI Bank produced bank records of the applicant and Ms. Kavita Khera as Ex. R9W3/1-7. Lastly, Ms. Nidhi Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 8 of 24 pages Gulati, daughter of respondent no.9 appeared in the box as R9W4 on the basis of power of attorney Ex. R9W4/2 executed by respondent no. 9 in her name on account of his medical condition. R9W4 deposed that the applicant had been throughout fully aware about the Will of late Shri Dhari Lal Khera as well as pendency of the probate proceedings and passing of the probate judgment; that the applicant had been visiting Delhi and used to stay with Shri Surinder Khera; that in the year 1999, younger son of Shri Surinder Khera got married at Delhi and the said marriage was attended by her as well as by her father and by the applicant, during which the family members spent time together and the pending probate proceedings also were discussed by them; that her brother Gaurav Khera passed away on 06.08.2005, so her father being old aged suffering with various diseases gets bouts of depression, and even after her marriage in the year 2009 she has been frequently visiting her parents, being their only child, and the applicant never visited their house nor claimed any share in the property because he was well aware about the Will of Shri Dhari Lal Khera; that the applicant was addressed by Shri Dhari Lal Khera as Kishan Kumar, as reflected from the Will; that out of sheer greed, the applicant now wants to blackmail other legal heirs of late Shri Dhari Lal Khera.
7. During final arguments, learned counsel for both sides took me through above records. Learned counsel for applicant Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 9 of 24 pages argued that since the applicant was never served with the notice of the probate proceedings and was wrongly proceeded ex parte, the probate judgment is liable to be set aside. On the other hand, learned counsel for respondent no. 9 argued that the applicant was always fully aware about pendency of probate proceedings, as admittedly, he visited Delhi repeatedly and stayed with the respondents, so it is not believable that he was unaware; that the minor difference in spellings of name of the applicant with the use of additional alphabet 'r' cannot be given undue weightage; that there is no allegation in the application for revocation of probate to the effect that the Will, of which probate was granted, is a forged document or that Shri Dhari Lal Khera died intestate; that the documents Ex. AW1/2-7 were not proved in accordance with law since there is nothing on record to suggest as to how the applicant received those documents. In rebuttal, learned counsel for applicant argued that merely because the applicant had been visiting Delhi, it cannot be said that he was aware of the probate proceedings.
8. At the outset, it needs to be kept in mind that the probate court is a court of conscience and not a civil court, strictly speaking. It also needs to be kept in mind that a probate judgment is judgment in rem and grant of probate in itself is a deemed notice thereof. It would be apposite to traverse briefly through the relevant legal position.
Misc DJ No. 61285/2016Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 10 of 24 pages
9. In the case of Anil Behari vs Latika Bala Dassi, AIR 1955 SC 566, the Hon'ble Supreme Court, while interpreting the provisions under Section 263 of the Succession Act held thus :
"16. It was further argued on behalf of the appellant that the appeal should be allowed and the grant revoked on the simple ground, apart from any other considerations, that there had been no citation issued to Girish. In our opinion, this proposition also is much too widely stated. Section 263 of the Act vests a judicial discretion in the court to revoke or annul a grant for just cause. The explanation has indicated the circumstances in which the court can come to the conclusion that "just cause" had been made out. In this connection the appellant relied upon clause (a) quoted above which requires that the proceedings resulting in the grant sought to be revoked should have been "defective in substance". We are not inclined to hold that they were "defective in substance". "Defective in substance" must mean that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings. If there were any suggestions in the present proceedings or any circumstances were pointed out to show that if Girish had been cited he would have been able to enter a caveat, the absence of citation would have rendered those proceedings "defective in substance". It may be that Girish having been found to have been the next reversioner to the testator's estate in case of intestacy and on the assumption that Charu had murdered the testator, Girish might have been entitled to a revocation of the grant if he had moved shortly after the grant of the probate on the simple ground that no citation had been issued to him. The omission to issue citations to persons who should have been apprised of the probate proceedings may well be in a normal case Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 11 of 24 pages a ground by itself for revocation of the grant. But this is not an absolute right irrespective of other considerations arising from the proved facts of a case. The law has vested a judicial discretion in the Court to revoke a grant where the court may have prima facie reasons to believe that it was necessary to have the will proved afresh in the presence of interested parties. But in the present case we are not satisfied in all the circumstances of the case that just cause within the meaning of section 263 had been made out. We cannot ignore the facts that about 27 years had elapsed after the grant of probate in 1921, that Girish in spite of the knowledge of the grant at the latest in 1933 did not take any steps in his lifetime to have the grant revoked, that there was no suggestion that the will was a forgery or was otherwise invalid and that the will was a registered one and had been executed eight years before the testator's unnatural death. Hence the omission of citations to Girish which ordinarily may have been sufficient for a revocation of the grant was not in the special circumstances of this case sufficient to justify the court to revoke the grant". (emphasis supplied) The Hon'ble Supreme Court further held that the annulment of grant of probate is a matter of substance and not of mere form, and that the court may refuse to grant annulment in cases where there is no likelihood of proof being offered that the will admitted to probate was either not genuine or had not been validly executed, so in the said case, since validity or genuineness of the will had not been challenged, it would serve no useful purpose to revoke the Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 12 of 24 pages grant and to make the parties go through the mere formality of proving the will over again.
10. In the case of In Re Sureman Singh & Anr., AIR 1969 Patna 183, a Division Bench held that failure of the probate petitioner to furnish security bond does not constitute the ground for revocation or annulment of grant.
11. In the case of Adil Phiroz Makhania vs Dilip Gordhandas Gondalia & Another, Misc. Petition No. 29 of 2014, decided on 29.04.2014 by Hon'ble Bombay High Court, it was held thus :
"29. Testamentary proceedings are proceedings in rem. Issuance of grant by this Court would also be a deemed notice. Supreme Court in case of Dilboo (supra) has held that where a fact could be discovered by due diligence by the plaintiff, then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge. In my view, the petitioners cannot just simply take an excuse of lack of knowledge of the alleged fraud without taking any reasonable steps or acting with reasonable diligence to ascertain such facts. In my view, the petitioners would have deemed knowledge of filing of such petition by the executor and issuance of grant by this Court. Limitation in this case thus would commence on the date of issuant of grant by this Court which was in the year 1980 and would not commence in the year 2012 when public Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 13 of 24 pages notice was issued by the respondents in the newspaper.
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32. The division bench of this Court in case of Nina Agarwalla (supra) and in particular paragraph 13 has held that Article 137 of the Limitation Act would apply to the proceedings for revocation of probate filed under Section 263 of Indian Succession Act 1925. Paragraph 13 of the said Judgment reads thus:
"13. The Appellant has not been able to show any evidence to establish that the citation was not served upon her. We find it difficult to accept on her mere statement that the citation was not served upon her, particularly in view of the records of the testamentary department of the Court and the fact that probate was granted more than 38 years ago. So far as the decisions of the Supreme Court in the matter of Kunvarjeet Singh (supra) is concerned, the same dealt with the issue of grant of probate and not with revocation of probate. In any case, in the facts of the present case in the absence of the Appellant being able to show that citations were not served upon her and she was kept in dark about the Will dated 28 March, 1964, the provision of Section 263 of Indian Succession Act, 1925 is not satisfied. Moreover, one must keep in mind that a grant of probate by a Competent Court operates as a judgment in Rem and once the probate to the Will is granted, then the said probated Will is good not only in respect of the parties to the proceedings, but against the whole world. Therefore, if the probate is granted, the same operates in Rem and time runs from the date of the grant of the probate for purposes of Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 14 of 24 pages limitation under Article of the Limitation Act in proceedings for revocation of probate."
(emphasis furnished)
12. In the case of S.A. Modi vs Mrs. T.A. Rama, AIR 2004 Bombay 353, although citation acknowledging the petitioner about probate proceedings was not issued, but revocation of probate was declined by the Hon'ble Court because the petition for revocation of grant was made almost 14 years after death of the testator and 11 years after grant of probate, observing that because of inordinate delay, witnesses of the Will had died and estate of the deceased had been fully administered.
13. In the case of Lynedde Fernandes vs Gertie Mathias, (2018) 1 SCC 271, the Hon'ble Supreme Court held thus :
"6. It is necessary to note the provisions of Section 263 of Indian Succession Act, which reads thus:-
"263. 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 Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 15 of 24 pages 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."
The aforementioned provision allows revocation of grant of probate of the Will on the existence of 'just cause'. The appellant seeks to bring her case within explanations (a) & (b) to this Section, as she claims that the proceedings were defective and that the grant was fraudulently obtained.
7. ...... Section 263 of the Indian Succession Act, makes it very clear as to what 'just cause' means and includes. As mentioned supra, the grant of probate may be revoked or annulled for 'just cause' only. The explanation to this Section further clarifies that 'just cause' shall be deemed to exist where the proceed- ings to obtain the grant were defective in substance.
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19. One must keep in mind that the grant of probate by a Competent Court operates as a judgment in rem and once the probate to the Will is granted, then such probate is good not only in respect of the parties to the proceedings, but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation un- Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 16 of 24 pages der Article 137 of the Limitation Act in proceedings for revocation of probate. In this matter, as men- tioned supra, the appellant was a minor at the time of grant of probate. She attained majority on 09.09.1965. She got married on 27.10.1965. In our considered opinion, three years limitation as prescribed un- der Article 137 runs from the date of the appellant at- taining the age of majority i.e. three years from 09.09.1965. The appellant did not choose to initiate any proceedings till the year 25.01.1996 i.e., a good 31 years after she attained majority. No explanation worthy of acceptance has been offered by the appel- lant to show as to why she did not approach the Court of law within the period of limitation. At the cost of repetition, we observe that the appellant failed to produce any evidence to prove that the Will was a result of fraud or undue influence. The same Will has remained un-challenged until the date of fil- ing of application for revocation. No acceptable ex- planation is offered for such a huge delay of 31 years in approaching the Court for cancellation or revoca- tion of grant of probate". (emphasis supplied)
14. Falling back to the present case, the application under consideration raises questions as to whether the applicant was duly served with notice of the probate proceedings; as to whether the applicant was otherwise aware about pendency of the probate proceedings; as to the effect of such service of notice and/or of the applicant being aware about pendency of probate proceedings; and as to whether the application has been filed within limitation period.
Misc DJ No. 61285/2016Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 17 of 24 pages
15. Regarding name of the applicant, the dispute is not only of Krishan Kumar and Kishan Kumar. There is one more name, which is Kishore Kumar, the name mentioned on the postal receipt Ex.AW1/8 whereby court notice of probate proceedings was sent to the applicant. According to learned counsel for applicant, even the AD Card Ex.AW1/9 bears name of the recipient as Kishore Kumar, which shows the deliberate effort on the part of the now deceased respondent no.1 to keep the applicant in dark about the probate proceedings. But according to learned counsel for respondent no.9, that is not so. Having minutely examined the AD Card Ex.AW1/9, I agree with learned counsel for respondent no.9 in that regard. The formation of alphabet 'a' in the name of recipient on the AD card is similar to the formation of alphabet 'a' in the words 'Taj' and 'Garden'; and the formation of alphabets 'o' in the word 'Meghdoot' is completely different from the formation of alphabet subsequent to the alphabet 'h' in the name of the recipient on the AD Card. It is clear that the AD Card Ex.AW1/9 bears the name of the recipient as Kishan Kumar and not as Kishore Kumar. As regards the name of the recipient mentioned on the envelope containing the court notice, it is nobody's case that the same bore wrong name of the applicant.
16. The said court notice of probate proceedings for 10.11.1997 was sent by way of registered post to the applicant at Taj Residency in Indore on 09.10.1997. It is claimed by the appellant Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 18 of 24 pages that much prior to October, 1997, he had already been transferred by his employers to Dubai, so he could not have received the envelope containing the said court notice.
17. In para 5 of the application, it is stated by the applicant that the envelope of court notice did not contain designation of the applicant. In the corresponding paragraph of reply filed on behalf of respondent no. 9, this averment was pointed out to say that had the applicant not received the envelope containing the court notice, he would not have been able to claim that it did not bear his designation. Despite such stand taken in the reply by respondent no. 9, the applicant neither led any evidence nor explained in the rejoinder as to how he came to know about non-mentioning of his designation on the notice bearing envelope. The logical inference would be that the envelope containing the notice of the probate proceedings was duly received by him.
18. In order to establish that when envelope containing the court notice of probate proceedings was posted vide postal receipt Ex. AW1/8 to Indore in the month of October 1997, he had already been transferred to Dubai, applicant placed reliance on photocopy of transfer order Ex. AW1/2 and a certificate Ex. AW1/3. At the time of tendering of documents in evidence, learned counsel for respondent no. 9 had specifically objected to the mode of proof of Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 19 of 24 pages the said documents, as the applicant is admittedly not author of the said documents. Despite such specific objection of mode of proof, the applicant did not summon the original office records in order to prove the date of his alleged transfer to Dubai. Even in his cross examination, the applicant was called upon to produce the original of alleged transfer order Ex. AW1/2 but the same was not done. In cross examination, the applicant admitted that the original transfer order Ex. AW1/2 and the certificate Ex. AW1/3 were neither prepared nor signed in his presence. Therefore, stand of the applicant that when notice of the probate proceedings was issued to his Indore office he was already transferred to Dubai, stands not proved.
19. Further, the applicant stated in his cross examination that his employer Taj Group of Hotels is a very ethical and responsible organization where all correspondence get delivered at the staff entrance from where the mail is delivered to the employees as per department and designation while the balance mail goes to the employees letter board. In other words, according to the applicant, the mail which does not bear correct department or designation goes to the employees letter board and not discarded in wastebin. It cannot be ruled out that the envelope containing notice of the probate proceedings went to the employees letter board, from where the applicant collected the same on noticing the name of the Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 20 of 24 pages sender and title of the probate proceedings mentioning the name of his brother, which is how the applicant is aware that the envelope did not bear his designation.
20. I have also examined the question as to whether the applicant was otherwise aware about the pendency of the probate proceedings, assuming that he was not served with the notice of the probate proceedings issued by the court.
21. In his cross examination, the applicant stated that he came to Delhi in the year 1999 to attend marriage of his nephew Vivek Khera and thereafter again visited Delhi in the year 2000 for the purposes of obtaining visa for Australia; that thereafter he came to Delhi in the year 2007-08, but regarding his other visits to Delhi he could not recollect without seeing his passport; that his wife visited Delhi more frequently; that he had cordial relations with his sister, the present respondent no. 8 and used to visit her whenever in Delhi; that he also had cordial relations with his other sister, the respondent no. 3 and visited her home in the US in the year 2011-12; that the respondent no. 3 also visited his home in Australia; that he met respondent no. 3 at the time of his mother's death; that he attended the marriage of his wife's brother in Delhi but he did not remember the year; that he attended marriage of son of respondent no. 8 in Delhi; that he had cordial relations with Shri Surinder Khera Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 21 of 24 pages as well as Smt. Nargis. Apart from that, the applicant in his cross examination was evasive on many questions related to his visits to Delhi. The overall testimony of the applicant would reflect that he had cordial relations with the remaining respondents and visited Delhi frequently. The undisputed position being that the testator Shri Dhari Lal Khera executed a Will on 08.06.1989 and passed away on 12.01.1996, it is not believable that the applicant was totally unaware of the Will and the probate proceedings till the year 2015, especially because it remains a mystery as to why two of the respondents, who had been allegedly assuring the applicant to give his share, would suddenly in the month of October 2015 inform the applicant about the probate order after the vacuum period of about two decades.
22. Testimony of R9W4 in her cross examination that she personally never informed the applicant about pendency of the probate proceedings cannot be overstretched to mean that the applicant was unaware about those proceedings. Rather, it shows the truthfulness of R9W4, who further stated in cross examination itself that in the year 1999, the applicant had asked about the status of the probate case and was informed by Shri Surinder Khera that the same was pending.
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23. Thus, it stands established from evidence on record that the applicant had received the envelope containing notice of the probate proceedings, though his name on the postal receipt was wrongly written; and that even otherwise the applicant was fully aware about pendency of the probate proceedings but opted to stay away deliberately; and that for the purpose of revocation of probate, limitation period under Article 137 Limitation Act commence on 04.07.2005 when probate was granted and accordingly the application filed in November 2015 for revocation of probate is clearly time barred.
24. Not only this, there is not even a whisper in the revocation application that the Will, of which probate was granted, is a forged/fabricated document or otherwise invalid for any reason. In view of legal position cited above, I am unable to accept the contention of learned counsel for the applicant that the challenge to the Will can be raised only once the probate order is set aside and the applicant is permitted to join the proceedings from the very inception. As mentioned above, while dealing with a probate petition and/or a revocation petition, the court acts as a court of conscience and not a strictly civil court. In view of circumstances of this case described above, especially because the applicant has not made any whisper challenging the genuineness of the Will of which probate was granted, setting aside the probate after so many years Misc DJ No. 61285/2016 Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 23 of 24 pages followed by making the probate petitioner once again to prove the Will in accordance with law would serve no purpose.
25. In view of above discussion, it is held that the applicant was not just aware about pendency of the probate proceedings, but had even been served with the court notice of the proceedings by registered post; that despite notice the applicant opted to stay away from the proceedings; that in the application seeking revocation of grant of probate, the applicant has not made even a whisper alleging that the Will of which probate was granted is forged/fabricated or otherwise invalid; and that the application for revocation is clearly time barred in view of Article 137 of the Schedule to the Limitation Act. Therefore, the application under consideration for revocation of probate order and judgment dated 04.07.2005 is dismissed.
26. File be consigned to records.
Announced in open court on this
22nd day of January, 2021
GIRISH Digitally signed by GIRISH
KATHPALIA
KATHPALIA Date: 2021.01.22 15:28:08
+05'30'
(GIRISH KATHPALIA)
Principal District & Sessions Judge (HQ)
Tis Hazari Courts Delhi
22.01.2021
Misc DJ No. 61285/2016
Shri Krishan Kumar Khera vs Major Satya Pal Saigal Page 24 of 24 pages