Delhi District Court
Saumen Ray vs Satya Narayan Das Gupta on 21 October, 2020
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
DISTRICT & SESSIONS JUDGE,
SOUTH EAST DISTRICT, SAKET COURT, NEW DELHI.
P.C. No.61/2019
SAUMEN RAY
S/o Late Karunamoy Roy
R/o 48/55/1, Swiss Park,
Kolkata-700033, West Bengal.
......Applicant/Petitioner
Versus
1 SATYA NARAYAN DAS GUPTA
S/o Late Nityananda Das Gupta
R/o I-1675, Chittaranjan Park,
New Delhi-110019.
2 STATE OF NCT OF DELHI
Through:
Sub-Divisional Magistrate, Kalkaji,
37, Institutional Area,
Tughlakabad, Behind Batra Hospital,
M.B. Road, New Delhi.
......Respondents
ORDER
1. By this Order I shall be disposing of the application under Order VII Rule 11 CPC filed on behalf of Respondent No.1 Sh. Satya Narayan Das Gupta for rejection of the application under Section 264 read with Section 263 of Indian Succession Actfiled by the applicant for revocation of the Probate granted vide order dated 03.06.2016 in respect of Will dated 25.02.2013 of Late Smt. Sushama Roy.
2. The facts in brief are that Late S.K.Roy became the owner of property no. I-1675, Chittaranjan Park, New Delhi by virtue of Lease dated 13.01.1971 Saumen Ray Vs. Satya Narayan Das Gupta Page 1 of 24 executed in his favour by His Excellency the President of India having retrospective effect from 20.09.1969, for a period of 99 years. Sh. Roy constructed the entire building on the said property from his own funds. Sometime in 1989, Respondent no.1, brother of Late Sushama Roy, wife of Sh. S.K. Roy who used to earlier reside in West Bengal on account of his employment, shifted with his family to New Delhi to reside with them. Sh. S.K. Roy owing to his relationship with his wifedid not object and allowed him to reside till he was able to find a suitable alternate accommodation. Late Mr. S.K. Roy went to Calcutta in April, 1990 where he executed a Deed of Family Settlement on 17.04.1990 which was duly registered with the Registrar of Calcutta. By virtue of this Deed Mr. Roy appointed himself as Settler and transferred all the rights, title, interest and share in the property unto himself as a Trustee and laid down the condition that upon his death, his wife would have the sole right to live and utilize the property during her lifetime, but would not have a right to sell or alienate the property. The life interest to reside in the property was thus created in favour of Late Sushama Roy. The Family Deed further provided that on her demise, the property would pass to the applicant Sh. Saumen Ray, who was the son of the brother of Late Sh. S.K. Roy. An obligation was put on the applicant to maintain the property and to contribute a sum of Rs.125/- per month to Sri Sri Matri Mandir, Joyrambati, Bankura, West Bengal. In case of sale of the property by the petitioner, 10% of the sale proceeds were to be donated to Sri Sri Matri Mandir and 40% was to be used to create a Trust for the benefit of orphans and destitute children. The balance 50% was to be received by the applicant. The Deed also contained certain directives in regard to creation and functioning of the Trust Saumen Ray Vs. Satya Narayan Das Gupta Page 2 of 24 after the demise of Late Mr. Roy. It is asserted that Applicant was informed by Late Mr. Roy that the deceased, Smt. Sushama Roy was informed and had knowledge about the execution of Family Settlement. Late Sh. S.K.Roy died in New Delhi on 4th March 1996.
3. The applicant has claimed that he and his family members interacted and regularly visited Smt. Sushama Roy in Delhi, but she was always shadowed by Respondent no.1, her brother. During one such visit some time in 2014 the Respondent no.1 during a discussion enquired from the petitioner whether Mr. Roy had executed or left any testamentary document in regard to the property. The petitioner answered in affirmative on which the Respondent No.1 requested for a copy of testamentary document, but the petitioner did not oblige as he had no reason to do so.Smt Sushama Roy died on 10 th May 2015 in New Delhi, but the petitioner was informed late in the night and could reach Delhi only in the morning but was shocked to know that she had already been cremated. He tried to visit the property, but was prevented by Respondent no.1 on the pretext that he was disturbed by the loss of his sister and would appreciate if he was left alone for a few days. The Applicant obliged as Respondent No.1 is an aged man.
4. The applicant on or about 5 th February 2016, approached the Land and Development Office, Ministry of Urban Development, Government of India for getting the said property transferred/ mutated in his name to give effect to the Family Settlement and made the necessary Substitution application, but he received a letter dated 20.12.2017 from L& DO calling him to file his consent/ objections in respect of Probatein respect of Will of Late Smt. Sushama Roy vide order dated 03.06.2016 granted in favour of Respondent no.1. The Saumen Ray Vs. Satya Narayan Das Gupta Page 3 of 24 detailed objections were filed before the Ministry on 12.01.2018. The Substitution application of the applicant was rejected vide Report Dated 25th May 2018 by stating that the issue involved adjudication through Court of Law. The applicant also came to know that the property was registered with SDMC in the name of the owner by 100% share and the house Tax was being duly paid since 2012-2013 till 2018-2019. It was claimed that the rights of the Applicant were seriously prejudiced and infringed by Respondent No.1. Hence, the present application has been filed for Revocation of the Probate granted vide judgment/order dated 03.06.2016.
5 The Respondent No.1 by way of his application under Order VII Rule 11 has sought rejection of the application on the grounds that the applicant has no locus standi to move the present application and there is no situation or valid reasons for granting the revocation of the Probate. It is asserted that the revocation of Probate can only be on the grounds specified in Section
263. None of the grounds as stated therein are pleaded in the application nor are made out from the submissions of the applicant. It is further submitted that it is a settled law that Probate is never conclusive about the interpretation of the Will nor does it determine the question of title to the property which is the subject matter of the Will. It does no more than establish the factum of Will and legal character of the executor, but the Probate court cannot decide the question of title or of the existence of the property itself. It is asserted that instead of challenging the validity or genuineness of the Will, the applicant has frivolously filed the present application which is beyond the jurisdiction of this Court. The present application is liable to the dismissed as not maintainable. Furthermore, the petitioner is guilty of suggestion falsi and suppressioveri as Saumen Ray Vs. Satya Narayan Das Gupta Page 4 of 24 he has concealed true facts from the Court. He was aware about the Probate proceedings since beginning and has committed perjury by lying on oath and the application is malafide. It is asserted that the Deed of Settlement claimed to have been executed by Late Sh. S.K. Roy is fraudulent and collusive Deed about which the Respondent no.1 was never made aware in 28 years. The property in question was the self acquired property of Sh. S.K. Roy and after his demise, the property devolved upon his wife. The applicant cannot claim any right in the light of Section 8 and 9 of Hindu Succession Act. It is further asserted that Sh. S.K. Roy was suffering from brain tumor which was malignant and it was well within the knowledge of the petitioner that the medical inhibition acted heavily on him rendering him incapable to consent thereby and he did not leave any testamentary document of any nature as asserted by the petitioner. It is further asserted that the applicant never came to Delhi after the demise of Sh. Roy nor did he take care of the property or keep any contact with Smt. Sushama Roy. The respondent No.1 and Smt Sushama Roy undertook unto themselves the responsibility of the upkeep and maintenance of the property and duly paid the associated taxes. The mutation proceedings were conducted by deceased Sushama Roy and she got the property mutated in her own name. Thereafter, she and Respondent no.1 undertook the responsibility of upkeep and maintenance of the property. It is asserted that there was no estrangement between Late Sh. S.K. Roy and his wife and she was fully aware of the dealings of her husband in regard to the property, sale and mortgage and any other deals effected by him which rules out any probability of existence of any family settlement without the knowledge of the testatrix. It is claimed that Family Settlement is rank forgery Saumen Ray Vs. Satya Narayan Das Gupta Page 5 of 24 and has been fabricated and brought forth by the applicant after 28 years under suspicious circumstances. The signatures of the two attesting witnesses also appear to be forged. The relationship between Sh S.K. Roy and his brother and the applicant who were staying in Kolkatta, were not cordial rendering the settlement deed invalid in law. The same has been procured by unfair means as in 1990 Late Sh. S.K. Roy was suffering from malignant tumor and was unable to give consent. If it was a genuine document then what prevented the Applicant to take steps to bring legal Representatives on record after the demise of Sh. S.K. Roy. It is further asserted that the property in question is located in Delhi, yet the Family Settlement was documented and registered in West Bengal and it was never acted upon after the demise of Sh. S.K. Roy and was also not enforced within three years during his life time. Thus, it cannot be now enforced against Smt. Sushama Roy or Respondent no.1 as is barred by limitation and law of estoppel. It is claimed that present application is nothing but a litigation engineered and galvanized by the applicant who never claimed possession yet through a false and illicit set of illegible papers having no force of law is attempting to falsify the bonafide and legitimate interest of respondent No. 1 who has been in uninterrupted possession of the property. 6 It is asserted that during the Probate proceedings wide publicity was given about the matter and the publication was taken out in Indian Express dated 18.09.2015 and Jan Satta dated 18.09.2015. The law presumes full knowledge of the Probate proceedings and thus, bars the petitioner from now moving this application.Moreover, the petitioner was not entitled to citation or special citation under the law since he does not come within the ambit of heirs Saumen Ray Vs. Satya Narayan Das Gupta Page 6 of 24 of deceased Smt. Sushma Roy. Furthermore, the petitioner never approached Smt. Sushama Roy during her life time or Respondent no.1 with the Family Settlement nor did he claim the possession. The Family Settlement Deed is also bad for want of acceptance and Respondent no.1 has remained in uninterrupted possession of the property. The present application is, therefore, not maintainable. In the end, it is also claimed that the revocation application is not signed and verified by a duly authorized person and is liable to be dismissed on this ground as well. A prayer is, therefore, made that the petition be rejected.
7. The petitioner in his reply to the application has submitted that the Respondent no.1 has intentionally and deliberately made untrue and false statements under Oath. The Respondent no.1 in his overzealousness to steal a march and overreach the binding effect of the Family Settlement,has failed to appreciate that the only provision applicable to the present proceedings is Section 263 and 264 of the Indian Successions Act and Section 295 cannot be made applicable to the present proceedings. The Deed of Family Settlement being duly executed and registered cannot be questioned or disregarded as allegedly a forged or fabricated document. Furthermore, the validity of a document under challenge and the allegations of collusion and fraud as alleged cannot be determined except during the course of trial and thus, the present petition is not liable to be rejected out rightly. While dealing with an application under Order VII Rule 11 CPC it is only the averments made in theapplication and the documents filed along with it that can be considered to determine if the application discloses any cause of action. The independent averments made by Respondent no.1 in the application cannot Saumen Ray Vs. Satya Narayan Das Gupta Page 7 of 24 be considered. The Respondent no.1 had filed a Civil Suit No.1378/2018 titled Satya Narayan Dasgupta Vs. Sushanta Kumar Dev before the Ld. Court and had suppressed the material facts and made false statement. The Respondent no.1 had filed the said suit against several defendants out of whom at least one was a Developer who entered into a Collaboration Agreement with Respondent no.1 in respect of the suit property. Moreover, the Respondent no.1 did not bring to the knowledge of Hon'ble High Court of Delhi in OMP (I) (COMM) 347 of 2018 about the pendency of the instant matter and the interim orders despite the fact that the matter before the High Court involved the same suit property which is the subject matter of the present petition. The Respondent no.1 has been directed by the Hon'ble High Court of Delhi vide order dated 04.09.2018 to maintain status quo with regard to the property. It is asserted that the Respondent no.1 in the present proceedings has moved an application under Order XXXIX Rule 4 CPC for vacating the interim protection granted to the petitioner in the present case by claiming that he is in continuous possession of the property. From the order dated 04.09.2018 of Hon'ble High Court of Delhi it is abundantly clear that Respondent no.1 has created third party rights in a blatant attempt to usurp the rights of the petitioner in respect of the suit property.
8. It is further asserted that the Respondent no.1 has misrepresented that petitioner was not entitled to special citation or any citation. It is asserted that his case rests on the Deed of Family Settlement which is a duly registered document which cannot be extinguished or nullified by Respondent no.1. It is further submitted that though the publication of the Probateproceedings was carried out intwo newspapers, but they both did not have circulation in Saumen Ray Vs. Satya Narayan Das Gupta Page 8 of 24 Calcutta. There was no proper publication of the Probate proceedings carried out in accordance with law. It is also asserted that the present proceedings are not barred by limitation as the Family Settlement could not have been enforced against Smt. Sushama Roy or Respondent no.1during the life time of Ms. Sushama Roy as alleged by the respondent. It is denied that the Family Settlement Deed is bad for want of acceptance or that mere possession of Respondent no.1 grants him any ownership rights or interest in the property in question. It is also denied that petitioner had never sought eviction or delivery of possession of the property from Respondent no.1 as hewas granted only a license to reside by Late Sh. Roy owing to his wife's old age. It is thus, submitted that the present application under Order VII Rule 11 CPC is without merit and is liable to be dismissed with exemplary costs.
9. Ld. Counsel on behalf of the petitionerhas arguedthat Sh. S.K. Roy died in 1996 but during his life time he had executed a registered Deed of Settlement at Calcutta. According to Deed of Settlement Smt. Sushama Roy after the demise of Sh. S.K. Roy her husband, was to get a life time enjoyment of property and thereafter the property was to vest in Sh. Saumen Ray, the applicant. It is asserted that the Respondent no.1 who is the brother of Late Smt. Sushama Roy, was well aware about the testamentary document executed by Late Sh. S.K. Roy, but this fact was intentionally not revealed by him in the Probate proceedings. Since Ms. Sushama Roy had inherited only a right to enjoy the property during her life time, she did not become an absolute owner. She had no right, title to bequeath this property by way of a Will in favour of Respondent no.1, her brother. It is argued that despite being aware of the earlier Family Settlement, the material facts had been concealed Saumen Ray Vs. Satya Narayan Das Gupta Page 9 of 24 during the Probate proceedings thereby entitling the petitioner to seek revocation. It is asserted that the petitioner is the son of the brother of Late Sh. S.K. Roy and was a Class-II heir who became the ultimate beneficiary by virtue of the Family Settlement. Despite being a Class-II heir, no citation was issued to him during the Probate proceeding which is mandatory and thereby vitiate the Probate proceedings.
10 The Ld. Counsel on behalf of the petitioner has thus, argued that the proceedings for revocation under Section 264 are only summary in nature and are not to be tried like a legal suit. Even Section 295 of Indian Succession Act provides that the proceedings under the Act may be treated as suit, but are not like a Civil Suit governed by Code of Civil Procedure. Therefore, the application under Order VII Rule 11 CPC is not attracted in the present proceedings.
11. It is argued that the petitioner has valid grounds for challenging the Probate in terms of Section 263 which are - a better title in favour of the petitioner who is the Class-II heir of deceased Sh. S.K. Roy, the original owner of the property in question; concealment of material facts i.e being aware of the earlier Family Settlement despite which the same was not disclosed and the fraud that has been played by Respondent no.1. The petitioner herein has a better title based on a registered document and he need not seek a separate declaration in regard to the said Family Settlement. Rather if the Respondent is aggrieved by the execution of the said Family Settlement, it is he who should file a separate suit to challenge the Family Settlement. It is thus, argued that application under Order VII Rule 11 CPC is without merit and is liable to be dismissed.
Saumen Ray Vs. Satya Narayan Das Gupta Page 10 of 24
12. It is further argued that there are valid reasons disclosed in the revocation petition which can be agitated only after recording of evidence. The cause of action is thus, disclosed in the petition and the application under Order VII Rule 11 CPC is liable to be dismissed.
13. Ld. Counsel on behalf of Respondent no.1 has argued that admittedly Lt. Sh. S.K. Roy was the owner of the property in question. He died issue less and was survived by Smt. Sushama Roy his wife who became the absolute owner of the property in question and thus competent to execute the Will in respect of which the Probate has been granted vide order dated 03.06.2016. The petitioner is not a direct legal heir of Ms. Sushama Roy and was, therefore not entitled to be impleaded or a citation issued in his favour in the Probate proceedings. On the other hand, Respondent no.1 is the Class-II heir of deceased Smt. Sushama Roy being the real brother and was entitled to inherit the property as there was no Class-I legal heir of Smt. Sushama Roy. Ms. Sushama Roy being the absolute owner validly executed the Will in favour of Respondent no.1.
14. It is further argued that Sh. S.K. Roy along with his wife Smt. Sushama Roy was residing in Delhi in the property in question. He suffered from brain tumor in 1990. The Family Settlement was allegedly executed and registered in Calcutta in the year 1990 about which not a word was ever whispered by Sh. S.K. Roy during his life time or even by the petitioner till the filing of present revocation petition after 28 years. The Family Settlement on which the claim of the petitioner rests is in fact a fabricated document and does not confer any right, title on the petitioner. Furthermore, there is a delay of 28 years and the proceedingswhich could have been filed within three years, Saumen Ray Vs. Satya Narayan Das Gupta Page 11 of 24 isbarred by limitation.
15. It is also argued on behalf of the respondent that the present revocation petition under Section 263 is not maintainable in the given circumstances. No just cause for revocation has been brought forth in the petition since what is sought to be challenged is the title of Smt. Sushama Roy to the property in question which is beyond the scope of revocation petition. The present revocation petition under Section 263 is, therefore, liable to be dismissed as not maintainable.
16. I have heard the arguments from both the Counsels and have also perused the record and the written submissions and compilation of judgements filed on behalf of the petitioner and also the judgements relied by the Respondent. My observations are as under:
17. Before considering the application on merits, it may be worth a while to first reiterate the scope of inquiry under Order VII Rule 11 CPC. The law in regard to Order VII Rule 11 CPC is well settled through catena of judgments that while considering an application under Order VII Rule 11 it is only the contents of the plaint along with the documents of the petitioner, if any, which can be considered to see if any valid ground for rejection of plaint is made out. The defence which is set up in the written statement or by the defendant in his application under Order VII rule 11 CPC cannot be looked into as the contentious issues raised by way of application under Order VII Rule 11 can be determined only by way of evidence. For this reference may have been made to the case of Raj Kumar Dhingra Vs. Shri Ramesh Chander Arora 2016 SCC Online Delhi 251, Rakesh Kumar Vs. Umesh Kumar ILR (2009) 5 Delhi 657. The test applicable for determination of application under Order Saumen Ray Vs. Satya Narayan Das Gupta Page 12 of 24 VII Rule CPC is whether the averments in the plaint if taken to be correct in the entirety, a decree can be passed. Such averments have to be taken as a whole and it is not admissible to cull out a sentence or a passage or to read it in isolation out of context as has been observed in Hardesh Ores (P) Ltd. Vs. Hede and Company (2007) 5 SCC 614. The defence which may be set up by the defendant cannot be looked into as has been held in Maharaja Jagat Singh Vs. Lt. Col. Bhawani Singh AIR 1996 Delhi 14. Further, where the validity of a document has been challenged, the provisions under Order VII Rule 11 CPC shall not be applicable for it is a matter of defence as has been held in Sukhpal Singh Vs. State of Rajasthan AIR 1998 Rajasthan
103. In case the plaint raises triable issues, then the plaint cannot be rejected at the outset as has been observed in Canara Bank vs. Gurmukh Singh AIR 2000 Delhi 48.
18. Having stated the principles for determination of the application under Order VII Rule 11 CPC it has to be seen whether the Revocation petition under Section 263 discloses any cause of action or is liable to be rejected under Order VII Rule 11 CPC. The main ground agitated by the respondent are that it does not disclose any cause of action as provided under Order VII Rule 11 (a) and is barred by law as provided under Clause (d) of Order VII Rule 11 CPC.
19. Part 9 of Indian Succession Act 1925 deals with Probate, letters of administration and administration of assets of deceased. Section 217 provides that all grounds of Probate and letter of administration with the Will annexed shall be made or carried out in accordance with the provisions of this Part. Section 222 declares that Probate shall be granted only to an executor Saumen Ray Vs. Satya Narayan Das Gupta Page 13 of 24 appointed by a Will. The appointment may be expressed or by necessary implication. Section 223 prohibits grant of Probate to the persons specified there. Section 224 given power to appoint several executors. Section 227 declares that Probate of a Will when granted establishes the Will from the date of death of the testator and renders valid all intermediate acts of the executor as such. Section 273 declares the conclusiveness of Probate. It provides that the grant of Probate shall be conclusive as to the representative title against all the debtors of the deceased and all persons holding the property which belongs to him. Section 263 of Indian Succession Act provides the grounds for revocation or annulment for just cause. Cause of Action:
20 The Applicant has filed the application under Section 263 for Revocation of the Probate granted by order dated 03.06.2016. Section 263 of Indian Succession Act provides the grounds for revocation or annulment for just cause. It provides as under:
"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 any 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 willfully 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."Saumen Ray Vs. Satya Narayan Das Gupta Page 14 of 24
21 The Probate once granted by a court of competent jurisdiction can be revoked by the same Probate court and that too, only on the grounds provided under S. 263 of the Act. In Narbheram Jivram Purohit Vs. Jevallabh Harjivan AIR 1933 Bombay 469 the Bombay High Court had observed that if a Will is not valid or lawful the grant of Probate may be revoked by moving an appropriate application, but such revocation of Probate shall be granted by the same Court which had exercised its testamentary jurisdiction.
22. In Sheoparsan Singh Vs. Ramnandan Singh ILR (1916) Calcutta 694 the Privy Council held that the civil court has no jurisdiction to impugn the grant of Probate by a court of competent jurisdiction. A Probate is conclusive evidence not only of the factum but also the validity of the Will after the Probate has been granted, it is incumbent on a person who wants to have a Will declared null and void, to have the Will revoked.
23. In Ishwardeo Narain Singh Vs. Kamta Devi AIR 1954 SC 280 the Apex Court held that the Court of Probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in a Probate proceeding relates to the genuineness and due execution of the Will and the Court itself is under a duty to determine it and to preserve the original Will in its custody. The Indian Succession Act is a self contained code in so far as the question of making an application for Probate, grant or refusal of Probate Saumen Ray Vs. Satya Narayan Das Gupta Page 15 of 24 or an appealcarried against the decision of the Probate court. This is clearly manifested in the fascicule of the provisions of the Act. The grant of Probate with a copy of the Will annexed establishes conclusively as to the appointment of the executor and the valid execution of the Will. It does no more than establish the factum of the Will and the legal character of the executor.
24. To understand the scope and ambit, it would be first relevant to understand the nature of revocation proceedings.A proceeding for Probate/Letter of Administration is initiated by an application under S.276 or S.278 respectively. S.266 provides that District Judge shall have, in relation to the granting of Probate and Letter of Administration, all the powers and authority vested in him in relation to any civil suit. In case of contention, the petition under Section 263 or for grant of Probate/Letter of Administration has to be tried in accordance with Section 295 of Indian Succession Act. Section 295 reads as under:
295. Procedure in contentious cases.--In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.
25. The Apex Court in Nalini Navin Bhagwati Vs. Chandravadan M. Mehta (1997) 9 SCC 689 had observed that the application under Section 263 for revocation of a Probate shall be treated as a miscellaneous application and may be disposed of on the fact situation in an appropriate Saumen Ray Vs. Satya Narayan Das Gupta Page 16 of 24 case either summarily or after recording evidence. The application for revocation shall not be treated as a suit as has been provided under Section 295 of the Act.
26. In Philo Peter Vs. Divyanathan AIR 1989 Madras 111 this aspect was considered in detail. It was observed that the words used "as nearly as may be" have to be understood in the context of the Act. The legislature itself did not treat the proceedings as a suit for it used the words "as nearly as possible take the form of a regular suit." It indicates that in substance it is not a suit.
The legislature has thought it fit to make a distinction between a regular suit and the proceedings under Section 295 of the Act. The proceedings under Section 295 thus, cannot be termed as a regular suit. Had the legislature intended otherwise there was nothing to prevent it to make it a clear or simple provision to this effect that the proceedings in contentious cases may be converted into a regular suit rather than use the word "as nearly as may be".
27. In Mst Puinbasi Majhiani v Shiba Bhune AIR 1967 Orissa 41 it was opined that "suit" ordinarily must be taken to mean a civil proceeding instituted by a plaint, and so inspite of S.295, the proceedings instituted under the Act should not be taken to mean a suit nor can a decision given in the proceedings be taken to be a decree. Bombay High Court in Thirty Sam Shroff v Shiraz Byramji Anklesaria AIR 2007 Bom 103 which was followed in Ramchandra Ganpatrao Hande v Vithalrao Hande AIR 2011 Bom 136 opined that framers of Law cautiously used the words "as nearly as may be, the form of a regular suit" and it nowhere states that proceeding under the Act shall be a suit under Code of Civil Procedure. Similar are the observations of Madhya Pradesh High Court in Sarla Jaiswal v Jaikishore Jaiswal and Saumen Ray Vs. Satya Narayan Das Gupta Page 17 of 24 others 2018 SCC Online MP 698.
28. It is quite evident from the aforesaid discussion that the revocation of a Probate can be sought by moving an application under S. 263 and the proceedings are merely miscellaneous in nature and under no circumstances do they assume the character of a suit though in contentious matters, evidence may or may not be recorded. The grounds of revocation revolve around the Will and are limited to the grounds enumerated under S263 of the Act. If the grounds of challenge go beyond S. 263 then they are beyond the scope of S.263.
29. The petitioner by way of present petition has not questioned the genuineness of the Will of Smt. Sushama Roy dated 25.02.2013 nor has he questioned the authenticity of the proceedings. His challenge is that Smt. Sushama Roy did not have any right, title and interest in the property to be able to bequeath the same by virtue of the Will. Sh. S.K. Roy during his life time had executed a Family Settlement dated 17.04.1990 by virtue of which he had created only a life estate in favour of Smt. Sushma Roy and after her demise the property was to vest in the petitioner. From these submissions it is evident that essentially the petitioner has challenged the title of Smt. Sushama Roy to execute a Will. The question is whether the question of title can be considered in a revocation petition under Section 263.
30. InIshwardeo Narain Singh (supra) while explaining the nature of probate proceeding, it was held that the Probate Court does not decide any question of title or of the existence of the property itself.
31. In Archana Mishra &Ors. Vs. Dipali Chowdhury and Ors. AIR 2019 Calcutta 34 it was again reaffirmed that in the proceedings for Probate or Saumen Ray Vs. Satya Narayan Das Gupta Page 18 of 24 Letter of Administration; the Probate court does not decide questions of title. It is only concerned with the issues as to whether the documents set forth i.e. a Will has been duly executed by the testator voluntarily and with a free will and whether the testator at the time of execution of the document was of sound mind. The testamentary Court does not determine question of ownership or title to the property, but whether the testator executed his testamentary instrument.
32 The Apex Court in Krishan Kumar Birla Vs. Rajendra Singh Lodha (2008) 4 SCC 300 reiterated that the jurisdiction of the Probate court is very limited and confined only to the question of genuineness of the Will. The questions of title, existence of property, construction of the Will relating to right title or interest of any person are beyond the jurisdiction of Probate court. Similar were the observations made in Babulal Khandelwal &Ors. Vs. Balkrishan D. Singhvi and Ors. 2008 (4) CCC 257 (SC).
33 In DDA Vs. Vijaya C. Gurshaney and Anr. (2003) 7 SCC 301 the Supreme Court again reaffirmed that the testamentary court is only concerned with finding out whether or not the testatrix executed a testamentary instrument of his free will. The grant of Probate or letter of administration does not confer title to the property. It is always open to a person to dispute the title even though the Probate or letter of administration has been granted.
34. Likewise, in Ram Dass Chela of Late Mahant Net Ram Vs. Thakurdwara Radha Krishan 2010 SCC Online Delhi 3085 the Hon'ble High Court of Delhi reaffirmed that a judgment in the Probate case is a judgment in rem; nevertheless the question of title which is the subject matter of Will can always be gone into by a Civil Court; in fact the title of the suit property can be Saumen Ray Vs. Satya Narayan Das Gupta Page 19 of 24 questioned only by a civil Court. The remedy of a person challenging the title is always a separate suit and not by way of an application for revocation under Section 263 of the Indian Succession Act.
35. Again, in Smt. Durga Devi Vs. Smt. Prem Lata Rai &Ors. 2013 SCC Online Delhi 4638 this aspect was brought forth succinctly. The question that arose in the case was whether a suit challenging the ownership in the land in regard which the Will was executed, was maintainable in view of the Probate granted by the Probate Court. It was observed that Section 263 of Indian Succession Act empowers the Probate court to revoke or annul a Probate for just cause for which an application and which, as per the explanation to the said section is deemed to exist where the grant was obtained fraudulently or by concealment of material facts. In this case the appellant/plaintiff was not challenging the title to the subject property of the deceased in respect of which the will was executed but was claiming title to the said property through one of the natural heir of the deceased. It was held that application for revocation was the appropriate remedy.
36. In Rakesh Kumar Juneja Vs. Surinder Pal Kaur 2018 SCC Online Delhi 7746 a suit was filed for passing a decree ordering cancellation of the Will and the formal order based there upon. The question which arose was whether the suit was maintainable or the proceedings should have been initiated under Section 263 of Indian Succession Act. In the said case the petitioners had filed a revocation application on the ground that subject property, in regard to which Probate was granted, had been donated to the petitioner in 1966 by the Testator. It was explained that the petitioners therein were claiming a title in the land by virtue of a Donation deed and not as a Saumen Ray Vs. Satya Narayan Das Gupta Page 20 of 24 natural heir or under the will of the testator but were claiming a title independent of the testator. It was held that the revocation application does not disclose any cause for revocation and the remedy of the petitioner was not by way of revocation, but by way of a suit.
37. This aspect was explained in Krishan Kumar Birla (supra) that a person who would have succeeded to a testator's estate in case of intestate succession would ordinarily have a caveatable interest. However, the interest claimed as caveatable interest must not be one which could have the effect of destroying the testator's estate - any person claiming any interest adverse to a testator or his estate cannot maintain any application before the Probate court and his remedy would be elsewhere. A judgment rendered in Probate proceedings though a judgment in rem would not be determinative of questions of title and questions of title and existence of property are beyond the jurisdiction of the Probate court and the remedy of such person is to file a separate suit.
38 Similar reiteration of law is made by the Apex court in Shanta G.Z. Mehta v Sarla J. Mehta AIR 2004 SC 1238 that the Caveator who denies the title of the testator has no right to contest the will and his remedy is to approach the civil court to agitate the question of title. However, if the Caveator is the natural heir of the deceased then he is entitled to challenge the execution of Will.
39. In Archana Mishra (supra) an application was filed for grant of Probate in respect of the Will of testatrix. The respondent aside from challenging the genuineness also challenged the title of the testator by claiming that the property had already been gifted by her before the execution Saumen Ray Vs. Satya Narayan Das Gupta Page 21 of 24 of the Will. The Hon'ble High Court observed that while the Probate Court validly decided the question of genuineness of the Will and its due execution, it could not have gone into the issue of title by determining the validity of the gift deed and holding it to be a fake document. It was thus, reaffirmed that the Probate court can only consider the validity of title of the testatrix in the bequeathed property.
40. The facts involved in the present case are similar. Here the petitioner is challenging the title of Smt. Sushama Roy, the testatrix to the suit property and is asserting that she had no right title in the property in respect of which she could have executed the Will. His claim is based on an independent document viz; Family Settlement executed by S. S.K. Roy, the original owner,according to which Smt. Sushama Roy had merely got the right to live in the property and he was the subsequent beneficiary who had got the property rights. The petitioner is not the natural heir; he is not even the class I or Class II heir of Smt. Sushama Roy whose Will he seeks to challenge. His claim if accepted would have the affect of destruction of right, title in the property in questionof Smt. Sushma Roy. Such complex issues in regard to the nature of Family Settlement which infact is a Trust Deed; whether it was ever accepted and acted upon and ancillary matters cannot be considered under Section 263 by way of revocation petition which as already discussed above, is only a miscellaneous application to be decided on the limited grounds provided under Section 263. The Revocation application thus, fails to disclose any cause of action and Applicant has no locus standi to file the Revocation application.
41 A feeble attempt was made by the Applicant to bring his case under Saumen Ray Vs. Satya Narayan Das Gupta Page 22 of 24 S293 Explanation (1)by claiming that the grant was "defective in substance"
as it was made without issuing a citation in his name or carrying out a publication in Kolkatta. The publication of the citation was effected through newspapers Indian Express and Jansatta dated 18.09.2015 which did not have any circulation in Calcutta and, therefore, he did not get any information.
42. In Lynette Fernandes v Gertie Mathias (2018) 1 SCC 271 it was noted that the probate could be revoked for "just cause" and S.263 makes it very clear what "just cause" means and includes. The explanation to this Section further clarifies that "just cause" shall be deemed to exist where the proceedings to obtain the grant was "defective in substance". However, mere non-issuance of citation at a place where the property was situated does not render the proceedings defective in substance.
43 In the present case even if the assertion of Applicant is accepted that the Newspapers in which citation was issued, did not have circulation in Kolkatta, would not amount to "defective in substance" for the simple reason that the property was located in Delhi and the Class II heirs of the deceased were also resident of Delhi. The Applicant, as already observed above, had no locus as he was not the legal heir of the deceased and there was no reason to issue citation in Kolkatta. Mere non-issuance of citation at Kolkatta where Applicant was residing would not render the proceedings defective in substance.
44. A feeble attempt was also made by the Applicant to set up a plea of Fraud. It was asserted that sometime in 2014 Respondent No. 1 had enquired from him if Late Sh. S. K. Roy had left any testamentary document to which applicant had answered in affirmative but did not feel the need to reveal any Saumen Ray Vs. Satya Narayan Das Gupta Page 23 of 24 further. The Applicant has claimed that despite being aware of the testamentary document, Respondent No. 1 failed to disclose about it in the Probate proceedings. This is a self defeating submission for as the Applicant himself neither did he disclose any details of the testamentary document nor did he ever provide any copy to the Respondent No. 1. It may be noted that the Family Deed now being produced by the Applicant is not like a usual will but is in the form of Trust Deed which has its own unique characteristics. Also, as per the submissions of Applicant himself, aside from a vague response Respondent No. 1 had no clue about this document; once he was not aware of the existence of the document the question of disclosing it in the Probate proceedings did not arise.
45. The Applicant has not been able to show any "just cause" as visualized by Section 293 and no cause of action is disclosed in the application. The application filed by the Applicant fails to disclose any cause of action; the application of respondent no.1 under Order VII Rule 11 CPC is allowed and the application under Section 263 of Indian Succession Act for revocation of probate is hereby dismissed. File be consigned to Record Room. NEENA Digitally signed by NEENA BANSAL BANSAL KRISHNA Date: 2020.10.26 KRISHNA 11:19:45 +0530 ANNOUNCED in the open Court (Neena Bansal Krishna) today on 21st day of October, 2020 Principal District & Sessions Judge South East, Saket Courts, New Delhi.
Saumen Ray Vs. Satya Narayan Das Gupta Page 24 of 24