Delhi District Court
(Mpc No.93/06) (Vipul Tandon vs . State) on 24 April, 2007
(MPC No.93/06) (Vipul Tandon vs. State)
: 1:
IN THE COURT OF SHRI RAVINDER DUDEJA
ADDL. DISTRICT JUDGE: DELHI.
MPC No. 93/2006
in
PC No.182/96
Date of institution : 01.6.2005
Shri Vipul Tandon,
S/o Shri S.P. Tandon,
R/o 27, Rajpur Road,
Delhi - 54. ............ Petitioner.
Versus
State. ............ Respondent.
APPLICATION FOR REVOCATION OF PROBATE
GRANTED VIDE ORDER DATED 13.8.1997
APPLICANT :-
i) Shri Sarvinder Singh
through his attorney Mohd. Saleem.
JUDGMENT
1. This is a petition for revocation of probate granted to the petitioner vide judgment dated 13.8.97 passed by the then learned District Judge in respect of the Will dated 15.8.92 (Ex.P1) of late Smt. Nirmal Satyender Singh. Before adverting to the instant application, let me state the brief facts given rise to the filing of present application.
(MPC No.93/06) (Vipul Tandon vs. State) : 2: Petitioner Vipul Tandon filed a petition under Section 276 of the Indian Succession Act for the grant of probate stating that Smt. Nirmal Satyender Singh during her life time executed a Will dated 15.8.92. In para 3 of the petition, he gave the name of sons of the deceased. It has been stated in the petition that as per the Will the deceased has bequeathed all her jewellery, bank accounts, locker and shares to her younger son Sarvinder Singh and her children and flats with servant quarters in property no.27, Rajpur Road, Delhi, have been bequeathed to the petitioner.
2. Citation was published in newspaper 'National Herald' and notice of the petition was given to the sons of the deceased, but neither of the two sons appeared, they were proceeded ex parte. After completion of evidence, the petition was allowed and probate was granted.
3. The revocation application has been filed by Sarvinder Singh stating that the probate has been obtained by the petitioner by making false representation and by concealing material facts. It has been submitted that the petitioner had given wrong residential address of the applicant and his brother. He was aware of the facts that the applicant is settled in UK and his brother in Canada for the past more than 35 years, but he fraudulently and with malafide intention for taking undue advantage and for usurping the property belonging to the deceased (MPC No.93/06) (Vipul Tandon vs. State) : 3: gave the wrong residential addresses of the applicant and his brother in para 3 of the petition. It has further been stated that the service of notice of petition on the applicant and his brother has been manipulated by the petitioner either himself forging the signatures of the applicant or made somebody else to copy the signatures of applicant as the applicant was in UK on 31.5.96, on which date the summons reported to have been received by the applicant on behalf of himself and his brother. It is further stated in the application that the applicant came to know of the fact of grant of probate to the petitioner in the case filed by the applicant for permanent injunction against the petitioner in the court of Civil Judge, Delhi. It is also stated that the applicant had filed two cases against the petitioner, which are pending in the court of Shri Naresh Kumar and Shri Davender Kumar, Civil Judges, Delhi. In the fist case, no copy of any document i.e. order granting probate or Will was supplied to the applicant. However, in the subsequent case, the documents were filed by the petitioner on 27.11.2003 and the copies of the same were supplied to the applicant, from which the applicant came to know of the details of the probate case. It is stated that the Will in question is a forged and fabricated Will and that the mother of the applicant never informed the applicant or his brother about the execution of the Will dated 15.8.1992. It has also been stated that it is highly improbable that a mother would bequeath all her immovable properties to a third person excluding her real sons, who are both taking care of her and used to visit her quite often and the deceased also used (MPC No.93/06) (Vipul Tandon vs. State) : 4: to visit her sons in UK and Canada.
4. The revocation application has been contested by the non applicant/ petitioner Vipul Tandon. The non applicant has taken a preliminary objection that the revocation petition is barred by time. It has been stated that the applicant filed a civil suit bearing No.39/2002 in the court of Smt. Nirja Bhatia, Civil Judge, on 24.1.2002. The non applicant herein filed his written statement in the said court on 01.3.2002 alongwith copy of order dated 13.8.97 vide which the probate was granted. The factum of execution of Will dated 15.8.92 by Smt. Nirmal Satyender Singh had been disclosed in the said written statement. The applicant in this manner had come to know of the probate granted in favour of non applicant on the basis of Will dated 15.8.92 and thus the petition is barred by limitation. On merits, it has been stated that the addresses of the applicant and his brother given in the probate petition were incorrect. It has been denied that the applicant is settled in UK and his brother in Canada for the past 35 years. It has been submitted that the applicant and his brother used to stay at the address given in the petition and were there at the relevant time. It is further stated that summons of the probate case were duly served. It has been denied that applicant was in UK on 31.5.96. It has been submitted that the applicant and his brother had full knowledge of the probate proceedings as they were duly served with the summons of the probate case and that the applicant had concocted the Cock and (MPC No.93/06) (Vipul Tandon vs. State) : 5: Bull Story, which is false. The non applicant has further submitted in his reply that Smt. Nirmal Satyender Singh was not on good terms with the applicant and his brother, therefore, she might not have disclosed regarding execution of the Will to them. It is also stated that at the time of last rites of Smt. Nirmal Satyender Singh, it was clearly told to the applicant and his brother that their mother executed the Will dated 15.8.92 bequeathing her property in favour of non applicant. It has also further been stated that the non applicant served the deceased since his childhood and was always treated by her as her son.
5. In his rejoinder, the applicant has reiterated the averments, which he had made in the petition.
6. On the basis of pleadings of the parties, following issues were framed vide order dated 25.10.2005 by the then learned District Judge :
(1)Whether the probate granted in favour of the petitioner is liable to be revoked/ cancelled in view of the reasons/ objections raised in the revocation petition? OPA.
(2) Whether the revocation petition is barred by limitation and if so, to what effect? O.P - Non applicant.
(3) Relief.
(MPC No.93/06) (Vipul Tandon vs. State) : 6:
7. In his evidence, applicant examined his attorney Shri Mohd.
Saleem as AW1. Mohd. Saleem tendered in evidence his duly sworn affidavit Ex.A1. In his affidavit, he has stated about the averments made in the petition. He has proved the power of attorney as Ex.AW1/1 He has stated in the affidavit that the petitioner, who was living with the deceased, was well aware of the fact that applicant is settled in UK and his brother in Canada for the last more than 35 years, but he fraudulently and with malafide intention and for undue advantage to himself and for usurping the property belonging to the deceased gave wrong residential address of the petitioner and his brother in para no.3 of the petition and manipulated the service of petition upon the applicant and his brother by either himself forging the signatures of the applicant or making somebody else to copy the signatures of the applicant as the applicant was in UK on 31.5.96. The attested copy of the Passports of the applicant and his brother are Mark-A and Mark-B. The copies of the letters dated 11.1.95, 17.2.95 and 12.8.95 have been marked as Mark- C to Mark-E.
8. In his evidence, non applicant Shri Vipul Tandon tendered his affidavit Ex.R1. He has stated in his affidavit that he was adopted by the deceased and deceased Smt. Nirmal Satyender Singh always treated him as her son. He has stated that the applicant had knowledge of Will dated 15.8.1982 since 1994 and the applicant was served with (MPC No.93/06) (Vipul Tandon vs. State) : 7: the notice of probate case but he chose not to contest the probate case as he knew that the Will in question was genuine. He has stated that 27, Rajpur Road, Delhi, was the only place where the applicant always stayed whenever he came to India. He had no other place in Delhi. Copies of Passbooks regarding joint account and the letter kept in envelope with Will in question are proved as Ex.RW1/1 to Ex.RW1/7.
9. I have heard the arguments from the learned Counsels of parties. My issue-wise findings are as under :
ISSUE NO. 1
The revocation or annulment in respect of the grant of probate or letter of administration is permissible under Section 263 of the Act for just cause and explanation appended to. Section 263 of the Act defines the just cause. Section 263 says -
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 justify the (MPC No.93/06) (Vipul Tandon vs. State) : 8: grant, through 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 of account which is untrue in a material respect."
10. Any person having interest in the estate left behind by the deceased, is entitled to oppose the grant of probate and is, therefore, entitled to get compulsory citation. Admittedly, the applicant is the son of the testatrix and, therefore, he has the interest in the estate left behind by the deceased and is, therefore, entitled to get compulsory citation. In the probate petition filed by non applicant, the names of the applicant and his brother with their addresses are mentioned in para 3 of the petition, but the ground on which the revocation is sought is that the non applicant has furnished incorrect address in as much as the applicant and his brother were not in India at the time of filing the petition and the notice of petition was not served at him as he was not present in India at that time and that his signatures acknowledging the receipt of notice has been manipulated by the non applicant. It has been argued by the learned Counsel of applicant that that RW1 in his cross examination has admitted that Sarvinder Singh had left India in year 1970 and shifted to London and Shri Arinder Singh went to (MPC No.93/06) (Vipul Tandon vs. State) : 9: Canada in 1972. Thus, it has been proved that the applicant and his brother were not residing in India at the time of filing the petition or at the time of alleged service of notice or on 31.5.96 i.e. the date of alleged service of notice. It has been argued that the applicant has deliberately not furnished the correct address of applicant and his brother. It is also argued that the story of adoption has been put forth for the first time by the non applicant in his affidavit filed in court, which is not the case of non applicant either in main probate petition or even in the revocation application and, therefore, the story of adoption of petitioner by the deceased is an after thought and may not be accepted. It is also argued that the non applicant in his reply has stated that at the time of last rites of mother of the applicant, he had disclosed about the execution of the Will dated 15.8.92 to the applicant and his brother, while in his cross examination in court, he has stated that he did not inform the applicant of the Will on the death of his mother as at that time he was not himself aware of it.
11. The learned Counsel of non applicant has argued that out of two sons, only one son Sarvinder Singh has challenged the grant of probate and other son Arinder Singh has not challenged the grant of probate. It is argued that the affidavit of AW1 is vague as he has not shown as to who has forged the signature on the notice. The passport of the applicant has not been proved. The applicant has not come in witness box to deny his signature. Process Server has not been (MPC No.93/06) (Vipul Tandon vs. State) : 10 : examined and no expert has been produced to prove the forgery of signature on the notice. It has thus been argued that there is no merit in the revocation application and the same is, therefore, liable to be dismissed.
12. The onus to prove this issue obviously rested on the applicant. The revocation petition has been filed by the applicant through his attorney Mohd. Saleem. Admittedly, the applicant himself has not appeared in the witness box. In the case of Janki Vashdeo Bhojwani & anr. Vs. Indusind Bank Ltd. & Ors., 2005 SC 439. It has been held that power of attorney holder cannot depose in place and instead of principal. The apex court has held that Order 3 Rules 1 & 2 empowers the holder of power of attorney to 'act' on behalf of the principal. The word 'acts' employed in Order 3 Rules 1 & 2 confines only in respect of 'acts' done by the power of attorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal. If the power of attorney holder has rendered some 'acts' in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
(MPC No.93/06) (Vipul Tandon vs. State) : 11 :
13. A perusal of the cross examination of AW1 clearly reflects that the has no personal knowledge of the matter of the applicant and, therefore, he can neither depose on his personal knowledge nor can be be cross examined on those facts, which are in the personal knowledge of the applicant. In cross examination, AW1 has clearly stated that he has not seen Sarvinder Singh signing at any point of time meaning thereby he cannot comment on the signature of the applicant on the notice allegedly received by him on 31.5.96. Only the applicant himself could have come in witness box to deny his signature on the notice dated 31.5.96 in acknowledgment of the receipt of notice. In view of the law laid down by the Hon'ble Supreme Court in aforesaid case, no reliance can be placed on evidence of AW1 Mohd. Saleem. The applicant has not led any other evidence to prove this issue. Notice of the petition was issued to Sarvinder Singh and Arinder Singh for 26.8.96 at the address of 27, Rajpur Road, Delhi. The process server has given the report on oath that Shri Sarvinder Singh met him on 27, Rajpur Road, Delhi and that he received the notice after reading the same. The report given by the process server on oath bears his signature. However, no effort has been made to summon the concerned process server, who gave report in order to prove that the notice was not served to Sarvinder Singh on 31.5.96 at 27, Rajpur Road, Delhi.
14. The plea of the learned Counsel of applicant is that the (MPC No.93/06) (Vipul Tandon vs. State) : 12 : applicant was not in India on the date of alleged service of notice i.e. 31.5.96 as he was in London, however, the best evidence i.e. original Passport has not been produced in court. Only a copy of the Passport has been filed in court, which is not duly proved as original Passport was not produced. Although, it is correct that in the probate petition, the non applicant did not disclose the London and Canada addresses of applicant and his brother, but he has clarified in his cross examination that at that time Sarvinder Singh was residing in India. He has denied the suggestion that he deliberately did not disclose the addresses of UK and Canada so that the service of notice may be manipulated.
15. In view of my aforesaid discussion, I am of the opinion that the applicant has failed to prove that the non applicant has manipulated his signature on the notice or has obtained probate/ letter of administration by making a false representation or playing fraud upon the court and the applicant. Thus, there is no just ground for revocation of the probate/ letter of administration. Issue no. 1 is accordingly decided.
ISSUE NO. 2
16. It has been argued by the learned Counsel of non applicant that probate was granted on 13.8.97, but the revocation application has been filed on 03.6.2005. The contention of the learned Counsel of non applicant is that the petition is barred by limitation having been filed (MPC No.93/06) (Vipul Tandon vs. State) : 13 : after expiry of three years from the date of grant of probate/ letter of administration. It has been argued that the applicant has filed two civil suits, one of them is Civil Suit No.39/02 in the court of Smt. Nirja Bhatia, Civil Judge. The non applicant has filed his written statement in the said case on 01.3.2002 with a copy of order dated 13.8.97 vide which the probate was granted. The factum of execution of Will dated 15.8.92 by Smt. Nirmal Satyender Singh has been disclosed in the said written statement and thus the applicant had the knowledge of the grant of probate in favour of the non applicant. The argument of the learned Counsel of non applicant is that the bar of limitation does not apply in a case where the grant is obtained by playing fraud on the court. In this regard, he has relied on the case of Radhika Khanna Vs. State, 2001 (58) DRJ 540 decided by Hon'ble Mr. Justice K.S. Gupta. In this case, it has been held as under :
"Section 3 - Bar of Limitation - Opposition - Order of probate obtained by fraud and concealment of material facts - Applicant who entered upon to purchase the property filed an application for revoking the order of grant of people on the ground of fraud - Opposed on the ground of time limitation - Whether can be entertained - Bar of limitation will not be attracted - Application allowed - Objections dismissed - Order of probate revoked."
17. No limitation is prescribed for filing an application for revocation of probate in Indian Succession Act. Article 137 of the Limitation Act provides a limitation of three years to file the application (MPC No.93/06) (Vipul Tandon vs. State) : 14 : from the date when the right to apply accrues. In case of Har Narain (deceased) by L.Rs Lalit Kumar Sharma and Ors. Vs. Subhash Chander and others, AIR 1985 Punjab & Haryana 211, it has been held that provisions of limitation do not get automatically excused and that the period of limitation of three years provided in Article 137 will apply. However, the bar of limitation will not be attracted in case the probate has been obtained by fraud as has been held by the Hon'ble High Court of Delhi in the case of Radhika Khanna Vs. State. In the present case, the applicant has failed to prove that the probate/ letter of administration was obtained by the non applicant by playing fraud upon the court and, therefore, the authority cited by the learned Counsel of applicant is not applicable in the present case.
18. The non applicant has proved the certified copy of written statement filed in the court of Smt. Nirja Bhatia, Civil Judge as Ex.AW1/PX2. In para 8 of the written statement Ex.AW1/PX2 the non applicant herein has clearly disclosed about the execution of the Will dated 15.8.92 and the fact of his having obtained the probate of the said Will. He has also proved on record the certified copy of list of documents filed by him in the court of Smt. Nirja Bhatia, Civil Judge, as Ex.AW1/PX3. As per the list, the non applicant herein had filed a copy of letter of administration granted by Shri K.P. Verma, the then learned District Judge in his name with regard to property no.27, Rajpur Road, Delhi. This document was filed in the court on 1.3.2002. All these (MPC No.93/06) (Vipul Tandon vs. State) : 15 : documents were put to AW1 in his cross examination. He has admitted in cross examination that Shri Vipul Tandon has filed the written statement in the civil suit on 1.3.2002 and that after going through the written statement he came to know about the grant of probate by the learned District Judge. It is, thus, evident that the applicant had come to know of the grant of probate at least by 1.3.2002 and thus the revocation petition having been filed on 3.6.2005 being after the expiry of limitation period of three years is clearly barred by limitation. No explanation has been given for condoning the delay in filing revocation petition. The revocation petition is, therefore, barred by limitation. Issue no. 2 is accordingly decided.
ISSUE NO. 3
19. In view of my findings on issues no.1 & 2, revocation petition is dismissed. File be consigned to record room.
Announced in open (RAVINDER DUDEJA)
Court on 24.4.2007 ADDL. DISTRICT JUDGE:
DELHI.