Delhi District Court
Meenakshi Sardana vs Mr. K.P.R. Nair on 30 May, 2023
IN THE COURT OF SH. GAURAV RAO, ADJ-03, NEW
DELHI DISTRICT, PATIALA HOUSE COURTS, NEW
DELHI.
Misc DJ NO. 25/2022
CNR No. DLND01-001762-2022
Meenakshi Sardana
W/o Late Sh. Suresh Kumar Sardana
R/o H-7C, SFS, Saket,
New Delhi-110017.
........Applicant
Versus
1. Mr. K.P.R. Nair
S/o Late Mr. R.P.P. Pillai,
R/o W1, B-126, Wellington
Estate, DLF Phase V,
Gurgaon, Haryana
2. Ms. Saraswathy Amma
W/o Late Mr. Sreedharan Nair,
R/o Kozhipparambil,
Karikkode (PO), Peruva (Via),
Kottayam D.T.-686610,
Kerala (Since Deceased)
2(A) Smt. Ananda Vally,
w/o Late Sh. N.S. Jayan
(Predeceased son of Non applicant no. 2)
PO- Mevelloor, District Kottayam,
Vellor, Kerela -686609
2(B) Ratheesan N.S.,
Uthram Veedu
Ozhinajavalappu (PO)
Hosdurg,
Kasaragod (Dist)
Kerala - 671314
Misc DJ No. 25/22, 26/22 & 34/21 Pages 1/73
2 (C) Satheesan N.S.,
Kanjirakkol Puthiyaveedu,
Pariyaram (PO)
Thondannoor,
Kunnur (Dist)
Kerala - 670502
2(D) Ramesan K.S.
Kozhipparambil,
Karikode PO,
Peruva, Kottayam District,
Kerala - 686610
2(E) Mini KS,
Kozhipparambil,
Karikode PO,
Peruva, Kottayam District,
Kerala - 686610
2 (F) Girija N.S.,
Leela Sadanam,
Puduppariyaram,
Palakkad-67873. ....Non applicants
Misc DJ No. 26/22
CNR No. DLND01-001763-2022
1. Sunder Chathli
since Deceased through his LR
Mrs. Jyotika Oguz daughter
2. Mrs. Jyotika Oguz
D/o Late Sunder Chathli
w/o Mr. Hanifi Oguz
R/o 911, East 9400
South Sandy, Utah 84094,
Misc DJ No. 25/22, 26/22 & 34/21 Pages 2/73
United State of America
........Applicants
Versus
1. Mr. K.P.R. Nair
S/o Late Mr. R.P.P. Pillai,
R/o W1, B-126, Wellington
Estate, DLF Phase V,
Gurgaon, Haryana
2. Ms. Saraswathy Amma (Since deceased)
W/o Late Mr. Sreedharan Nair.
2(A) Smt. Ananda Vally,
w/o Late Sh. N.S. Jayan
(Predeceased son of Non applicant no. 2)
PO- Mevelloor, District Kottayam,
Vellor, Kerela -686609
2(B) Ratheesan N.S.,
Uthram Veedu
Ozhinajavalappu (PO)
Hosdurg,
Kasaragod (Dist)
Kerala - 671314
2 (C) Satheesan N.S.,
Kanjirakkol Puthiyaveedu,
Pariyaram (PO)
Thondannoor,
Kunnur (Dist)
Kerala - 670502
2(D) Ramesan K.S.
Kozhipparambil,
Karikode PO,
Peruva, Kottayam District,
Kerala - 686610
2(E) Mini KS,
Misc DJ No. 25/22, 26/22 & 34/21 Pages 3/73
Kozhipparambil,
Karikode PO,
Peruva, Kottayam District,
Kerala - 686610
2 (F) Girija N.S.,
Leela Sadanam,
Puduppariyaram,
Palakkad-67873.
..........Non applicants
M. No. 34/21
CNR No. DLND01-001762-2022
Soumini Ravikumar
w/o Ravi Kumar
Souparnika
Ettumanoor PO
Kottayam District
Kerala- 686631
........Applicant
Versus
1. Mr. K.P.R. Nair
S/o Late Mr. R.P.P. Pillai,
R/o W1, B-126, Wellington
Estate, DLF Phase V,
Gurgaon, Haryana
2. Ms. Saraswathy Amma
W/o Late Mr. Sreedharan Nair,
R/o Kozhipparambil,
Karikkode (PO), Peruva (Via),
Kottayam D.T.-686610,
Kerala (Since Deceased)
...... Non applicants
Misc DJ No. 25/22, 26/22 & 34/21 Pages 4/73
Date of institution : 05.03.2022 and
05.10.2016 (Misc
DJ No. 34/21)
Date on which reserved for judgment : 30.05.2023
Date of decision : 30.05.2023
Decision : Misc. DJ no.
25/22 & 26/22 stand
allowed and misc.
DJ No. 34/21 stands
dismissed.
JUDGMENT
1. Vide the present common order I shall be disposing of applications bearing no. 25/22, 26/22 and 34/21, filed u/s 263 of the Indian Succession Act 1925, seeking revocation of probate dated 25.11.2014 granted in PC No. 5/14 (hereinafter referred to as the petition/probate proceedings) in respect of Will dated 23.10.2013 of Late Mrs. Rajamma S. Madden.
Applicant Meenakshi Sardana's case/version in Misc. DJ No. 25/2022
2. It is the case of the applicant that the averments in probate petition, filed by Sh. K.P.R. Nair (hereinafter referred to as the petitioner) are/were not only false, frivolous and misconceived but the probate was obtained fraudulently by making false suggestions & concealment of material facts from the court.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 5/73 2.1 It is her case that the probate petition is/was nothing
but a false & concocted ruse of the petitioner, to illegally & malafidely usurp the estate of Late Mrs. Rajamma S. Madden (hereinafter referred to as the testatrix) in collusion & connivance with Ms. Saraswathy Amma who was impleaded as respondent no. 2 in the probate petition (hereinafter referred to as respondent no.2), Mr. Sanjeev Verma and Mr. Om Prakash Arora on the basis of concealment, misstatements & misrepresentation of facts and by playing fraud upon the court.
2.2 It is her case that property No. 21, 21-A/1 & 21-A/2, Tughlak Road, New Delhi-110003 (hereinafter referred to as the suit property no. 1) and property no. 11-A, Prithivi Raj Road, New Delhi- 110001 (hereinafter referred to as the suit property no. 2) (collectively referred to as the suit properties) were owned by Late Ms. Chandnee Widya Madden who was survived by four daughters and one son namely the applicant herein, Late Ms. Raisina Bhatia, Late Ms. Sheila Chaithli, Late Ms. Prem Madden and Late Mr. Santosh Madden.
2.3 It is her case that after the death of Late Ms. Chandnee Widya Madden disputes arose interse the brother & sisters which were resolved by virtue of a judgment dated 13.01.1975 in Suit No. 132 of 1972 and it was resolved that suit property no. 1 shall devolve upon her four daughters i.e. the Applicant herein, Late Ms. Raisina Bhatia, Late Ms. Sheila Misc DJ No. 25/22, 26/22 & 34/21 Pages 6/73 Chaithli & Late Ms. Prem Madden who would be having 25% undivided share each and suit property no. 2 shall devolve upon Late Mr. Santosh Madden.
2.4 It is her case that Late Ms. Prem Madden died on 11.01.1988 without leaving behind any Class I legal heirs and therefore her 25% share in suit property no. 1 devolved upon her sisters and brother, mentioned herein above, to extent of 6.25% share each.
2.5 It is her case that Late Mr. Santosh Madden died on 09.12.2006 leaving behind testatrix as his sole legal heir who inherited his estate and the testatrix also died intestate on 07.12.2013 without leaving behind any Class I legal heirs.
2.6 It is her case that she was shocked to learn about the alleged Agreement to Sell dated 19.10.2013 (hereinafter referred to as the Agreement) and alleged Will dated 23.10.2013 (hereinafter referred to as the Will) which came to her knowledge for the first time on receipt of a copy of the Suit bearing CS(OS) No. 162 of 2020 titled "Om Prakash Arora v. Meenakshi Sardana and Ors." (hereinafter referred to as the Suit) filed before the Hon'ble High Court of Delhi on 04.07.2020, seeking partition of suit property no. 1 on basis of the Agreement allegedly entered into with testatrix for sale of her alleged 6.25% share in the suit property no. 1 and the Will allegedly executed by the testatrix.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 7/73 2.7 It is her case that immediately after the death of
testatrix, the petition was filed seeking grant of probate of the Will claiming the petitioner to be the executor of the Will which petition was disposed of vide order dated 25.11.2014.
2.8 It is her case that besides other lacuna & fraud played by the petitioner, one of the most glaring one, was that the petitioner failed to implead the legitimate beneficiaries to the estate of testatrix i.e. her, being the LRs of testatrix's husband and other sisters and/or their legal heirs.
2.9 It is her case that the petitioner deliberately neither impleaded the aforesaid Legal heirs nor served them with any notice/citation of the pendency of the petition with the sole malafide intention to surreptitiously obtain the probate in collusion & connivance with Mr. Om Prakash Arora and Mr. Sanjeev Verma, fearing that the truth will come to the fore and expose their illegal, fraudulent and sham acts before this Court.
2.10 It is her case that the petitioner deliberately & with malafide intention had only impleaded respondent no.2, alleged to be sister of testatrix and the notice of the petition was allegedly issued only to the said respondent, despite the fact that in terms of the Hindu Succession Act, 1956 she was not even entitled to succeed to the estate of testatrix.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 8/73 2.11 It is her case that testatrix did not have any children,
her husband had predeceased her and in terms of Section 15(1)
(b) read with 15(2)(b) of the Hindu Succession Act, 1956, she being the the LR of the husband of testatrix i.e. was entitled to succeed to the estate of the testatrix.
2.12 It is her case that admittedly, the properties of testatrix had been inherited by her from her Late husband i.e. Late Mr. Santosh Madden and as such in terms of Section 15(1)
(b) and 15(2)(b) of the Hindu Succession Act, 1956 in the absence of any sons and daughters, the said properties would be inherited by the heirs of the husband. It is her case that in terms of Section 8 of the Hindu Succession Act, 1956, the property of a male hindu dying intestate shall devolve upon the heirs specified in Class II of the schedule to the Hindu Succession Act, 1956 which would include his sisters.
2.13 It is her case that admittedly, Late Mr. Santosh Madden & testatrix had no children of their own and as such they had no Class I legal heirs, the father as appearing in class II of the schedule had already expired and the only surviving heirs of Late Mr. Santosh Madden as appearing in clause II of Class II of the schedule were his three sisters i.e. Late Ms. Raisina Bhatia, Late Ms. Sheila Chaithli and her. It is her case that the fact that no notice was issued to her or other Legal Heirs of late Husband of testatrix, as above, clearly shows the malafides of the petitioner in surreptitiously obtaining the probate by suppressing Misc DJ No. 25/22, 26/22 & 34/21 Pages 9/73 the fact about surviving legal heirs. It is her case that the petitioner was legally obligated to implead her and other Legal Heirs of late Husband of the testatrix in the probate proceedings. It is her case that as per the Will, the petitioner is/was one of the major beneficiaries to the estate of testatrix.
2.14 It is her case that page No. 1 of the Will shows the manner in which the 6.25% share in suit property no. 1 has fallen to the share of testatrix and the names of the three sisters of Late Mr. Santosh Madden, as above, also stands mentioned, therefore, when the Will itself mentions the names of the LRs of Late Mr. Santosh Madden who were entitled to the estate of the testatrix in terms of Sections 15(1)(b), 15(2)(b) and Section 8(b) of the Hindu Succession Act, 1956, the non-issuance of notice and deliberate concealment of the same from this Court clearly amounts to fraud having been played upon the court as well as upon her.
2.15 It is her case that moreover, in the Agreement the name of all the three sisters of Late Mr. Santosh Madden, as above, also stands mentioned and as such their non-impleadment, who were to inherit the estate of the testatrix, is clearly malafide.
2.16 It is her case that the probate proceedings are/were materially defective and such defect goes to the root of the matter thereby, vitiating the entire proceedings. It is her case that it is the mandate of law that in all applications for probate, where the Misc DJ No. 25/22, 26/22 & 34/21 Pages 10/73 Will has been annexed, the petitioner is bound to state the names and particulars of all legal heirs upon whom the estate would have devolved in case the deceased had died intestate and serve upon them the notice of probate proceedings before obtaining grant of probate, however, she was never impleaded in the proceedings and/or was never served with any notice/citation of the pendency of the probate case. It is her case that the other two sisters of Late Mr. Santosh Madden, as above, or their LRs were never impleaded in the probate proceedings and/or were never served with any notice/citation of the pendency of the probate case. It is her case that a perusal of the Will would reveal that a list of LRs have been provided therein, however, the petitioner failed to implead and/or issue notice to any one of the said LRs.
2.17 It is her case that the testatrix, prior to her demise, was suffering from various ailments including lung cancer, had been advised bed rest for months at a time and was admitted in the hospital in/around the first week of October, 2013 in Kerala due to the said ailments. It is her case that testatrix was not in a fit state, mentally or physically, to execute the said Will or to understand the nature of such documents and consequence thereof, as is evident from the records of Ramakrishna Hospital where she had expired. It is her case that the petitioner in collusion & connivance with Mr. Sanjeev Verma who is one of the attesting witness of the Will had obtained her signatures by fraud & coercion and that testatrix expired on 07.12.2013 after a prolonged illness whereas the Will was allegedly executed by her Misc DJ No. 25/22, 26/22 & 34/21 Pages 11/73 only one and a half month prior to her demise which itself clearly indicates that the said document is either forged, fabricated or manipulated by the petitioner or has been obtained after exercising undue influence, coercion and taking undue advantage of testatrix's weak mental & physical health. It is her case that the close proximity of the demise of testatrix to the alleged execution of the Will is a suspicious circumstance by itself which clearly indicates that the same was not executed by her in a sound disposing state of mind. It is her case that even the Agreement is entirely forged & fabricated as the proximity as to the date of its execution and the place where the said agreement and Will are alleged to have been executed raise grave suspicion keeping in mind the frail condition of the testatrix at that time.
2.18 It is her case that the testatrix expired on 07.12.2013 and the haste with which the petition was filed on 15.01.2014 after a lapse of only a month shows the fraudulent intention of the petitioner which was to grab the testatrix's estate.
2.19 It is her case that the fraud played by the petitioner is clearly evident from the fact that the Will provides for a list of LRs and the same shows Latha Ramachandran as the daughter in law of the testatrix & Vishnukant Ramachandran as her grandson and Vishnukant Ramachandran, to whom Rs. 1,00,00,000/- stands bequeathed, is in fact the son of the petitioner who is not the son of the testatrix and similarly Latha Ramachandran has been shown as daughter in law of the testatrix to whom Rs.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 12/73 2,00,00,000/- stands bequeathed when in fact the testatrix had no child of her own and as such the question of there being a daughter in law does not arise. It is further her case that Latha Ramachandran is the wife of the petitioner which clearly shows the extent of fraud which has been perpetrated upon the Court.
2.20 It is further her case that the affidavit of evidence was filed by the petitioner, the statements were duly recorded and the petitioner evidence was closed on 23.07.2014 whereupon the matter was listed for final arguments on 12.08.2014and after hearing part final arguments, the matter was again adjourned for further arguments on 22.08.2014. It is her case that without even as much as seeking any liberty of this Court and after Petitioner Evidence stood closed on 23.07.2014, an additional affidavit of PW-2 was filed wherein the aforesaid glaring description was sought to be explained, which additional affidavit filed by the petitioner, clearly exposes the extent of fraud played by him. It is further her case that the petitioner tried to explain the mentioning of his wife and son as daughter in law and grandson by alleging therein that the testatrix used to call other relatives as her brother, sister, daughter in law and grandson etc. and used to treat them like that which explanation is totally hollow and has no basis whatsoever. It is further her case that in fact the Will mentions the petitioner, to whom Rs. 10,00,00,000/- was bequeathed, as nephew and not as a son which exposes the falsity of the aforesaid explanation.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 13/73 2.21 It is further her case that a bare perusal of the
additional affidavit dated 22.08.2014 would reveal that the petitioner has categorically stated that the beneficiaries mentioned in the Will are not brothers & sisters of the testatrix as mentioned therein and are merely beneficiaries under the Will, however, immediately thereafter, the petitioner contradicts himself and states that the persons referred to as brothers & sisters may be brothers & sisters of the testatrix.
2.22 It is further her case that the statement of the petitioner is also contradictory from the contents of the Will and other documents as relied upon by him in as much as the same discloses a number of relatives including brothers & sisters of the testatrix and Legal Heirs of her late husband and the petitioner has failed to show as to for what reasons only respondent no.2 was cited as the sole LR of the testatrix and as to why were the other LRs deliberately excluded from the probate proceedings.
2.23 It is further her case that one Ms. Soumini Ravikumar has also filed objections and on perusal of the same it has come to light that respondent no.2 who was impleaded by the petitioner as the alleged real sister of the testatrix was in fact not her real sister and in fact the said objector has filed a pedigree table on record which clearly shows the extent of fraud played upon the Court, by the petitioner.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 14/73 2.24 It is further her case that the order of probate was not
disclosed at any point of time either to the municipal authorities concerned regarding suit property no. 1 or to her, knowingly fully well that in case the same was disclosed she would have immediately challenged the same and the alleged beneficiary of the Will, with malafide intentions & ulterior motives, at no point in time asserted any right in respect of the said property which clearly shows the fraud perpetrated by the beneficiary and the petitioner.
2.25 It is further her case that a bare perusal of the notice published in the Statesman, New Delhi on 15.02.2014 shows that the same was issued only qua the suit property no. 2 and deliberately failed to mention any other property of the testatrix as mentioned in the Will. It is further her case that such a publication creates a false impression in the minds of the reader that the concerned probate proceedings is only qua the property as mentioned therein thereby discouraging any legitimate objections which could have been raised had all the properties of the testatrix been mentioned. It is her case that moreover, service by way of publication cannot be said to be proper service to the LRs of the testatrix, who ought to have been impleaded in the probate petition.
2.26 It is further her case that the probate of Will is liable to be revoked inasmuch as the same has been published in the Statesman Ltd. which has no circulation in Uttar Pradesh where Misc DJ No. 25/22, 26/22 & 34/21 Pages 15/73 one of the LRs of Ms. Sheila Chaithli was residing and does not have sufficiently wide circulation in the area where the properties of the testatrix are situated. It is her case that the Statesman Ltd. is itself an interested party in the estate of the testatrix as it is a tenant in respect of suit property no. 2 against whom a suit for permanent & mandatory injunction already stands filed for unauthorized and illegal construction.
2.27 It is further her case that same set of counsels are appearing for the Statesman Ltd. and Mr. Om Prakash Arora in the Suit which clearly exposes the collusion between them and thus even the publication in the Statesman Ltd. is clearly tainted on account of collusion and connivance.
2.28 It is further her case that a bare perusal of the Will would reveal that the petitioner, his wife and son are one of the main beneficiaries of the Will and the Will mentions a list of LRs, including many brothers & sisters, to whom Mr. Om Prakash Arora was liable to pay the balance sale consideration from the alleged sale of suit property no. 2 and the petitioner and his family had gained Rs. 13,00,00,000/- from the Will. It is her case that any balance sale consideration left after payment to the LRs so mentioned was to come in the hands of the petitioner leaving him free to distribute the same to any of the family members. It is her case that the petitioner taking advantage of the weak state, both physical and mental of testatrix, in connivance with Mr. Om Prakash Arora has illegally usurped the majority of Misc DJ No. 25/22, 26/22 & 34/21 Pages 16/73 the sale consideration to the detriment of the rightful beneficiaries of the estate of the testatrix by fabricating the Will and further distributed the balance sale consideration to his own wife and son. It is further her case that the malafides of the petitioner are further highlighted from the fact that he has purposely failed to disclose, in the petition, the assets sought to be inherited by him from the Will and has also failed to give particulars as to distribution of the said entire sale consideration.
2.29 It is her case that the Will appears to be shrouded with suspicious circumstances as as a matter of fact, the mother tongue of the testatrix was Malayalam and she had limited education and was able to converse only in broken English. It is further her case that the testatrix used to sign in English but could neither read nor write in English which therefore, raises serious suspicion on the execution of the Will and also the Agreement, especially since she was suffering from a terminal illness and was in a very frail mental & physical state and was not of sound disposing state of mind. It is her case that nowhere in the entire Will it has been mentioned that the contents of the same are explained in vernacular to the testatrix.
2.30 It is her case that there are numerous discrepancies in the Will which are clear & evident from the fact that on the last page of the Will the date "23r" and "Rajamma S. Madden is a House wife" have been added subsequently in different font and the same appears to be type written whereas the other part of the Misc DJ No. 25/22, 26/22 & 34/21 Pages 17/73 Will is printed from a computer and no signatures of the testatrix are there against the said interpolations/additions. It is her case that there are various other interpolation/additions/manipulations in the Will.
2.31 It is her case that a perusal of the Aadhaar Card and death certificate of the testatrix shows her address as 11A/C Bunglow, Prithvi Raj Road, Central Delhi, Delhi-110011 and in the petition itself the petitioner has clearly stated that the testatrix is a permanent resident of 11-AC, Prithvi Raj Road, New Delhi, however, strangely enough, in the Will she has been shown as the resident of 6/486 Madden Villa, Industrial Estate, Puduppariyaram (PO), Palakkad, Kerala-678731.
2.32 It is her case that a perusal of the Will clearly shows that the same has been drafted at the instance of Mr. Om Prakash Arora in collusion & connivance with the petitioner and Mr. Sanjeev Verma to grab the estate of the testatrix and that she is not the author of the same and it has not been drafted at her instance.
2.33 It is her case that a bare perusal of the signatures on the Will would show that the same do not match with the signatures of testatrix and appears to be a clear case of forgery & fabrication which would be demonstrated at the stage of trial. It is her case that various writing on the Will are not in her hand Misc DJ No. 25/22, 26/22 & 34/21 Pages 18/73 writing and is in the handwriting of someone else which clearly exposes the fraud played upon the Court.
2.34 It is her case that probate granted on 25.11.2014 is liable to revoked inasmuch as the connivance of the petitioner, Mr. Sanjeev Verma and Mr. Om Prakash Arora is writ large from the documents placed on record by the petitioner himself as the petitioner and Mr. Sanjeev Verma stood as witnesses to the Agreement for sale of suit property no. 2 allegedly entered into between testatrix and Mr. Om Prakash Arora and further, both the petitioner and Mr. Sanjeev Verma also stood as witnesses to the Agreement for sale of 6.25% undivided share in suit property no. 1 which was executed in New Delhi. It is her case that Mr. Sanjeev Verma was the property broker who had allegedly facilitated the sale of the said properties to Mr. Om Prakash Arora. It is her case that apart from the aforesaid, Mr. Sanjeev Verma also stood as a witness to the Will which had been executed in Kerala just four days after the execution of the Agreement. It is her case that Mr. Sanjeev Verma being the property broker was sought to gain huge amounts from the sale of the said properties and therefore was most interested in the execution of the Will. It is her case that the said facts and events are not mere coincidence but points towards an elaborate scheme of the petitioner, Mr. Sanjeev Verma and Mr. Om Prakash Arora to illegally and with malafide intention take over & usurp the estate of the testatrix and deprive the LRs of their respective shares in the estate.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 19/73 2.35 It is her case that probate granted on 25.11.2014 is
liable to revoked inasmuch as the petitioner in connivance with Mr. Om Prakash Arora and Mr. Sanjeev Verma has surreptitiously sought sale of 6.25% undivided share in the suit property no. 1 and the same is highlighted from the fact that the said share in the property has been allegedly sold for a meager sum of Rs. 1,00,00,000/- whereas the market value of the same at the time of execution of the alleged Agreement was much higher. It is her case that even as per the circle rate of the said property, the value of the 6.25% undivided share was somewhere around Rs. 26,00,00,000/- which further shows that the alleged documents were fraudulently & illegally prepared and that the testatrix did not have an iota of clue about the same.
2.36 It is her case that the Will and Agreement also become self contradictory from for the fact that whereas such an elaborate Will is being claimed to have been executed by her, however, the same misses such a vital factor of the actual price of the share in the said land, especially when the same is located at one of the most prime locations of the capital. It is her case that no evidence, documentary or otherwise has been placed on record to show receipt of the said alleged sale consideration amount and the same only finds mention in the Will. It is her case that even the stamp paper accompanying the Agreement is purchased for a different property i.e. D-392, Defence Colony, New Delhi- 110024 and not for suit property no. 1 which further Misc DJ No. 25/22, 26/22 & 34/21 Pages 20/73 raises grave suspicion on the execution of the same. It is her case that it is apprehended that the aforesaid persons after exercising undue influence and taking undue advantage of the weak mental & physical health of the testatrix, forged & fabricated the Agreement and the Will with the sole intent to illegally take over the estate of the testatrix and deprive her of her legitimate share in the same. It is her case that that a perusal of the stamp paper of the Agreement dated 19.10.2013 further shows that the name of the first party has been mentioned as Om Prakash Arora when in fact Mr. Om Prakash Arora is the second party and in fact, against the name of the second party it has been mentioned as "Not Applicable" thus clearly the present case is a case of fraud & manipulation by Mr. Om Prakash Arora, the petitioner and Mr. Sanjeev Verma for ulterior motives & malafide intentions.
2.37 It is her case that probate granted on 25.11.2014 is liable to revoked inasmuch as suit property no. 2 which was valued at Rs. 171,00,00,000/- as per the circle rate prevalent at the time of execution of the Agreement to Sell dated 20.03.2010, was sought to be sold to Mr. Om Prakash Arora for a sum of Rs. 71,00,00,000/-. It is her case that in Agreement to Sell dated 20.03.2010 the sale was to be conducted through petitioner and it is apprehended that Mr. Om Prakash Arora after purchasing the said property in connivance with petitioner and Mr. Sanjeev Verma has sold the same for a much higher price. It is her case that as per the alleged Agreement to Sell dated 20.03.2010 only Rs. 10,00,00,000/- out the alleged sale consideration of Rs.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 21/73 71,00,00,000/- had been paid by Mr. Om Prakash Arora to the testatrix and further, out of the remaining alleged sale consideration the Will sought to distribute Rs. 39,00,00,000/- to her various LRs. It is her case that the remaining amount of Rs. 22,00,00,000/- has been usurped by petitioner for which no account whatsoever has been given by him.
2.38 It is her case that probate granted on 25.11.2014 is liable to revoked inasmuch as the witnesses to the Will are procured and unnatural witnesses who are complete strangers to the testatrix. It is her case that Mr. Sanjeev Verma is the broker through whom the suit properties have been allegedly sold to Mr. Om Prakash Arora and he stood as a witness only for his own ulterior motives as he was to gain substantial amounts by way of commissions from the sale of the aforesaid properties. It is her case that said witness is not known to the testatrix and has no interest in the welfare of her estate and the said submissions are further fortified from the fact that Mr. Sanjeev Verma i.e. PW-1 in the probate proceedings has failed to even mention much less adduce evidence to show as to how and for how long was he was known to the testatrix. It is her case that the said circumstances raise grave suspicion towards the genuineness of the Will. It is her case that further Ms. Girija N.S. i.e. the wife of Mr. Gopa Kumar K.P. who is the second attesting witness to the Will also gained Rs. 5,00,00,000/- from the Will. It is her case that the falsity of the Will is further highlighted from the fact that the name of Ms. Sumathi Amma alongwith address appears twice in Misc DJ No. 25/22, 26/22 & 34/21 Pages 22/73 the list of LRs mentioned therein and entitled to receive funds out of the sale proceeds.
2.39 It is her case that the present application is well within the period of limitation as she only gained knowledge of the probate proceedings on 04.07.2020 when she received the copy of the plaint alongwith documents in the suit, wherein the copy of the order dated 25.11.2014 passed by this Court granting probate of the Will was annexed.
Applicant Sunder Chathli's case/version in Misc. DJ No. 26/2022
3. Applicant Sunder Chathli has sought revocation of the probate invoking almost the same grounds, taking the same pleas as taken Ms. Meenakshi Sardana and in fact the petition has been filed through Ms. Meenakshi Sardana who has been duly authorized in this regard vide power of attorney dated 19.02.2021. Her additional averments are as under:-
3.1 It is the applicant's case that she is the sole legal heir of Late Mrs. Sheila Chathli who was the sister in law of testatrix and therefore true and rightful beneficiary to the estate of testatrix inherited by her from her husband Late Sh. Santosh Madden.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 23/73 3.2 It is her case that she gained knowledge of the
probate proceedings only through Ms. Meenakshi Sardana on 13.02.2021when she was apprised of the Suit filed before the Hon'ble High Court of Delhi and that she was never cited as a party to the probate proceedings.
Reply of non applicant/petitioner Mr. KPR Nair in Misc DJ No. 25/22
4. It was pleaded that the application is not maintainable in law, is liable to be dismissed as the applicant has no locus standi or cause of action to file & maintain the same. It was pleaded that in view of the Will left behind by testatrix the applicant is not & cannot claim herself to be her heir and is not entitled to any relief.
4.1 It was pleaded that on the demise of her husband, the testatrix became the sole, absolute & individual owner of the suit properties with right to deal with the same at her sole discretion and accordingly, she dealt with her properties during her life time and confirmed the same in her last registered Will. It was pleaded that since the testatrix had dealt with the suit properties, the suit properties cannot and no longer remain her estate, thus the question of the applicant inheriting the same or any part thereof does not arise.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 24/73 4.2 It was pleaded that the applicant has wrongly &
falsely claimed herself to be the heir of the testatrix and that she is not her heir in view of the fact that the testatrix was governed by Marumakkattayam laws and thus on her demise, her estate, as left behind by her, after dealing with the suit properties during her lifetime, will be succeeded by the persons as per her last Will, and/or by her only real sister i.e. respondent no. 2.
4.3 It was pleaded that the application is not maintainable since probate of a Will, when granted, establishes the Will from the date of the death of the testator and it renders valid all intermediate acts of the executor/petitioner. It was pleaded that all the acts done by the petitioner, which are in consonance with the testator's intention as per the Will, are protected and the same cannot be disputed, denied and/or challenged.
4.4 It was pleaded that in the present matter all the acts done by the petitioner were duly accepted by the court as is evident from order dated 04.09.2015 passed in the matter, which has attained finality and now there is nothing to be administered by the petitioner or to be distributed out of the estate of the testatrix and that all anterior acts done by the petitioner cannot be set at naught by the Court.
4.5 It was pleaded that the applicant has not made out any ground which justifies revocation of the probate already Misc DJ No. 25/22, 26/22 & 34/21 Pages 25/73 granted more than 6 years back and it is well settled preposition of law that a probate does not decide any question of title to the property allegedly disposed of by the Will. It was pleaded that the testatrix only directed & authorized the petitioner to distribute money to various named beneficiaries and the applicant has neither shown any interest in the estate as bequeathed under the Will nor she has any interest in the said estate as bequeathed because had that been the case, the applicant would have taken appropriate legal steps immediately on the demise of the testatrix, who died on 07.12.2013 and would not have waited for almost 7 years to assert her alleged right, if any.
4.6 It was pleaded that the application is hopelessly barred by limitation as the same has been filed after more than 6 years of order dated 25.11.2014, vide which the probate was granted, whereas same ought to have been filed within three years.
4.7 It was pleaded that the application is misconceived and has been filed with malafide intention, biased mind & ulterior motive and the applicant is guilty of concealment, suppression, misrepresentation & misstatement and the same is nothing but gross abuse of process of law as well as the court.
4.8 It was pleaded that the application is not maintainable as the petitioner, being the executor of the Will of the testatrix, had already discharged his duties & distributed the Misc DJ No. 25/22, 26/22 & 34/21 Pages 26/73 money to various different persons/beneficiaries as per the Will and submitted the documents in support thereof, besides paying/depositing taxes, including Income Tax of the testatrix, capital gain tax, property tax etc. with the government authorities besides payment of Court fees on the probate after the order dated 25.11.2014 was passed. It was pleaded that the said statement, supported with documents regarding various payments, filed by the petitioner has already been accepted by the court, he has been discharged vide order dated 04.09.2015 and after the distribution of estate of the deceased, nothing is left.
4.9 It was pleaded that application is not maintainable as the applicant has neither stated & disclosed nor impleaded the heirs of other sisters namely Late Ms. Raisina Bhatia and Late Ms. Sheila Chaithli, for the reasons best known to her which also shows the malafide on her part and that she is trying to play hide & seek, harass the petitioner. It was pleaded that the applicant has even not disclosed the date of death of Late Ms. Chandee Widya Madden or the details of legal heirs of Ms. Prem Madden.
4.10 It was denied that the probate petition was false, frivolous & misconceived or that grant of probate was obtained fraudulently by making false suggestion & concealment of material facts from the Court and it was pleaded that it was filed after disclosing all, true, correct & complete facts and there was no false suggestions and/or concealment of any fact much less material facts.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 27/73 4.11 It was pleaded that admittedly the public notice of
the probate petition was published in the news paper at the appropriate time inviting objections, however, no objections were received from any person, including the applicant to the said notice.
4.12 It was admitted that Late Mr. Santosh Madden died on 09.12.2006 leaving behind the testatrix as his sole legal heir, who inherited his estate and that she died on 07.12.2013 leaving behind her last Will and testament dated 23.10.2013 in respect of the property, which is a registered Will. It was denied that she died intestate and it was pleaded that any action for claiming any right in the estate of the testatrix had to be initiated within 3 years from her death and in view of the fact that the applicant was well aware about the said last Will & testament of the testatrix and that she is not her legal heir, she had not taken any action/steps during these 7 years.
4.13 It was denied that only subsequent to the receipt of paper book of the Suit, the applicant came to know that subsequent to the death of the testatrix, a probate petition was filed by the petitioner as executor, seeking the grant of probate of probate of the said Will. It was pleaded that admittedly after completing all the required procedure & formalities, including publication of the public notice/citation in the newspaper, when no objection was received by the Court from any person Misc DJ No. 25/22, 26/22 & 34/21 Pages 28/73 whosoever, including the applicant, the Court granted the probate of the Will.
4.14 It was denied that there are lacunas or fraud was played by the petitioner on the Court and it was pleaded that as per the Will, the applicant is not one of the legal heirs of the testatrix and was thus not required to be impleaded in the probate petition as she was neither necessary nor proper party. It was pleaded that the other sisters of late Mr. Santosh Madden were also not impleaded being neither necessary nor proper party as they were not the legal heirs of the testatrix in view of the fact that she left behind her last Will and testament, as aforesaid. It was denied that petitioner deliberately neither impleaded the aforesaid persons nor served them with any notice/citation of the pendency of the probate case with the sole mala fide intention to surreptitiously obtain the probate in collusion & connivance with Sh. Sanjeev Verma and Sh. Om Parkash Arora.
4.15 It was pleaded that the testatrix, during her life time, entered into an agreement to sell her right, title, share, claim and interest in suit properties against valuable consideration and in fact the said agreements have nothing to do with the probate petition, as the Court while granting probate/Letters of Administration has limited jurisdiction and cannot go into the aspect of title. It was pleaded that since the testatrix left behind her last Will & testament, which was duly registered with the Sub Registrar of Assurances, the alleged provisions of the Hindu Misc DJ No. 25/22, 26/22 & 34/21 Pages 29/73 Succession Act, which the applicant is referring and trying to rely upon were not applicable.
4.16 It was pleaded that respondent no. 2 being the only sister of the testatrix was a necessary & proper party to the probate petition and it was denied that the applicant is/was one of the LRs of the testatrix. It was pleaded that the provision of Section 15 of the Hindu Succession Act, 1956, is applicable if the female Hindu dies intestate, which is not the case in the present matter as the deceased left behind her last Will & testament and her estate was distributed as per the said Will. It was pleaded that after the demise of Mr. Santosh Madden, his wife i.e. testatrix inherited the property and became the full, sole, absolute & exclusive owner with full rights & title and thus was competent to execute her Will and bequeath the property. It was pleaded that section 8 of the Hindu Succession Act also deals with the situation where the Hindu male dies intestate and the principles of the alleged provisions were/are not applicable in view of the last Will and testament left behind by the testatrix.
4.17 It was denied that as per the Will, the petitioner was one of the major beneficiaries to the estate of the testatrix and it was pleaded that various persons were named as beneficiaries, by the testatrix, to whom the amounts so bequeathed have already been given & distributed and the Court has already accepted various payments made by the petitioner and after having been satisfied about the same, the Court discharged the petitioner.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 30/73 4.18 It was denied that the applicant or her other sisters
were the proper, legal beneficiary of the estate of the testatrix and it was pleaded that the names of the beneficiaries were duly mentioned in the Will by the testatrix who did not mention and/or referred to about the applicant or her other sisters in the same, which clearly proves that she did not wish or want to give anything /any money to the applicant and/or her other sisters.
4.19 It was denied that the probate was obtained by the petitioner fraudulently by making false statements and by concealment of facts by only sending the notice to a third party who was not entitled to even succeed to the estate of testatrix or that the petitioner deliberately & mischievously concealed the fact that it was the applicants who are/were entitled to succeed to the estate of the testatrix and it was pleaded that the notice was sent to respondent no. 2, the real sister of the testatrix, as she was a necessary and proper party to the probate petition.
4.20 It was denied that in the Will the names of the LRS of late Mr. Santosh Madden were also mentioned who allegedly inherited the estate of the testatrix and it was pleaded that the petitioner had mentioned the name & other details of the real sisters of the testatrix in the probate petition.
4.21 It was denied that the testatrix, prior to her demise, was suffering from various ailments including lung cancer and Misc DJ No. 25/22, 26/22 & 34/21 Pages 31/73 due to her failing health had been advised bed rest for months at a time and it was pleaded that the applicant has neither mentioned any date nor any month when the alleged advice for the bed rest for months at a time was given and it was pleaded that the alleged ailments, if any, were not as serious as could have affected her mental faculties or could have prevented her from executing the Will. It was denied that the testatrix was not in a fit state, mentally or physically, to execute the Will or to understand the nature of such documents and consequences thereof. It was pleaded that the testatrix not only executed & registered her last Will by visiting the office of the Sub Registrar of Assurances but also executed & registered various other documents qua her other properties which itself falsifies the facts alleged by the applicant. It was pleaded that the act of registration of the Will besides other documents in and around the said time period, clearly suggest that the testatrix was in proper & fit mental state of health, mind and these various documents were duly executed & registered by her of her own volition, free will & accord and without any force, fraud, pressure, coercion or undue influence. It was denied that the close proximity of the demise of the testatrix to the alleged execution of the Will is a suspicious circumstance by itself which clearly indicates that the same has not been executed by her in a sound disposing state of mind. It was pleaded that the testatrix died more than one and half month after execution & registration of the Will and that the time gap between the date of execution of the Will and her death has nothing to do to invalidate the Will. It was denied that the said Misc DJ No. 25/22, 26/22 & 34/21 Pages 32/73 documents are forged or fabricated and it was pleaded that the petitioner has not committed any forgery whatsoever.
4.22 It was denied that due to the alleged ailments, the testatrix was not in a fit state, mentally or physically and was not of sound disposing state of mind and thus it becomes inconceivable that a women with such health conditions (as alleged) executed an agreement to Sell in Delhi on 19.10.2013 and thereafter executed the Will on 23.10.2013 in Kerala and then came back to Delhi for attestation of the Agreement to Sell dated 19- 10-2013 on 30-10-2013. It was pleaded that the notary public is required to attest a document to the effect that the person has signed the document in his presence and in case a document already stood signed on 19-10-2013, the question of it being notarised after 11 days i.e. on 30-10-2013 simply does not arise. It was pleaded that a document which is executed earlier can be attested by a notary public on a subsequent date if the notary public is satisfied that the document was duly executed by the parties concerned and that the Court exercising the testamentary jurisdiction is not required to look into the title of the properties or title documents thereof as the basic concern of the court is to ensure that the document produced before it is the last Will & Testament of the deceased and that the same is duly executed, attested by two witnesses.
4.23 It was denied that the alleged fraud allegedly played upon the Court, by the petitioner, is evident from the fact that in Misc DJ No. 25/22, 26/22 & 34/21 Pages 33/73 the Will Latha Ramachandran has been shown as daughter-in-law of the testatrix, Vishnukant Ramachandran as her grandson and it was pleaded that she used to treat the petitioner as her son and that is why Latha Ramachandran has been shown as daughter-in- law and Vishnukant Ramachandran as the grandson. It was pleaded that the proceedings held in the probate petition matter are matter of judicial record and it was denied that any alleged glaring description was sought to be explained or that the additional affidavit filed by the petitioner exposes the alleged fraud stated to have been played by the petitioner. It was pleaded that the contents of the additional affidavit dated 22-08-2014 are matter of record and it was denied that immediately thereafter, the petitioner contradicted himself and stated that the persons referred to as brothers and sisters may be brothers and sisters of the testatrix or that the very credibility of the petitioner itself crumbles and fails to inspire any confidence with respect to the actual facts of the case or shows that he is either unaware or suppressing the real facts including that pertaining to the legal heirs of the testatrix.
4.24 It was pleaded that the application, filed by Ms. Soumini Ravikumar, has been filed with malafide intention, biased mind and ulterior motive and that the mother of the said applicant was one of the beneficiary under the Will and who received, accepted the money and acknowledged the receipt of the same from the petitioner, out of the estate of the testatrix as per Will. It was pleaded that the pedigree table filed by the said Misc DJ No. 25/22, 26/22 & 34/21 Pages 34/73 applicant is wrong & incorrect and she has no right, title, share, claim or interest in the estate left behind by the testatrix. It was pleaded that the applicants have failed to disclose as to in which class of legal heirs, the said applicant falls.
4.25 It was pleaded that it was not the duty/obligation of the petitioner to disclose about probate order to the municipal authorities and/or to the applicant and he being the executor of the Will was only required to execute the Will as per the Will, the directions given by the testatrix in the Will.
4.26 It was denied that the grant of probate of the Will suffered from material defects which goes to the root of the matter thereby vitiating the grant of the probate and it was pleaded that the notice/citation was published by the Court and mere non mention of all the properties left behind by the testatrix is irrelevant, cannot be a ground for nullifying the Probate after more than 6 years.
4.27 It was pleaded that the notice/citation clearly states about the Estate of the testatrix i.e. Late Smt. Rajamma S. Madden (more specifically property No. 11-A, Prithvi Raj Road, New Delhi) and the mentioning of 'Estate of late Smt. Rajamma S. Madden' was/is sufficient and each & every property of the testatrix cannot be mentioned and thus was not mentioned, as the 'Estate' covers each & every property of the testatrix. It was denied that the applicant was/is one of the LRS of the testatrix or Misc DJ No. 25/22, 26/22 & 34/21 Pages 35/73 that service by way of publication cannot be said to be a proper service. It was pleaded that the said notice/citation is very clear, unambiguous and the applicant is just raising the objection for the sake of it.
4.28 It was denied that one of the alleged LR was residing in Noida or that the said newspaper has no circulation in U.P or that publication of citation has to be in each and every city/state where the LRS or one of the LR is residing.
4.29 It was denied that the probate is liable to be revoked as the newspaper The Statesman (not the Statesman Ltd., as stated by the applicant) does not have sufficient wide circulation in the area where the properties of the testatrix were situated or that the Statesman was/is an interested party being the tenant in the suit property no. 1 and it was pleaded that the right, title and interest, if any, of the Statesman Ltd, as a tenant, has nothing to do with the publication of citation in the newspaper. It was pleaded that the said newspaper has merely published the notice/citation, as per the orders of the Court and had the said tenant any malafide intention, it would have filed objections to the probate petition, being general public, but it has not done so.
4.30 It was denied that same set of advocates are appearing for both the Statesman Ltd and Shri Om Prakash Arora and it was pleaded that the Statesman, who is a tenant in a part of suit property No. 1, was/is not a party to the probate petition.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 36/73 4.31 It was denied that the Will is shrouded with
suspicious circumstances and it was pleaded that even the applicant is not sure that is why the applicant has alleged that the Will "appears" to be shrouded with suspicious circumstances. It was admitted that the mother tongue of the testatrix was Malayalam, however, it was denied that she had limited education and was able to converse only in broken English. It was pleaded that the testatrix was senior nursing staff in a reputed Lady Harding medical college and hospital for over 30 years and was conversant with the English language and used to sign in English. It was denied that she could neither read nor write in English.
4.32 It was denied that there are numerous discrepancies in the Will and it was pleaded that the words/fact that "Rajamma S. Madden is a House wife" was added to show her status at the time of execution of the Will and the additions thereof do not in any manner make the WILL and/or bequeath made there under void or suspicious. It was denied that there are various other interpolations/additions/manipulations in the Will which are apparent from a bare perusal of the same and it was pleaded that the applicant has raised a vague & evasive ground without stating or mentioning the alleged other interpolation/additions/ manipulations which goes to the root of the document or bequeath made there under.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 37/73 4.33 It was pleaded that mere addition of the word
'Bunglow' in the death certificate of the testatrix does not in any manner affect the legality and validity of the Will and it was pleaded that the address of Palakkad (Kerala) has been mentioned as the Will was signed and executed at the said address, where the testatrix was residing at the time of signing, execution and registration of the Will. It was pleaded that a Will can be executed by any person anywhere in the world and the address on the deed of Will, will be where the same is signed & executed and not his/her permanent address.
4.34 It was denied that the Will was drafted at the instance of Mr. Om Prakash Arora in collusion with the petitioner and Mr. Sanjeev Verma to grab the estate of the testatrix and it was pleaded that there is no reason or occasion for grabbing her estate as under the Will she has bequeathed the money to various persons known to her/her own relatives and all the named beneficiaries have received, accepted and acknowledged the receipt of the amounts as bequeathed by the testatrix to him/her under the Will, without any objection, protest or reservation.
4.35 It was denied that a bare perusal of the signatures on the Will would show that the same do not match with the signatures of the testatrix or that the same appears to be a clear case of forgery & fabrication. It was pleaded that the Will is a registered one and the testatrix appeared in person before the Sub-Registrar of Assurances for getting the same registered and Misc DJ No. 25/22, 26/22 & 34/21 Pages 38/73 furthermore the applicant has not filed any document of the period, when the Will was executed, to show & compare the signatures of the testatrix on the Will with any other signatures of hers, admitted by the applicant. It was denied that there are various writing on the Will which are not in the hand writing of the testatrix but are in the hand writing of someone else and the applicant has failed to explain as to in whose hand, the writings are.
4.36 It was pleaded that merely because a person is a witness to the document, it does not prove that there is a connivance, as is alleged and that a witness to a deed or a document has very limited role to play. It was denied that Shri Sanjeev Verma was the property broker in the said dealings between the testatrix and Mr. Om Prakash Arora or that he facilitated the sale of the suit properties to Mr. Om Prakash Arora. It was pleaded that the petitioner is not aware that Mr. Sanjeev Verma sought to gain huge amounts from the sale of the suit properties and therefore was most interested in the execution of the Will and it was denied that the alleged facts & events are not mere coincidence but points towards an elaborate scheme of the petitioner, Mr. Sanjeev Verma and Mr. Om Prakash Arora to illegally & with malafide intention take over & usurp the estate of the testatrix and to deprive the LRs of their respective shares in the estate.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 39/73 4.37 It was denied that the probate is liable to revoked in
as much as the witness to the Will are procured & unnatural witnesses who are/were completely strangers to the testatrix or that merely because Ms. Girija N.S. wife of Mr. Gopa Kumar K.P., the second attesting witness to the Will, was named as one of the beneficiary, the same makes the Will void or raises any suspicious circumstances or that Shri Sanjeev Verma attested the Will as a property broker and not attesting witness or that he attested the same with ulterior motives as he was to gain substantially. It was pleaded that an attesting witness to a document has very limited role to play and the attesting witness need not to know the contents of the document and/or see the alleged welfare of the estate of the testatrix, as stated and claimed by the applicant. It was denied that the non-mentioning of the period since when Sh. Sanjeev Verma knew the testatrix raise grave suspicion towards the genuineness of the Will.
4.38 It was denied that the probate is liable to be revoked inasmuch as the petitioner in connivance with Mr. Om Prakash Arora and Mr. Sanjeev Verma has surreptitiously sought sale of 6.25% undivided share in suit property No. 1 and it was pleaded that the sale of the said share in suit property no.1 was agreed to by & between the testatrix and Shri Om Prakash Arora. It was pleaded that merely because the property/share in the property is sold at a price less than the circle rate, which is otherwise not admitted, does not mean or prove any malafide and/or that the documents were fraudulently & illegally prepared or that the Misc DJ No. 25/22, 26/22 & 34/21 Pages 40/73 testatrix did not have an iota of clue about the same. It was pleaded that the testatrix was having a very small percentage of share in suit property no.1 and the same was in occupation & possession of tenants/different persons, including the applicant.
4.39 It was denied that late Mr. Santosh Madden had never either asserted or exercised any right, title or interest of whatsoever nature on his 6.25% undivided share in suit property no. 1 or that the same has always been in the possession & control of the remaining co-owners. It was pleaded that admittedly Mr. Santosh Madden never released or relinquished his said right, title, share, claim or interest in suit property no.1 during his life time in favour of any of his sisters including the applicant. It was pleaded that part of the said property has been let out to the tenant, The Statesman, since long and that merely because of alleged possession and/or control of the property, the said right, title, share, claim and interest of Mr. Santosh Madden had never extinguished.
4.40 It was pleaded that as the petitioner was appointed as the sole executor under the Will, there was/is nothing unusual to mention that the sale was to be conducted through him and it was denied that Mr. Om Prakash Arora purchased the suit property no. 2 in connivance with the petitioner or that after purchasing the same, he has sold the same for a much higher price. It was denied that the petitioner has usurped any amount and it was pleaded that he was duly discharged vide order dated 09.04.2015 Misc DJ No. 25/22, 26/22 & 34/21 Pages 41/73 after distribution of the various amounts to various beneficiaries and upon filing of receipts & statement of accounts with supportive documents.
4.41 It was denied that cause of action for filing the present application arose on 04.07.2020 and it was pleaded that there is no cause of action in favour of the applicant.
Additional averments in the reply of non applicant/petitioner KPR Nair in Misc. DJ No. 26/22
5. It was additionally pleaded that the application is not maintainable as the same is hopelessly barred by limitation as as per Article 137 of the Schedule to the Limitation Act 1963, the period of limitation is 3 years from the date of passing of the order of probate or at the most from the date of grant of probate, whereas, the present application has been filed much after 6 years & about 4 months from the date of passing of the order under challenge and more than five years & six months after the discharge of the petitioner vide order dated 04.09.2015.
5.1 It was pleaded that the judgment passed in the probate matter is a judgment in rem and thus when granted, it operated against the entire world including the applicants and therefore the cause of action, if any, for seeking its cancellation accrued from the date of its grant and not from the date of knowledge, as is alleged.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 42/73 5.2 It was pleaded that the application is not
maintainable as the order of revocation, if any, will have no effect as the same shall be prospective and not retrospective and will not in any manner disturb the said distribution of estate of the testatrix already done by the petitioner/executor, who has since been discharged of his duties/obligations under the Will.
5.3 It was pleaded that the application is not maintainable, in view of the fact that the named executor/ petitioner under the Will is the legal representative of the testatrix for all purposes and the estate of the testatrix vests in the named executor immediately on her demise. It was pleaded that it is well settled law that probate of a Will when granted establishes the Will from the date of the death and the executor can dispose of the property of the testatrix immediately after her demise and that the executor, who is a creature of the Will, derives the power and authority from the Will. It was pleaded that the title of the legatees under the Will was completed much prior to the filing of the present application and the Court was satisfied with the due execution & distribution of the estate of the testatrix and thus duly discharged the petitioner/Executor vide order dated 04.09.2015.
5.4 It was denied that the applicants signed & executed a power of attorney in favour of Mrs. Meenakshi Sardana in respect of the present proceedings and it was pleaded that the Misc DJ No. 25/22, 26/22 & 34/21 Pages 43/73 application is not maintainable as the same has not been signed, filed and instituted by a proper & duly authorized person. It was pleaded that the persons who have allegedly signed the alleged power of attorney, have no right, authority and/or competence to sign and execute any such alleged deed of power of attorney. It was pleaded that the alleged power of attorney has nothing to do with the last Will of the testatrix or the estate left behind her and that as per the alleged deed of power of attorney the same is limited & restricted to suit property no. 1 and no other property, whereas the testatrix left behind other properties also as is clear from her last Will. It was pleaded that the alleged deed of power of attorney is also completely silent about the testatrix, the last Will and the estate left behind by her.
5.5 It was denied that the applicants are the sole heirs of Late Ms. Sheila Chathli, who was the sister in law of the testatrix and sister of Mr. Santosh Madden or that they are the true & rightful successors or beneficiaries to/of the estate of the testatrix, so inherited from her husband Mr. Santosh Madden. It was pleaded that the applicants are not even class II heirs, of the testatrix, under the Hindu Succession Act and accordingly not being the LRs, their names were not included in the list of LRs. It was pleaded that the applicants have not disclosed the date of death of Mrs. Sheila Chathli or whether she died intestate or left behind any Will.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 44/73 5.6 It was denied that the applicant came to know about
the probate proceedings from Mrs. Meenakshi Sardana on 13.03.2021.
5.7 It was pleaded that the petitioner has nothing to do with the contents of public notice or the publication dated 15.02.2014 thereof except to pay & deposit the publication charges and that the notice was issued by the court as per the format prescribed. It was denied that the Statesman, Delhi edition has no circulation in Uttar Pradesh or that Mrs. Sheila Chathli is a resident of Noida. It was pleaded that it was the prerogative of the court to get the notice published in whatever newspaper the court felt proper and that as Ms. Sheila Chathli was neither the legal heir nor the beneficiary under the Will nor the court was aware about her address, there was no need or requirement to get the publication in the newspaper having circulation in UP. It was pleaded that publication of public notice has to be in the city where the estate of the deceased/testatrix was situated or where she used to reside permanently.
5.8 It was denied that the Will is a fabricated document or that same has been interpolated and manipulated by the petitioner, Mr. Sanjeev Verma and Mr. Om Parkash Arora and it was pleaded that the applicants themselves are not sure as to who had done the alleged interpolations, admissions etc. It was pleaded that it bonafidely appears that none of the applicants have seen the Will of the testatrix or for that matter her death Misc DJ No. 25/22, 26/22 & 34/21 Pages 45/73 certificate, Aadhar card etc. It was pleaded that the petitioner has not committed any forgery nor has fabricated any document as is alleged.
5.9 It was denied that the affidavit filed the petitioner is/was self contradictory or that both PW1 and PW2 are guilty of concealment of facts, misstatement of facts and fraud.
Reply on behalf of LRs of non applicant/respondent no. 2 Late Smt. Saraswati Amma in Mics DJ No. 25/22 & Misc DJ No. 25/22
6. Exactly similar objections were taken by LRs of respondent no. 2 as were taken by petitioner K.P.R. Nair, as discussed above.
Findings in Misc. DJ No. 25/22 & Misc. DJ No. 26/22
7. I have heard the Ld. Senior Counsels for the parties, given due consideration to the rival contentions raised at bar and have carefully gone through the record. I have also considered the case laws relied upon by the respective parties.
7.1 Ld. Senior Counsel/Ld. Counsels for the applicants relied upon Basanti Devi Vs. Ram Prakash Jaiswal (2008) 1 SCC 267, Manju Puri Vs. Rajeev Singh Hanspal MANU/SC/1569/2019, Yuv Rajnarain Gorwaney Vs. State and Misc DJ No. 25/22, 26/22 & 34/21 Pages 46/73 ors 2005 (125) DLT 401, Manibhai Amaidas Patel Vs. Daya Bhai Amaidas 2005 (12) SCC 154, Swaminathan and ors Vs. Alankamony (dead) Through LRS MANU/SC/0339/2022 and Pallav Sheth Vs. Custodian and ors MANU/SC/0437 in support of his arguments.
7.2 On the other hand, Ld. Senior Counsels/Ld. Counsels for the non applicants (petitioner and respondent no. 2) relied upon Ramesh Nivrutti Bhagwat Vs. Dr. Surendra Manohar Parakhe (2020) 17 SCC 284, Lynette Fernandes Vs.Gertie Mathias (2018) 1 SCC 271, Som Praksah Vs. State and anr FAO No.223/2018 dated 10.10.2022, Pawan Kumar Sharma Vs. Neelam Sharma and anr 2019 SCC Online Del 6758, Snehansu Sen Gupta Vs. Sitangsu Sent Gupta and anr AIR 2018 Del 116 and S.A. Modi Vs. Mrs. T.A. Rana and ors AIR 2004 Bom. 353 to buttress the case of the non applicants.
7.3 The applicants are seeking revocation of the probate granted, by the Ld. Predecessor of this court, vide orders dated 25.11.2014. It is their case that the grant of probate was obtained by the petitioner fraudulently, by misrepresenting facts, concealment of material facts and in collusion with respondent no. 2, Mr. Sanjeev Verma & Sh. Om Parkash Arora.
7.4 Though the applicants have raised several grounds to seek revocation of the probate so granted, however, the main ground on which the applicants are seeking revocation is that the Misc DJ No. 25/22, 26/22 & 34/21 Pages 47/73 petitioner KPR Nair had deliberately, malafidely and fraudulently failed to implead them in the probate petition though they were the legitimate beneficiaries to the estate of the deceased/testatrix Smt. Rajamma S. Madden being the LRs of her late husband Sh. Santosh Madden. It is their case that as the properties/estates were inherited by the testatrix from Sh. Santosh Madden and they had died issueless, it was the applicants who would have inherited the properties/estates left behind by the testatrix. It is their case that instead of impleading them, putting them to notice, the petitioner impleaded Smt. Saraswathy Amma i.e. respondent no. 2, though in terms of Hindu Succession Act 1956 she was not entitled to succeed to the estate of the testatrix and it was the applicants who were so entitled being the Class II legal heirs of Late Sh. Santosh Madden.
7.5 Chapter III of the Indian Succession Act 1925 deals with the Alteration and Revocation of Grants. Section 263 of the Act in this regard is reproduced hereunder:-
"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 Misc DJ No. 25/22, 26/22 & 34/21 Pages 48/73
(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.
Illustrations
(i) The Court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to have been cited.
(iii) The will of which probate was obtained was forged or revoked.
(iv) A obtained letters of administration to the estate of B, as his widow, but it has since transpired that she was never married to him.
(v) A has taken administration to the estate of B as if he had died intestate, but a will has since been discovered.
(vi) Since probate was granted, a later will has been discovered.
(vii) Since probate was granted, a codicil has been discovered which revokes or adds to the appointment of executors under the will.
(viii) The person to whom probate was, or letters of administration were, granted has subsequently become of unsound mind."
7.6 The probate petition was filed seeking probate of Will dated 23.10.2013 of testatrix Late Smt. Rajamma S. Madden by petitioner KPR Nair and he had impleaded the State as respondent no. 1 and Ms. Saraswathy Amma as respondent no. 2. While impleading them the petitioner had mentioned in paras 2, 3 and 4 as under:-
"2. That Smt. Rajamma S. Madden (hereinafter referred to as the deceased), died issueless and the husband of the deceased predeceased her. Thus the deceased has not left behind any Class I heir and legal representative.
3. That the deceased left behind the following heirs and legal representatives:-
(a) Ms. Saraswathy Amma W/o Late Mr. Sreedharan Nair, R/o Kozhipparambil, Karikkode (PO) Misc DJ No. 25/22, 26/22 & 34/21 Pages 49/73 Peruva (VIA), Kottayam D.T.-686610 Kerala.
4. That the deceased left behind no other legal heir except the person whose name has been mentioned herein above."
7.7 However, as per the pedigree chart filed by the applicants and which has not been disputed by the non applicants/respondents or the petitioner, after the death of Smt. Rajamma S. Madden and on account of her husband Mr. Santosh Madden pre-deceasing her (as he expired on 09.12.2006 and Smt. Rajamma S. Madden expired on 07.12.2013) and they being issueless, as per the natural line of succession, the properties/estates left by the testatrix would have devolved upon the applicants i.e. Ms. Meenakshi Sardana and Smt. Sheila Chathli/her LRs being the class II legal heirs, being the sisters of Late Sh. Santosh Madden.
7.8 Section 15 of the Hindu Succession Act 1956 in this regard is reproduced hereunder:-
"15. General rules of succession in the case of female Hindus.--
(1)The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,--
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b)secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1),-- (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-
deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and Misc DJ No. 25/22, 26/22 & 34/21 Pages 50/73
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband."
7.9 Though according to Ld. Senior Counsel for the petitioner, Smt. Rajamma S. Madden did not die intestate, had rather left behind a registered Will dated 23.10.2013 (genuineness of which Will is challenged by the applicants) and therefore the applicants were not a necessary or proper party to the probate petition, however, I find no merits in the said arguments. The fact that the testatrix allegedly left behind a Will that by itself did not absolve the petitioner of his duty to implead all the legal heirs of Mr. Santosh Madden i.e. the applicants. While dealing with the issue whether a particular person is a necessary or a proper party in a probate proceeding, it was held in Yuv Rajnarain Gorwaney (Supra) that it should first be presumed that the testator had died intestate, then the heirs should be ascertained and all the persons who would have been the heirs de hors the Will ought to have been impleaded as party to the probate/letter of administration petition/proceedings. The relevant portion of the judgment is reproduced hereunder:-
2. The learned counsel appearing on behalf of the applicant submitted that the applicant Rajiv Sharma was a necessary and proper party and, therefore, ought to have been cited as a party in the first instance. He submitted that for determining whether a party is necessary or proper in a probate proceedings it should first be assumed that the testator had died intestate and the heir then should be ascertained and all of them, who would, de hors the Will, be heirs according to the personal law of succession, ought to have been imp leaded as parties. This, according to the learned counsel for the applicant, was not Misc DJ No. 25/22, 26/22 & 34/21 Pages 51/73 done and the consequences of not doing so are so grave that as per Section 263 and particularly reading it with illustration
(ii) thereto, it becomes a ground even for revocation of a probate granted. It was pointed out that Smt. Avinash Pandit had no issue. Her husband late Shri Gyan Chand Sharma had pre-deceased her.
3. There is no difficulty in accepting the proposition, that properties which are the subject matter of these probate proceedings were the absolute properties of Smt Avinash Pandit more so in terms of Section 14 of the Hindu Succession Act, 1956. It is to be noted that under Section 15 of the Hindu Succession Act, 1956, the General Rules of Succession in the case of female Hindus are set out. According to Section 15(1)
(a), the properties are, firstly, to devolve upon the sons and daughters (including the children of any pre-deceased son of daughter) and the husband. By virtue of Section 15(1)(b) it is secondly to devolve upon the heirs of the husband. The position, therefore, is that when a female Hindu dies intestate if she survived by her son or daughter or husband then her properties first devolve upon them. In this case late Smt Avinash Pandit did not have any children and therefore, firstly, the properties would have devolved upon her husband. However, her husband late Shri Gyan Chand had pre-deceased her. Therefore, Section 15(1)(a) would not apply in the present case and it would be Section 15(1)(b) which would apply which is the second Rule of devolution prescribed under the provision. Accordingly, the properties would have devolved upon the heirs of the husband.
Section 16 of the Hindu Succession Act, 1956 provides that the order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestate's property among those heirs shall take place according to the three rules set out therein.
4. Rule 1 prescribes that among the heirs specified in sub- section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously. Other heirs of the late Smt Avinash Pandit include the Objector No. 3 who happens to be her brother and would fall under Section 15(1)(d), that is, heirs of the father of the deceased. Upon a conjoint reading of Sections 15 and 16 and in particular Rule 1 of Section 16 it becomes clear that the heirs specified in Section 15(1)(b) would take to the exclusion of heirs specified in Section 15(1)(d). Therefore, it becomes clear that if a female Hindu left any heirs specified under section 15(1)(b), they would in the fact situation obtaining in the present case be the only heirs if succession was to be intestate. Rule 3 of Section 16 also prescribes that Misc DJ No. 25/22, 26/22 & 34/21 Pages 52/73 devolution of the property of the intestate on the heirs referred to, inter alia, in clause (b) of sub-section (1) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the husband's and such person had died intestate in respect thereof immediately after the intestate's death. Therefore, it has to be construed, for the purposes of determining the devolution of the properties of Smt Avinash Pandit, that her husband was alive and he took her entire properties under Section 15(1)(a) and that he too, upon taking the entire properties, immediately died intestate. The devolution of his properties would then be governed by Section 8 of the Hindu Succession Act, 1956 which prescribes a General Rule of Succession in the case of males. Essentially, it prescribes that class I heirs specified in the schedule shall take to the exclusion of class II heirs and so on. The said late Shri Gyan Chand Sharma left no class I heirs and the present applicant would fall under serial No. IV of class II being the brother's son. He would, therefore, be an heir under the Hindu Succession Act to the properties left by Smt. Avinash Pandit had she died intestate. This being the case, I am in agreement with the submissions made by the learned counsel for the applicant that the applicant is a necessary and proper party in these proceedings. It is more so because of the Original Side Practice Direction No. 4 relating to testamentary and intestate jurisdiction of this High Court and, in particular, Rule 3 thereof which reads as under:
"3. In all applications for probate or for letters of administration with the will annexed, the petitioner shall state the names of the members of the family or other relatives upon whom the estate would have devolved in case of any intestacy together with their present place of residence."
Therefore, the Rule clearly prescribes that the applicant ought to have been named in the probate application. That was not done. However, the learned counsel for the petitioner submits that he cannot be faulted on this ground inasmuch as he represents the executor of the Will in question and is an outsider and not a family member. He also submitted that a public notification was carried out in the newspaper as per Rules and that the applicant has come after five years despite being aware of the death of late Smt Avinash Pandit and also being present in the cremation ceremony. Therefore, according to the learned counsel for the petitioner, this application ought not to be entertained. The learned counsel also states that in any event he does not admit the relationship between the applicant and the testator as disclosed by him.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 53/73 However, considering all these aspects of the matter, I am of the view that when the Rules prescribe and the law lays down a particular procedure, the applicant ought to have been made a party in the present proceedings. Moreover, the non-citing of a necessary party can be a ground for revocation of a probate granted under Section 263 of the Indian Succession Act, 1925. If such an eventuality exists, then delay in approaching the court ought not to come in the way of these probate proceedings because after all what the court has to do is to determine as to whether the Will in question was, in fact, the Will left by Smt Avinash Pandit. In this view of the matter, the application deserves to be allowed. The said Shri Rajiv Sharma is imp leaded as respondent/objector No. 4. The application stands allowed accordingly."
7.10 In view of the above legal position, applicant Ms. Meenakshi Sardana and Late Ms. Sheila Chathli, who was alive at the time of filing of the probate petition, should have been impleaded as a necessary and proper party to the probate proceedings, assuming that Smt. Rajamma S. Madden had died intestate. Smt. Rajamma S. Madden and her husband Mr. Santosh Madden did not left behind any issue of their own, Mr. Santosh Madden pre-deceased Smt. Rajamma S. Madden and therefore as per section 15 (1) (b) and section 8, section 9 and the schedule annexed to the Act, the property would have devolved upon the heirs of Mr. Santosh Madden i.e. the applicants and for that matter the other sisters of Mr. Santosh Madden or their legal heirs, if any. The alleged Will disturbed this natural line of succession/ devolution and therefore the non applicants should have been put to notice of the probate proceedings. Furthermore, if arguments of Ld counsel for the non-applicants are to be accepted, then the non-applicants have failed to explain as to Misc DJ No. 25/22, 26/22 & 34/21 Pages 54/73 where was the occasion for Ms. Saraswathy Amma to be cited as a party to the probate petition.
7.11 Section 8, 9 and the schedule of the Hindu Succession Act 1956 are reproduced hereunder in this regard:-
"8. General rules of succession in the case of males.--The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter--
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
9. Order of succession among heirs in the Schedule.--Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.
THE SCHEDULE (See section 8) HEIRS IN CLASS I AND CLASS II Class I Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a predeceased daughter; daughter of a predeceased daughter; widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predeceased son [son of a pre-deceased daughter of pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre- deceased son of a pre-deceased daughter; daughter of a pre- deceased daughter of a pre-deceased son] Class II I. Father.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 55/73 II. (1) Son's daughter's son, (2) son's daughter's daughter, (3) brother, (4) sister.
III. (1) Daughter's son's son, (2) daughter's son's daughter, (3) daughter's daughter's son, (4) daughter's daughter's daughter. IV. (1) Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter.
V. Father's father; father's mother.
VI. Father's widow; brother's widow.
VII. Father's brother; father's sister.
VIII. Mother's father; mother's mother.
IX. Mother's brother; mother's sister.
Explanation.--In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood."
7.12 Therefore the applicants/the sisters being class II legal heirs they were indeed necessary and proper party and should have been cited so in the probate petition. Furthermore it has been held in Seethalakshmi Ammal Vs. Muthuvenkatarama Iyengar and ors MANU/SC/0276/1998 that heirs have to be ascertained not at the time of the husband's death but at the time of wife's death because the succession opens only at the time of her death. The relevant portion read as under:-
"3. This finding proceeds on a misconception of the provisions of the Hindu Succession act. Section 15 of the Hindu Succession act provides general rules of succession in the case of female Hindus. Under sub-section (1), the property of a Hindu female dying intestate shall devolve (a) firstly, upon the sons and daughters(including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband. Gomathi Ammal does not have any heirs falling under
(a). Therefore, we have to examine who are the heirs of her husband. The heirs of a male Hindu are set out in the Schedule to the Hindu Succession Act. Heirs in class I include a widow of a pre- deceased son. The appellant fits this description. But the High Court has held that when Sesha Iyengar, the husband of Gomathi Ammal died, their son Venkatarama Iyengar was alive.
So the appellant cannot be called the widow of a pre- deceased son.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 56/73
4. In order to decide who are the heirs of a female Hindu under category (b) of Section 15(1), one does not have to go back to the date of the death of the husband to ascertain who were his heirs at that time. The heirs have to be ascertained not at the time of the husband's death but at the time of the wife's death because the succession opens only at the time of her death. Her heirs under Section 15(1) (b) will have to be ascertained as if the succession to her husband had opened at the time of her death. Thus, if at the time of Gomathi Ammal's death, there is any heir of her husband who fits the description in the schedule of being the widow of his pre-deceased son, she will be one of the heirs entitled to succeed. The status of the heir must be determined at the time of the death of the female whose heirs are being ascertained. The appellant was the widow of a pre- deceased son on the date when Gomathi Ammal died. Therefore, the learned single Judge was not right in coming to the conclusion that the appellant is not an heir of Gomathi Ammal."
7.13 Section 15 (1) of the Act lays down how the property of a female Hindu dying intestate shall devolve but at the same time section 15 (2) provides that notwithstanding section 15 (1), the property inherited by a female Hindu from her husband or her father in law, in the absence of any son or daughter of the deceased shall devolve upon the husband's heirs and not upon the heirs specified in section 15 (1). Interestingly, Section 15 (2) does not make difference as to whether it is intestate succession or a testamentary one. It will be worthwhile to note the object, rational behind section 15 (2) of the Act as has been discussed in detail in Smt. Dhanistha Kalita vs Ramakanta Kalita And Ors. AIR 2003 Gau 92 as under:-
"15. From the case of Bhagat Ram, AIR 2002 SC 1 (Supra), it transpires that according to the Apex Court's views, if the son or daughter of the deceased Hindu female and/or children of any predeceased son or daughter of such female Hindu are not alive at the time, when the female dies, though she is the absolute owner of the property, the property will actually devolve on the Misc DJ No. 25/22, 26/22 & 34/21 Pages 57/73 heirs of her husband if the property belonged to the deceased female Hindu's husband. Similarly, if such property was inherited by her from her father, the property will devolve upon the heirs of her father if she left no son or daughter (including the children of her predeceased son or daughter). This position of law becomes clear from the observations of the Apex Court, in Bhagat Ram's case, AIR 2002 SC. 1 (Supra), which I quote hereunder :
".............Admittedly, Smt. Santi inherited the property in question from her mother. If the property held by a female was inherited from her father or mother, in the absence of any son or daughter of the deceased including the children of any predeceased son or daughter, it would only devolve upon the heirs of the father and, in this case, her sister Smt. Indro was the only legal heir or her father. The deceased Smt. Santi admittedly inherited the property in question from her mother. It is not necessary that such inheritance should have been after the commencement of the Act. The intent of the legislature is clear that the property, if originally belonged to the parents of the deceased female, should go to the legal heirs of the father. So also under Clause (b) of Sub-section (2) of Section 15, the property inherited by a female Hindu from her husband or her father-in-law, shall also under similar circumstances devolve upon the heirs of the husband. It is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property. We do not think that the fact that a female Hindu originally had a limited right and later acquired the full right. In any way, would alter the rules of succession given in Sub-section (2) of Section 15 ".
16. What logically follows from the above discussions is that though Maheswari's siatus from being a limited owner of the suit property changed into absolute owner thereof with effect from the date of coming into force of the Act of 1956, the fact remains that if she is found not to have left any heirs and successors, who can fall within the ambit of Sub-section (2) (b) of Section 15 , then, the property will pass over to, and devolve upon, the heirs of her husband, Shyamrai.
17. The question, therefore, which, now, needs to be determined is whether the expression "son and daughter" used in Clause (b) of Section 15 (2) means the son and daughter of the deceased Hindu female begotten by her from her husband, whose property she had succeeded to, or the expression "son and daughter" will include the son and daughter of such female, whom she had begotten from a husband other than the husband, whose property the female Hindu had inherited.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 58/73
18. While interpreting the ambit and scope of the expression "son and daughter" (including the children of any predeceased son and daughter), one has to bear in mind the reasons and objects for which Section 15 has been incorporated in the Act of 1956. As reflected from Apex Court's decision in Bhagat Ram, AIR 2002 SC 1 (Supra), the reasons for incorporating Section 15 (2), assigned by the Joint Committee in Clause 17 of the Bill, reads as follows :
"While revising the order of succession among the heirs to a Hindu female, the Joint Committee have provided that properties inherited by her from her father reverts to the family of the father in the absence of issue and similarly property inherited from her husband or father-in-law reverts to the heirs of the husband in the absence of issue. In the opinion of the Joint Committee such a provision would prevent properties passing into the hands of persons to whom justice would demand they should not pass."
19. The Apex Court in the Bhagat Ram, AIR 2002 SC 1 (Supra) has further clarified the position in the following words :--
"The source from which she inherits the property is always important and that would govern the situation. Otherwise persons who are not even remotely related to the person who originally held the property would acquire rights to inherit that property. That would defeat the intent and purpose of Sub- section (2) of Section 15, which gives a special pattern of succession.
20. Since the object of Section 15 is to ensure that the property left by a Hindu female does not lose the real source from where the deceased female had inherited the property, one has no option but to hold that son or daughter (including the children of any predeceased son or daughter) of such a Hindu female will mean the son or daughter begotten by the Hindu female from the husband, whose property she had inherited, and not the son or daughter whom she had begotten from a husband other than the one, whose property she had inherited. If such property is allowed to be drifted away from the source through which the deceased female has actually inherited the property, the object of Section 15 will be defeated. In other words, if such a property is allowed to be inherited by a son or daughter, whom the deceased female had begotten not through her husband, whose property it was, but from some other husband (whose property it was not), then, Section 15(2)(b) will become meaningless and redundant. Notwithstanding, therefore, the fact that a female Hindu becomes a full-fledged owner of the property inherited by Misc DJ No. 25/22, 26/22 & 34/21 Pages 59/73 her from her husband, the property, on her death, will pass over to, and devolve upon, only those sons and daughters, whom she had begotten from her husband, whose property she had inherited and if there is no such issue or if such issue is not alive, then, the property, instead of devolving upon the sons or daughters whom she might have begotten from another person as husband, will devolve upon the heirs of her deceased husband, whose property she had inherited. Viewed from this angle, it becomes clear that since Jagat Kalita was not born to Mahesari out of her wedlock with Shyamrai Jagat Kalita, on Maheswari's death, did not become entitled to the property and, thus, when Jagat Kalita was not entitled to the property, question of the appellant, Dhanistha, succeeding to the property did not arise at all. The property, therefore, on the death of Maheswari, devolved upon the heirs of Shyamrai and when looked from this angle, the plaintiffs became the owners of the suit land as great grand children of Shyamrai. However, since there is no cross objection against the decrees granted by the learned Courts below, I am not inclined to disturb the findings and or the decree impugned in this appeal."
7.14 In Manibhai Amaidas Patel (supra) and Swaminathan and ors (supra), as relied upon by Ld. Counsel for the applicants, the Hon'ble Apex Court had revoked the probate on the ground that all the legal heirs were not impleaded in the proceedings for grant of letter of administration of a Will. It was held that the facts should have fairly placed before the court granting the probate and it was necessary to cite the persons who would otherwise have an interest in the succession to the estate of the deceased i.e. all the heirs of the deceased. It was held that non disclosure of the other legal heirs is a material concealment. It was further held that the advertisement/notice was insufficient to patch up the gross lacuna i.e. non impleadment of LRs. Furthermore both cases were not of intestate succession and in Swaminathan's case it was a registered Will and in Manibhai's Misc DJ No. 25/22, 26/22 & 34/21 Pages 60/73 case it was not a registered Will. The relevant portion of the observations made in Manibhai (supra) are reproduced hereunder:-
"10. The courts below also overlooked the fact that in their application for revocation the appellants had clearly stated that in other proceedings between the members of the family of Amaidas and the respondent the will had been successfully disputed. In the circumstances, for the respondent to say that the grant was being opposed by 'nobody' was misleading. The grant was obtained by concealing from the court something which was very material to the case. The appellants were entitled to be heard and doubtless the District Judge would have directed to issue of citations to each of Amaidas heirs on intestacy under Section 283 (1) of the Act had the true facts being revealed by the respondent in his application for grant of probate. The advertisement in this case was wholly insufficient to patch up the gross lacuna."
7.15 Similarly was held in Anil Behari Ghosh v. Smt. Latika Bala Dassi and Ors. A.I.R. 1955 S.C. 566. The real lis in the probate proceedings lied between the propounder of the Will i.e. the petitioner and the applicants, who were bound to succeed to the estate of testatrix in the absence of the Will and not between the petitioner and respondent no. 2. Reliance may be placed upon the law laid down in Ramibai and anr Vs.Ramkumari Bai AIR 1990 MP 211.
7.16 In Basanti Devi (supra) the Hon'ble Apex Court has held that in case of non compliance of the statutory provisions under the Indian Succession Act 1925, an application for revocation of probate so granted is maintainable and though probate proceedings are proceeding in rem as a probate when granted not only binds all the parties before the court but also Misc DJ No. 25/22, 26/22 & 34/21 Pages 61/73 binds all other persons in all proceedings arising out of the will or claims under or connected therewith, it was also held that "Being a judgment in rem, a person, who is aggrieved thereby and having had no knowledge about the proceedings and proper citations having not been made, is entitled to file any application for revocation of probate on such grounds as may be available to him".
7.17 Though Ld. Counsels for the non applicants vehemently argued that there has been a delay in filing the present applications seeking revocation of the probate as as per Article 137 of the Schedule to the Limitation Act 1963 the applications ought to have been filed within 3 years but the same have been filed after lapse of more than 5-6 years, however, in my considered opinion there is no delay in moving the present applications.
7.18 It has been discussed above that the applicants were not cited as a party to the probate petition and therefore there was no occasion for them to be aware of the pendency of the same. Though no doubt there was publication of the probate proceedings/petition, however, the non applicants have not been able to establish that the applicants had due notice of the filing or the pendency of the probate petition or of the publication/notice. It is the applicant's case that they received knowledge about the grant of probate for the first time only upon receiving the copy of suit/petition filed by Om Prakash Arora. The non applicants Misc DJ No. 25/22, 26/22 & 34/21 Pages 62/73 could not establish anything on record that the applicants had any prior knowledge of the Will or the probate so granted. The applications at hand have been moved well within three years of the said knowledge. In the case at hand, in view of their non impleadment, they having no notice of the probate proceedings, the right to file the applications accrued from the date of knowledge and not from the date of grant of probate as was otherwise argued by Ld. Counsels for non applicants.
7.19 In Manju Puri (supra) the Hon'ble Apex Court has held that no question of delay arises in case the party was not aware or having knowledge of the probate proceedings. In the said case the application for revocation of probate was filed after more than 29 years of the grant of probate but considering the fact that the party seeking revocation had no knowledge about the probate proceedings, the Hon'ble Apex Court held that the party cannot be held guilty of any delay.
7.20 Things would have been entirely different had the applicants had the knowledge about the probate proceedings and then slept over their right. In the absence of anything on record to prove the knowledge of the applicants, their non impleadment which in the overall facts and circumstances of the case appears to be deliberate, malafide more so when one of the property/estate of which the probate was sought was under the joint occupation & possession of the applicants, no question of the applications being hit by Article 137 arises.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 63/73 7.21 In Yuv Rajnarain (supra) delay of 5 years in filing
the revocation petition was held to be inconsequential while holding as under:-
"However, considering all these aspects of the matter, I am of the view that when the Rules prescribe and the law lays down a particular procedure, the applicant ought to have been made a party in the present proceedings. Moreover, the non-citing of a necessary party can be a ground for revocation of a probate granted under Section 263 of the Indian Succession Act, 1925. If such an eventuality exists, then delay in approaching the court ought not to come in the way of these probate proceedings because after all what the court has to do is to determine as to whether the Will in question was, in fact, the Will left by Smt Avinash Pandit. In this view of the matter, the application deserves to be allowed. The said Shri Rajiv Sharma is impleaded as respondent/objector No. 4. The application stands allowed accordingly."
7.22 When a Court deals with a probate petition, the Court decides a solemn question i.e. whether the Will is a genuine one or not and it is only once the judicial conscience is satisfied that the Court grants probate. For this judicial conscience to be satisfied, the propounder of the Will is duty bound, legally as well as morally, to bring forth all material facts necessary for a just and proper adjudication before the grant is made. Non impleadment of the applicants and non compliance of statutory provisions does amount to concealment and fraud being played upon the court. Once the fraud is played/established, it not only vitiates every proceedings but the question of limitation would arise and the limitation would start running only once the fraud is discovered. Fraud renders any judgment, decree or order Misc DJ No. 25/22, 26/22 & 34/21 Pages 64/73 annuity and non est in the eyes of law. In A.V.Papayya Sastry Vs. State of A.P. (2007 (4) SCC 221), "fraud" was defined in the following words:
"26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss [and cost] of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of finality of litigation cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants."
7.23 While dealing with effect of fraud on limitation as contained in section 17 of the Limitation Act 1963 it has been held in Pallav Sheth (supra) as under:-
"48. Section 17 of the Limitation Act, inter alia, provides that where, in the case of any suit or application for which a period of limitation is prescribed by the Act, the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of the defendant or his agent (Section 17(1) (b))) or where any document necessary to establish the right of the Plaintiff or Applicant has been fraudulently concealed from him (Section 17(1)(d)), the period of limitation shall not begin to run until the Plaintiff or Applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the Plaintiff or the Applicant first had the means of producing the concealed document or compelling its production. These provisions embody fundamental principles of justice and equity, viz, that a party should not be penalised for failing to adopt legal proceedings when the facts or material necessary for him to do so have been wilfully concealed from him and also that a party who has acted fraudulently should not gain the benefit of limitation running in his favour by virtue of such fraud."
7.24 Though Ld. Counsel for the non applicants relied upon the judgment in Ramesh (supra) and Lynette Fernandes Misc DJ No. 25/22, 26/22 & 34/21 Pages 65/73 (supra) to contend that limitation for seeking revocation of probate is 3 years from the grant of probate and not the date of alleged knowledge if any, however, the said case law do not come to the rescue of the non-applicants.
7.25 In Lynette Fernandes's case, the Hon'ble Supreme Court was dealing with a case where an application for revocation of probate was moved after about 36 years of the grant of probate. The applicant in the said case was the daughter of the person who had been granted the probate and had waited for over 3 decades, even after attaining majority to question the grant of probate. In this context, the Hon'ble Apex Court held as under:-
"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 under Article 137 of the Limitation Act in proceedings for revocation of probate. In this matter, as mentioned 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 under Article 137 runs from the date of the appellant attaining 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 appellant 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 filing of application for revocation. No acceptable explanation is offered for such a huge delay of 31 years in approaching the Court for cancellation or revocation of grant of probate."
Misc DJ No. 25/22, 26/22 & 34/21 Pages 66/73 7.26 As is clear from the above, the Hon'ble Apex Court,
in the above judgment has not laid down an absolute proposition of law that an application for revocation of probate would be time barred even where the applicant pleads and proves that the probate was obtained on the basis of active concealment and non impleadment of necessary parties. In the said case, the applicant failed to establish any such factor, a point which was repeatedly emphasized by the Hon'ble Apex Court. It would be safe to hold that had the fraud been pleaded, established the outcome of the proceedings would have been altogether different. Similarly, if reasonable explanation would have come forward for the delay or if lack of absolute knowledge about the probate proceedings would have been established then too the outcome would have been different. Once fraud is alleged and prima facie established, it vitiates everything and no question of limitation as a defence arises once the fraud is challenged. The applicants were indeed prejudiced by their non impleadment and therefore there exists "Just cause" for revocation of the probate as the non impleadment amounted to material concealment, fraud.
7.27 In Ramesh Nivrutti (supra), the Hon'ble Supreme Court was concerned with a case where the applicant seeking revocation of the probate was not an heir of the deceased. This is clear from paragraph 7 of the judgment of the Hon'ble Court where the findings of Ld. Single Judge of the Bombay High Court are discussed. The paragraph reads as under:-
Misc DJ No. 25/22, 26/22 & 34/21 Pages 67/73 "7. A learned Single Judge of the Bombay High Court relied on Rukminidevi v. Narendra Lal Gupta, (1985) 1 SCC 144, to say that if a party does not contest proceedings for grant of probate, it cannot be permitted to question the validity of the will by a collateral attack in different proceedings. The court held that the grant being in rem, binds not only persons who are parties but also others who are not parties to the proceedings, whether they had notice or not. The probate granted by the competent court is conclusive on the validity of the will unless revoked in accordance with law, and no evidence can be admitted to impeach it except in the proceedings for revocation. Thus, since the original probate granted by the California court was not challenged by appropriate proceedings and since the probate was in force, there is no question of revoking an ancillary grant which was merely to give effect to the original probate of the will granted by the California court. The Single Judge also held that since the letters of administration were granted in ancillary proceedings on 25.11.1994 and the petition for its revocation was filed on 21.7.1999, proceedings were time barred. The Single Judge held that such proceedings are covered by Article 137 of the Limitation Act, 1963, which requires the application to be filed within 3 years from the date when the right to apply accrues. Even if the period spent on the notice of motion from 29.3.1997 to 1.4.1998 were excluded from consideration, the petition for revocation was filed beyond the period of three years from 25.11.1994, as the three year period expired on 24.11.1997, and the revocation petition was filed on 21.7.1999. The court, after excluding the period of seven months and two days spent in pursuing the remedy of notice of motion, held it to be hopelessly barred by time. The Single Judge also held that the appellant Ramesh was not an heir of the deceased a fact admitted by him in the rejoinder affidavit. In view of these facts, the application for revocation was rejected. Ramesh appealed unsuccessfully to the Division Bench. The judgment of the Division Bench rejected the sole contention made in the appeal, that the law prescribed no limitation for an application of cancellation of letters of administration.
9. Counsel for the respondent, on the other hand, urged this court to dismiss the appeal. It was contended that the letters of administration in respect of the will in question dated 24.06.1977 were granted by the court after due notice and citation; proceedings for their grant were in rem. Consequently, when granted, the letters of administration operated against the entire world. The cause of action, if any, for seeking their cancellation, therefore, accrued from the date of their grant, Misc DJ No. 25/22, 26/22 & 34/21 Pages 68/73 and not on the date of knowledge of grant, in the absence of any allegation of fraud.
10. As evident, the appellant's application for cancellation of the letters of administration was rejected concurrently. The only question urged is whether there is any limitation prescribed and if not, whether the residuary provision ( Article 137 in the schedule to the Limitation Act, 1963 - hereafter "the Act") applies and for which the starting point of limitation is the date of alleged knowledge of the grant of letters of administration."
7.28 As discussed above, in the said case, the applicant was not an heir of the deceased. While a contention of fraud seems to have been urged at the initial stages, the applicant in the said case could not establish the same before the Ld. Single Judge and the applicant thereafter dropped the said contention and pursued the matter upto the Hon'ble Supreme Court only on the point of limitation.
7.29 The present case is in stark contrast to the cases above. Here the primary ground raised by the applicants seeking revocation is that persons entitled to the property by the operation of Hindu Succession Act have been actively kept in the dark by their non impleadment by the propounder of the Will. It is the applicant's case that the probate has been obtained from the court by concealment of the interest of these persons in the property/estate. Such concealment of persons vitally interested in the determination as to whether a probate should be granted or not amounts to fraud. While the applicants have pleaded and shown that the probate was obtained behind their backs, the non applicants have not been able to point to any fact by which they Misc DJ No. 25/22, 26/22 & 34/21 Pages 69/73 could claim that the applicants had knowledge of filing of the probate proceedings or of the grant of probate. As per Article 137 of the Limitation Act the date of limitation is 3 years from "When the right to apply accrues" which right accrued not when the probate was granted but when the applicants gained knowledge of the grant of probate and the fraud played upon them, the concealments made before the court and the applications at hand have been filed within the prescribed time since gaining of the knowledge by the applicants. For similar reason Som Parkash (supra) and Pawan Kumar Sharma (supra) do not come to the rescue of the non applicants. Moreover both these case laws based upon completely distinct facts altogether. Neither any fraud, concealment was pleaded nor the same could be established. As far as Snehansu Sen Gupta (supra) is concerned, the facts of the said case were also different. In the said case the applicant merely claimed that he was close to the testator who had assured him that he shall get equal share in the estate. In the case at hand the applicants were necessary and proper parties, as discussed above in detail and their omission in the probate proceedings is unjustified and amounts to material concealment. Furthermore in the said case it was held in para 17 as under:-
"17. Clearly, the omission to issue citations to persons who should have been apprised of the probate proceedings would normally result in revocation but this is not an absolute right irrespective of the other considerations arising from the proved facts of a case."
Misc DJ No. 25/22, 26/22 & 34/21 Pages 70/73 7.30 In the given facts and circumstances of the case, the
discussion as above, it is a fit case to exercise the discretion vested with the court, by virtue of Section 263 of the Indian Succession Act 1925, to revoke the grant of probate. As regards S.A. Modi (supra) is concerned, one of the major reason why the Hon'ble Court did not agree with the applicant who sought revocation was that the Court did not believe that the applicant did not have any knowledge of the Will/probate and rather it was a case where the applicant had due knowledge but despite that he did not take any steps to find out the status of the Will or whether any probate in respect of the same has been obtained or not. As far as the discretionary power of the court is concerned, once there is a just cause, justifiable grounds for revocation of the probate and there is no other impediment in exercising the discretionary power, the same ought to be exercised in the interest of justice as well as to satisfy the court's conscience. Moreover the entire estate of the testatrix has not been administered and once revoked the natural consequences as per the law shall follow.
7.31 As far as the other grounds raised by the applicants are concerned, none of those grounds are available to the applicants for seeking revocation of the probate so granted, though they may be a ground to challenge the probate proceedings, the genuineness & authenticity of the Will sought to be probated. Same was also fairly conceded by Ld. Counsels for the parties during the course of arguments.
Misc DJ No. 25/22, 26/22 & 34/21 Pages 71/73 7.32 Therefore in view of the above discussion, the
applications moved by the applicants i.e. Misc DJ No. 25/22 and 26/22 stand allowed. The probate granted vide order dated 25.11.2014 stands revoked. As the probate stands revoked, the probate proceedings, PC No. 5/14 is revived. The applicants stands impleaded as party in the probate petition and they are at liberty to file their reply/written statement within 30 days from today with advance copy to the opposite side who may file the rejoinder if any. The petitioner is directed to file the amended memo of parties within three weeks from today.Findings in Misc DJ no. 34/21
8. As far as applicant Soumni Ravikumar is concerned, she has miserably failed to explain her locus to file the application to reopen the probate proceedings. She has miserably failed to explain as to how merely being the daughter of one Sumathi Amma, a beneficiary under the Will, entitles her to seek revocation of the probate so granted. She was neither a necessary nor a proper party to the probate proceedings, more so when her mother was alive when the probate was granted as she expired only on 07.01.2019. Furthermore the grounds taken by the applicant, who otherwise has no locus, are not the grounds available for revocation of a probate so granted but merely available to challenge the probate proceedings, genuineness and Misc DJ No. 25/22, 26/22 & 34/21 Pages 72/73 authenticity of the Will sought to be probated. Therefore the application stands dismissed.
Announced in the Open Court on 30th May 2023 (Gaurav Rao) Additional District Judge-3 New Delhi District Patiala House Courts, New Delhi Misc DJ No. 25/22, 26/22 & 34/21 Pages 73/73