Allahabad High Court
Rati Pal Singh vs Ram Karan Singh on 10 January, 2020
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 24/Reserved Case :- FIRST APPEAL FROM ORDER No. - 145 of 1998 Appellant :- Rati Pal Singh Respondent :- Ram Karan Singh Counsel for Appellant :- S.S.Chauhan,D.K.Singh Chauhan,Gyan Singh Chauhan,R.B. Singh,Suraj Narain Srivastava,Vijai Kumar Counsel for Respondent :- S.N.Srivastava,Suraj Narain Srivastava Hon'ble Rajnish Kumar,J.
1. Heard, Shri D.K.Singh Chauhan, learned counsel for the appellants and Shri Suraj Narain Srivastava, learned counsel for the respondents.
2. This First Appeal From Order has been filed against the judgment and order dated 19.03.1998 passed by the IV Additional District & Sessions Judge, Unnao by means of which application under Section 263 of the Indian Evidence Act has been allowed and the letter of administration issued in favour of the appellant by means of order dated 01.03.1980 passed in Misc.Case No.29 of 1979 has been revoked and the application filed for inquiry in regard to blurring the standard thumb impression has been rejected.
3. The brief facts of the case for adjudication of the present appeal are that the appellant had filed a petition under Section 278 of the Indian Succession Act, 1925 (Here-in-after referred as Act of 1925) for grant of letter of administration before the District Judge, Unnao on the basis of an unregistered Will deed dated 06.10.1978 executed by one Smt. Rani Kunwar widow of Shri Kailash Singh, who had died on 6th of April 1979 in Village Jatsara, Pargana Daundiya Khera, Tehsil Purwa, District Unnao. The petition was registered as Civil Misc. Case No.29 of 1979, which was filed arraying the estate of Mst.Rani Kunwar as opposite party. The petition was allowed and the order was passed for issuance of letter of administration on 01.03.1980. Consequently the letter of administration was issued.
4. The respondent/Ram Karan Singh (now deceased) filed an application under Section 263 of the Indian Succession Act for revocation or annulment of letter of administration dated 01.03.1980 granted to the opposite party i.e. the appellant herein. The said petition was registered as Misc. Case No.21 of 1981. During the pendency of the said case an application was filed for inquiry in regard to blurring the standard thumb impression by the respondent i.e. the present appellant, which was registered as Misc. Case no.51 of 1985. The petition under Section 263 of the Indian Evidence Act has been allowed and the application for inquiry has been rejected by means of order dated 19.03.1998 by the Additional District Judge, Unnao. Being aggrieved with the order dated 19.03.1998 passed on Misc. Case No.21 of 1981 revoking the letter of administration, the present appeal has been filed.
5. Learned counsel for the appellant had submitted that a unregistered Will was executed by Smt. Rani Kunwar, the second wife of Late Kailash Singh, who was the grand mother of the appellant, on 06.10.1978 in favour of the predecessors of the appellant. Smt. Rani Kunwar died on 06.04.1979. Thereafter petition under Section 278 of the Indian Succession Act was filed by the appellant for issuance of letter of administration on 30.10.1979, which was allowed after following the due procedure of law by means of order dated 01.03.1980 and the letter of administration was issued.
6. The respondent late Ram Karan Singh after about one and half year filed an application for revocation of letter of administration under Section 263 of the Indian Succession Act without any ground available to him under the said Section. The respondent had claimed that late Smt.Rani Kunwar had executed a registered Will in his favour on 12.04.1979 and she died on 24.07.1979, while she had died on 06.04.1979. Therefore the said Will was prepared after the death of late Smt. Rani Kunwar producing some other lady before the Sub-Registrar. But the learned Court below has misread the evidence on record and not considered the death certificate issued by the District Registrar of Death and Birth as provided under Section 8 and 12 of the Registration of Birth and Death Act 1969, which will prevail over the Pariwar Register as it has been issued under the Central Act while the respondent has claimed the death of Late Smt.Rani Kunwar on 24.07.1979 on the basis of an entry in the Pariwar Register which is issued under Section 109 of the U.P.Panchyat Raj Act.
7. He has filed a copy of the death certificate before this court alongwith a supplementary affidavit which is liable to be admitted in evidence treating it the application under Order 41 Rule 27 of the Civil Procedure Code because merely the lapse of mentioning the correct heading of the application cannot be a ground to reject it as he admitted that the death certificate could not be filed before the Lower Court.
8. He further submitted that late Ram Karan Singh the respondent, was the real brother-in-law of Sambhu who is the son of first wife of late Kailash Singh, who does not fall in any category of relative or even near relative of Smt. Rani Kunwar therefore the claim of respondents is misconceived.
9. He further submitted that the evidence submitted by the respondent do not co-relate with the factum of Will deed as filed by the respondent and the death certificate filed by the respondent has not been issued by the proper authority, therefore, it is also not admissible. He further submitted that Chatrapal Singh the witness of the alleged Will dated 12.04.1979 in his statement has stated that Shiv Balak was not present. Thereafter he said that he was present. O.P.W.4 Ram Karan Singh, in whose favour the Will was executed, stated that he has no relationship with late Smt.Rani Kunwar. He was also not able to tell how many brothers of Kailash Singh were there. He had further stated that his ancestral village is Bahuraj Mau, therefore, he was not resident of Jatsara.
10. He further submitted that learned Court below has failed to consider that the petition filed by the respondent under Section 273 of the Indian Succession Act does not fulfil any of the conditions mentioned in the Section which defines the procedure of revocation of letter of administration. Therefore the learned court below has exceeded its jurisdiction in recording the findings and revoking the letter of administration and the application under Section 278 of the Indian Succession Act filed by the appellant is still undecided. Therefore, a direction is required by this court to decide the petition of the appellant under Section 278 of the Indian Succession Act on merits in accordance with law.
11. The further contention of the learned counsel for the appellant was that the certificate does not give any general power of administration on the estate of the deceased and it does not establish title as heir of the deceased. Therefore, the issuance of letter of administration does not prejudice in any manner to the respondent in case they are legally entitled. It is also settled proposition of law that the grant of letter of administration does not decide the question of title or the question of existence of property.
12. Lastly he submitted that in the instant case there are two Will Deeds i.e. the Will Deed dated 06.10.1978 in favour of the appellant and Will Deed dated 12.04.1979 in favour of the respondent and since the execution of Will Deed dated 06.10.1978 is not mentioned in the second Will Deed dated 12.04.1979, therefore, it cannot be treated as a valid Will Deed.
13. On the basis of above learned counsel for the appellant submitted that the learned Court below has allowed the petition under Section 263 of the Indian Succession Act in an illegal manner, therefore, the impugned judgment and decree dated 19.03.1998 is not sustainable in the eyes of law and is liable to the set aside and the letter of administration granted in faovur of the appellant dated 01.03.1980 is liable to the restored.
14. Learned counsel for the appellant has relied on the Banarsi Dass Versus Teeku Dutta (Mrs.) and another;(2005) 4 SCC 449, Chhotey Lal and others Versus Ram Naresh Singh and others;2018 (36) LCD 1321, Sardar Gurtahal Singh Versus Anand Singh Jagdhari and others;2011 (29) LCD 1158 and H.V.Nirmala and another Versus R.Sharmila and another;(2018) 3 SCC 303.
15. Learned counsel for the respondents submitted that the appellant had filed the application for letter of administration on the basis of an unregistered Will dated 06.10.1978 of late Smt.Rani Kunwar without impleading the respondent i.e. Ram Karan knowingly and deliberately. The application was allowed on 01.03.1980 without following the due procedure of law. On coming to know, the respondent/Late Ram Karan Singh filed an application under Section 263 of the Indian Succession Act, 1925 for revocation of the letter of administration alleging therein that the appellant has fraudulently obtained it knowingly that the registered Will dated 12.04.1979 has been executed by late Smt. Rani Kunwar in favour of Late Ram Karan Singh.
16. He further submitted that Late Smt. Rani Kunwar was the second wife of late Kailash Singh and the respondent Ram Karan Singh was the son of brother of Sundari Kunwar, who was the wife of Shambhu Singh, son of the first wife of late Kailash Singh. Shambhu Singh had died issueless and his wife Sundari Kunwar had gifted his entire land to Ram Karan Singh. The appellant Rati Pal and his witnesses have admitted that Ram Karan used to live with Late Smt.Rani Kunwar and he did his schooling in her village Jatsara. A copy of the Pariwar register Paper No.Ga-165 filed before the trial court also indicates that Ram Karan was living with Late Smt. Rani Kunwar and she died on 24.07.1979. The copy of the Identity Card of R.R.B.N.Inter College and transfer certificate as Paper No.Ga.166 and Ga.184 were also filed to show that Ram Karan used to live at Jatsara.
17. In support of his submission that the appellant had knowledge of the registered Will executed in favour of the respondent, learned counsel for the respondent relied on an objection filed by the appellant in the court of Tehsildar Purwa in the case of Ram Karan Singh Versus Rani Kunwar on 28.06.1979, the case for mutation, which was filed before the trial court as Paper No.Ga.1/18/1. He further submitted that the D.W.1 Rati Pal has also admitted in his cross examination that Sundari Kunwar has gifted her land to Ram Karan and he was present during execution of Will by Smt. Rani Kunwar in his favour. He has stated in his evidence that the Will was written on 06.10.1978 at the Basta of Srivastava Advocate, but it was not registered due to delay and death information of late Smt. Rani Kunwar was given to Dwarka, Pradhan on 3rd day, but did not ask for receipt. He also does not know the date of death of his father. Therefore, the learned trial court has rightly disbelieved his statement and similarly the statement of D.W.2 Ram Balak.
18. He further submitted that the appellant had failed to prove that the due process of law was followed before issuance of letter of administration as he has not taken steps to send citation to Collector office in accordance with Section 283 (2) of Indian Succession Act, 1925. The Munadi was also not done properly because the Munadi was for 12.01.1980, while there was holiday w.e.f. 12.01.1980 to 14.01.1980. He further submitted that the respondent tried to get summon the records from Consolidation Court and post office for verification of Thumb Impression of Late Smt. Rani Kunwar, but everywhere the Thumb Impression was damaged or done blurd. The Thumb Impression experts were examined by the trial court who could also not give the conclusive evidence, therefore, their evidence has also been rejected by the trial court.
19. He also submitted that the registered Will executed in favour of the respondent has not been challenged and the registered Will shall prevail over the unregistered Will. He also submitted that the death certificate was not filed by the appellant before the trial court which has been filed before this court without moving an application under Order 41 Rule 27 of the Civil Procedure Code and the supplementary affidavit alongwith which the death certificate has been filed does not satisfy the conditions of the provision, therefore, the same is not acceptable. The death certificate has been obtained after about 20 years after the death of Late Smt. Rani Kunwar and the same has been filed without any explanation as to why it was not filed before the learned trial court. So far as the judgments relied by the learned counsel for the appellant are concerned, learned counsel for the respondents submitted that they are not applicable on the facts and circumstances of the present case. The appeal has been filed on misconceived and baseless grounds, which is liable to be dismissed with costs.
20. On the basis of above learned counsel for the respondents submitted that the learned trial court has rightly allowed the application of the respondent and revoked the letter of administration issued in favour of the appellant and rejected the application for inquiry in regard to blurring of the thumb impression.
21. I have considered the submissions of learned counsel for the parties and perused the record.
22. The application filed by the appellant under Section 278 of the Indian Succession Act, 1925 for grant of letter of administration on the basis of unregistered Will dated 06.10.1978 executed by late Smt.Rani Kunwar widow of Shri Kailash Singh was allowed by the District Judge by means of the order dated 01.03.1980. The respondent/Ram Karan Singh (now deceased) had filed an application under Section 263 of the Act of 1925 for revocation or annulment of the letter of administration which was allowed by means of the judgment and order dated 19.03.1998. Hence the present appeal has been filed.
23. The application for revocation or annulment of letter of administration was filed by the respondent on the ground that he was not impleaded and served any notice despite being a necessary party as a registered Will deed dated 12.04.1979 was executed in his favour by late Smt. Rani Kunwar. Perusal of the paper No.1/18/1, the application filed by the respondent in the court of Tehsildar, indicates that the appellant had knowledge of execution of the registered Will deed dated 12.04.1979 in favour of Late Ram Karan Singh. The objection is dated 28.06.1979, the certified copy of which has been issued on 16.06.1982. The objection was filed by the appellants, namely, Shri Rati Pal Singh, Anand Pal Singh, Lal Bahadur Singh, Kunwar Bahadur Singh, Vikramjeet Singh, Raj Bahadur Singh, Ram Pyarey Singh and Gaya Singh. Therefore, it is apparent that the appellants had knowledge of execution of registered Will Deed dated 12.04.1979 in favour of Ram Karan Singh, but neither this fact was disclosed nor Ram Karan Singh was impleaded in the petition filed under Section 278 of the Act of 1925 for grant of letter of administration. While the said application was filed by all the aforesaid persons. Therefore, the application was filed without impleading the necessary party and concealing the material fact.
24. As per Section 283(2) of the Act of 1925 the citation is required to be issued and sent to the office of the Collector of the District also calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before grant of probate or the letter of administration. But a categorical finding has been recorded by the trial court on the basis of record of the case No.29/1979 that no such citation had been sent to the office of Collector and the Munadi was done to appear the interested persons in the court of District Judge, Unnao on 12.01.1980 while from 12.01.1980 to 14.01.1980 was holiday. The appellant also could not prove by his evidence that any such Munadi was done though D.W.1 Rati Pal Singh has stated that Ram Karan Singh was present at the time of Munadi. The statement of Rati Pal Singh has been found unbelievable because he could not give satisfactory description of Munadi and also there was contradiction in his statement. Therefore the learned trial court has held that the letter of administration has been obtained by the appellant by concealment of material fact and it had also could not come to the knowledge of the respondent i.e. the applicant, who had filed the application for revocation of letter of administration.
25. The Will deed executed in favour of the appellant has been said to have been proved by Shri Ram Balak D.W.1 and the beneficiary of the appellant Shri Rati Pal Singh has also stated that he was present at the time of execution of Will. It was stated by them that the Will was executed by one Srivastava, Advocate and due to late the same could not be registered. The D.W.1 has stated in his cross examination that the paper was signed by Srivastava Sahab and his clerk while there are no signatures of any Srivastava, Advocate or his clerk on the Will deed dated 06.10.1978 i.e. paper No.4Ga and only writer Shri Yogesh Bajpai, clerk of Shri Madan Mohan Srivastava, Advocate, Unnao is written and the presence of Shri Rati Pal Singh, the beneficiary also creates doubt about it's genuineness and with free will.
26. The unregistered Will dated 06.10.1978 was executed in favour of the appellant Rati Pal Singh (now deceased) and he had claimed that late Smt.Rani Kunwar, who had executed the Will had died on 06.04.1979 in Village Jatsara, Pargana Daundiya Khera, Tehsil Purwa, district Unnao. On the other hand the registered Will Deed was executed by late Smt. Rani Kunwar on 12.04.1979 in favour of Ram Karan Singh (now deceased). The appellant has claimed that Smt. Rani Kunwar had died on 06.04.1979 so she could not have executed the Will deed dated 12.04.1979, but the death certificate of late Smt. Rani Kunwar was not filed by the appellant before the trial court though it was stated by Rati Pal Singh, D.W.1 that he had given information of death to Dwarka, Pradhan on the 3rd day of death, but he had no receipt of the same. However, a certified copy of Prapatra 11 of Swasthya Seva Evam Pariwar Niyojan Nideshalaya, Uttar Pradesh, Lucknow issued on 25.05.1979 by the Nyay Panchayat mentioning the date of death 06.04.1979 of Smt.Rani Kunwar registered on 10.04.1979 was filed as Paper No.Ga1/14.
27. The appellant has filed a copy of the death certificate of late Smt. Rani Kunwar alongwith supplementary affidavit dated 05.11.2017 before this court which has been issued on 12.10.1999 in which the date of death is mentioned as 06.04.1979 and the date of registration is 10.04.1979. Learned counsel for the appellant had argued that the affidavit filed by the appellant may be treated as an application Under Order 41 Rule 27 of the Civil Procedure Code, 1908 and the same may be admitted in evidence because it cannot be rejected merely because of non mentioning of the correct heading on the application. It may be true that the application may not be rejected merely on the ground that the correct provision has not been mentioned on it. However, it should be in accordance with the concerned provision. For considering as to whether the application is in terms of Order 41 Rule 27 or not, the same is reproduced below:-
"27.Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
28. Under the aforesaid provision the additional evidence can be produced if the court from whose decree the appeal is preferred has refused to admit the evidence, which ought to have been admitted or it is established that notwithstanding exercise of due diligence, such evidence was not within his knowledge or could not be produced by him after the exercise of due diligence, but there is no such pleading and prayer in the supplementary affidavit. Therefore the same cannot be treaed an application under Order 41 Rule 27 of Civil Procedure Code. The judgment and order passed in the case of Sardar Gurtahal Singh Versus Anand Singh Jagdhari and others (Supra) is also of no assistance to the appellant. However, certified copy of Prapatra II was filed before the trial court with the same date of death 06.04.1979 and registration 10.04.1979. But the same has not been considered by the trial court. If the entries in the said Prapatra II are found correct, then the Will dated 12.04.1979 could not have been executed by Smt. Rani Kunwar even if it has been proved by the respondents and is a registered Will.
29. From the findings recorded by the learned trial court it is also evident that the thumb impression of late Smt. Rani Kunwar could not be compared with any admissible thumb impression because the same were either torn or done blurd at the places where it could have been. The hand writing expert could also not give any conclusive evidence in regard to the thumb impression of late Smt. Rani Kunwar. Therefore the date of death would be material and is liable to be decided after considering the evidence adduced by the parties in this regard.
30. One of the arguments of learned counsel for the appellant was that the application of the respondent does not disclose any of the grounds mentioned in Section 263 of the Act of 1925. Section 263 is extracted below:-
"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 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."
31. In the aforesaid Section the ground of probate or letter of administration may be revoked or annulled for just cause. The just cause has been explained in the explanation and it can be revoked if it has been obtained by fraud or suppression of material fact. In the present case the appellants had knowledge of the registered Will in favour of Late Ram Karan Singh but neither this fact was disclosed nor he was impleaded in the application. Even otherwise if there is just cause, it may not have been referred in the explanation, the letter of administration can be revoked. But in the present case certified copy of Prapatra II indicating the date of death of Late Smt.Rani Kunwar on 06.04.1979 has not been considered by the trial court and the death certificate produced before this court alongwith supplementary affidavit is with the same date of death 06.04.1979 and registration on 10.04.1979. If it is considered and found correct, the whole case of the respondents may stand demolished because the Will dated 12.04.1979 could not have been executed after death. However, in such circumstances, the case of the appellants would also be liable to be considered afresh in view of the observations made here-in-above.
32. In view of above this court is of the view that the issue of date of death of Late Smt.Rani Kunwar is liable to be reconsidered after considering the certificates filed by the parties by the learned trial court and pass the judgment and order afresh accordingly. If required, the trial court may afford opportunity to the parties to file/lead further evidence in this regard.
33. This appeal is partly allowed. The judgment and order dated 19.03.1998 passed by the IV Additional District & Sessions Judge, Unnao is set aside. The matter is remitted back to the concerned court to decide a fresh in the light of observations made here-in-above in this judgment.
34. No order as to costs.
(Rajnish Kumar,J.) Order Date :-10.01.2020 Banswar