Jharkhand High Court
Laxmi Mishra vs Lt. Col. Vikas Bajpai on 1 September, 2022
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 6782 of 2013
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1.Laxmi Mishra, wife of Dr. Raghunath Prasad Mishra and daughter of Late Dwarikadhish Tiwary, resient of 127/1, Jharkhandi, P.O., P.S. & District Faizabad (Uttar Pradesh).
2.Uma Tivari, wife of Chitranjan Tivari and daughter of Late Dwarikadhish Tiwary, resient of 61, Kanakpura Road Baswangundi, P.O & P.S. Baswangundi, District Bengaluru (Karnataka). .... ... Petitioners Versus
1.Lt. Col. Vikas Bajpai, son of late Basant Bajpai, having its office at 21, M.T.C. Shopping Arcade, Jail Road, Shillong and resident of Mawkhar East Road, P.O. Mawhar, P.S. Sadar, District Shillong (Meghalaya).
2.Mahendra Mohan Tiwary, son of Late Awadesh Prasad Tiwary, resident of Nari udyog, 35, D.S.I.D., Industrial Complex, Lowrence Road, New Delhi.
3.Smt. Malti Mishra, Wife of Mr. Surya Dutta Mishra, and daughter of Late Awadhesh Prasad Tiwary, resident of 37-C, Indranpuri, Indore (M.P.).
4.Sharad Tiwary, son of Late R.M. Tiwary, resident of Maharani Mansion, 36, Circuit House Area, P.O. & P.S. Mango, Town Jamshedpur, District East Singhbhum.
5.Smt. Poonam, daughter of R.M. Rajendra Mohan Tiwary, resident of Mango, P.O. & P.S. Mango, Town Jamshedpur, District East Singhbhum.
6.Smt. Suman Tiwary, wife of Late Manmohan Lal Tiwary, resident of Maharani Mansion, 36, Circuit House Area, P.O. & P.S. Mango, Town Jamshedpur, District East Singhbhum.
7.Nitya Prakash Tiwary, son of Late Manohar Lal Tiwary, resident of B-5, Maharani Mansion, 36, Circuit House Area, P.O. & P.S. Mango, Town Jamshedpur, District East Singhbhum.
8.Smt. Rama Mishra daughter of Late Manohar Lal Tiwary, resident of B-5, Maharani Mansion, 36, Circuit House Area, P.O. & P.S. Mango, Town Jamshedpur, District East Singhbhum.
9.Ruchir Tiwary, son of Nitya Prakash Tiwary, resident of B-5, Maharani Mansion, 36, Circuit House Area, P.O. & P.S. Mango, Town Jamshedpur, District East Singhbhum.
10.Rachna Dubey, daughter of Nitya Prakash Tiwary, resident of B-5, Maharani Mansion, 36, Circuit House Area, P.O. & P.S. Mango, Town Jamshedpur, District East Singhbhum.
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11.Surendra Mohan Tiwary, son of Late Mithilesh Prasad Tiwary, resident of Maharani Mansion, 36, Circuit House Area, P.O. & P.S. Mango, Town Jamshedpur, District East Singhbhum.
12.Smt.Rekha Pathak, wife of Shri Arun Pathak and daughter of Late Basant Bajpayee, resident of Pathak Ward, Bhatta Mohallah, P.O., P.S. & District Katni (M.P.).
13.Vivek Bajpayee, son of Late Basant Bajpayee resident of Bajpayee Niwas, Cantonment, P.O. & P.S. Cantonment, District Jabalpur (M.P.).
14.Vinod Dixit, son of Late Jawati Dixit, resident of Dixit Niwas, Jatpura, P.O. & P.S. Jatpura, District- Chandrapur.
15.Sunil Bajpayee, son of Late Sant Bajapayee, resident of Tiwary Bechar Building, Top Floor, P.O. & P.S. Bistupur, Town Jamshedpur, District East Singhbhum.
16.Smt.Sunita Bajpayee, daughter of Late Sant Bajpayee, resident of Tiwary Bechar Building, Top Floor, P.O. & P.S. Bistupur, Town Jamshedpur, District East Singhbhum.
17.M/s. Shan Bros., a partnership firm having its office at Sadar Bazar, Chaibasa West Singhbhum, represented through Sumitra Shah, son of Raj Kumar Shah, resident of European Quarter, Chaibasa, P.O. & P.S. Chaibasa, District West Singhbhum.
18.Manoj Kumar Singh, son of Saheb Dayal Singh, resident of New Colony, Nimbih, P.O. & P.S.Chaibasa, District West Singhbum.
19.Ranjay Kumar Singh, son of Saheb Dayal Singh, resident of New Colony, Nimbih, P.O. & P.S. Chaibasa, District West Singhbhum.
20.Niraj Singh, son of Saheb Dayal Singh, resident of D- 006, Kanchangiri Ashiyana enclave,P.O. & P.S. M.G.M., Town Jamshedpur, Dsitrict East Singhbum.
21.Ajay Kumar Agarwal, son of Om Prakash Agarwal, resident of Ram Tekri Road, Naya Bazar, P.O. & P.S. Jugsalai, Town Jamshedpur, District East Singhbhum.
22.Sunil Kumar Jaiswal, son of Late Thakur Prasad Jaiswal, resident of Gaushala Nala Rolad, Naya Bazar, P.O. & P.S. Jugsalai, Town Jamshedpur, District Eat Singhbhum.
23.Abhishek Jaiswal, son of Rajesh Jaiswal, resident of Gaushala Nala Road, Naya Bazar, P.O. & P.S. Jugsalai, Town Jamshedpur, District Eat Singhbhum.
... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD 3
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For the Petitioner : Mr. Vipul Poddar, Advocate For the Respondents : Mr. P.A.S. Pati, Adv
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Order No. 10/Dated 1st September, 2022 The instant writ petition has been filed under Article 227 of the Constitution of India for quashing order dated 26.08.2013 passed by learned Judicial Commissioner-IV, Ranchi in Probate Case No. 49 of 2012 wherein the petition dated 10.06.2013 filed by the Executor/Respondent No. 1 has been allowed with direction to implead all the named persons in the said petition as Opposite Parties in the proceedings of Probate Case No. 49 of 2012.
2. The brief facts of the case, as per the pleadings made in the writ petition, read as under:
The respondent no. 1- Lt. Col. Vikas Bajpai filed Probate Case No. 49 of 2012 in the Court of Judicial Commissioner, Ranchi for grant of probate in respect of Will and testament dated 12.09.2011 executed by Smt. Roop Kumari Tiwary.
On being noticed, the petitioners appeared and filed their show cause on 27.11.2012 disputing the contentions raised by the executor-respondent no. 1 herein and stated that the deceased-Smt. Roop Kumari Tiwary has never executed any Will or signed the same 4 in presence of witnesses and thus disputed the genuinity of the Will itself.
On 10.06.2013, the executor-respondent no. 1 has filed an application to implead all the heirs, both from her husband's side and father's side of the testator. Further prayer has been made to implead the purchaser from existing Opposite Parties, who have purchased the portion of the property, which is the subject matter of the Will for which the application for probate has been filed.
Rejoinder to the said petition was filed by Opp. Party No. 1 and 2 [the petitioners herein] on 25.07.2013 stating therein that the petition filed by the applicant is not maintainable, as the husband of the deceased Roop Kumari Tiwary has died leaving behind two Class-I heirs (the petitioners herein) and during the lifetime of the present Opp. Parties (the petitioners herein) no other person would be otherwise entitled for intestate succession. Another ground has been taken that the suit property admittedly is the husband's property of Roop Kumari Tiwary and as such in case of intestate death of the testator the heirs coming down from the father's side will not succeed to the same. It has further been stated that the property situated at Jamshedpur 5 Circuit House was the ancestral property of Madhur Tiwary, Laxmi Mishra and Uma Tiwary and other co- sharers wherein Roop Kumari Tiwary, Madhur Tiwary, Laxmi Tiwary and Uma Tiwary were impleaded as defendants and a decree for partition was passed by the court of Subordinate Judge, Jamshedpur in P.S. Case No. 54 of 1976. Similarly, it has been mentioned that the property situated at Kandarbera, Chandil, Ranchi and Jamshedpur are all coming out from the joint family, being part of the ancestral property i.e. it is the property of late Dwarikadish Tiwary, husband of Roop Kumari Tiwary and as such heirs from the father's side of the testator will not succeed in case testator died intestate.
In the backdrop of aforesaid fact, submission was made before the Probate Court, by taking the plea that they are neither necessary party nor proper party because under Section 283 of the Succession Act only such person are interested party who have interest in the estate of deceased.
The learned trial Court has passed order, by allowing the application vide order dated 26.08.2013 (order impugned), on the ground that Will in question has been allegedly executed by Roop Kumari Tiwary, 6 genuineness of which is in question in Probate Case. The trial Court has found from paragraph 4 of the Will that the members from the father-in-law's side are beneficiaries of the family trust created by the deceased. Further, from paragraph 6 of the Will, it transpired that the applicant is the executor of the Will. The succession rights have been mentioned from paragraph 8 onwards. At paragraph 8 of the Will, it has been mentioned that 50% of the property shall be distributed to O.P. No. 1 and 30% to other members of her father-in-law's family and 20% to the members of her father's family. Similarly, cash has also been distributed and a trust has been created.
The learned trial Court, therefore, has come to the conclusion that interest has been created in both the family i.e., family of father-in-law and father's family and as such found fit to allow the said application. Accordingly, the application filed by the applicant was allowed and the applicant was directed to implead all the named parties as opposite parties in the present suit, against which, the instant application has been filed by the petitioners invoking the jurisdiction of this Court under Article 227 of the Constitution of India. 7
3. Mr. Piyush Poddar, learned counsel for the petitioners has assailed the order passed by the trial Court on the ground that impleadment of party, as has been ordered vide order dated 26.08.2013 (impugned), is not at all warranted in view of provision of Section 283 of Indian Succession Act.
It has further been argued that the parties, who have been directed to be impleaded in the proceedings by allowing the petition is not at all beneficiary to the Will and as such the order impugned suffers from material irregularity, which may be quashed and set aside.
4. On the other hand, the respondents have defended the order passed by the trial Court on the ground that the trial Court (Probate Court) is required to see the Will as it is. It has been submitted that the Will specifically refers in different paragraph creating interest of the family members of both sides i.e., family members of father-in-laws' side and family members of father's side, as would appear from paragraph 4, 6 and 8 of the Will and as such the trial Court, after taking into consideration the aforesaid aspect of the matter, is correct in allowing the impleadment vide impugned order dated 26.08.2013.
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It has further been submitted by referring to the impugned order that even the learned counsel before the learned trial Court has conceded that the purchasers from the present O.P. No. 1 and 2 may be impleaded party in the present case as they have acquired interest in the subject.
The learned counsel in the backdrop of these facts has submitted that the order impugned may not be interfered with in exercise of power conferred to this Court under Article 227 of the Constitution of India.
5. This Court has heard learned counsel for the parties and perused the documents available on record as also the finding recorded by learned trial Court in the impugned order dated 26.08.2013.
6. Admitted fact herein is that a Probate Case being Probate Case No. 49 of 2012 was filed for grant of probate in respect of Will and testament dated 12.09.2011 executed by Smt. Roop Kumari Tiwary. Before the Probate Court the Opp. Parties (petitioners herein) appeared and filed their show cause on 27.11.2012 disputing the contentions raised by the executor-respondent no. 1 herein stating inter alia that the deceased-Smt. Roop Kumari Tiwary has never executed any Will or signed the same in presence of 9 witnesses and thereby disputed the genuineness of the Will.
Before the learned Probate Court, on 10.06.2013, the executor-respondent no. 1 filed
application before the Court below praying therein that respondent no. 2 to 23, herein, are the necessary parties in the proceeding for grant of probate, therefore, they may be impleaded as Opp. Party No. 3 to 26.
A rejoinder to the aforesaid petition was filed on 25.07.2013 in which serious objection has been raised for impleadment of proposed opposite parties stating that they are not the necessary parties and as such are not required to be impleaded as parties in the proceeding.
The learned Judicial Commissioner-IV, Ranchi has allowed the petition filed by executor-Respondent No. 1 vide order dated 26.08.2013 with a direction to implead all the named persons as Opposite Parties in the proceedings of Probate Case No. 49 of 2012, which is the subject matter of challenge in the instant writ petition by invoking the jurisdiction of this Court conferred under Article 227 of the Constitution of India.
7. This Court, before entering into the legality and propriety of the impugned order, deems it fit and proper 10 to go across the definition of 'Will' and 'Probate' as contained under Section 2 (f) and 2(h) of the Indian Succession Act, 1925.
For ready reference, the definition of 'Will' and 'Probate' as contained under Section 2 (f) and 2(h) of the Indian Succession Act, 1925 (hereinafter referred to as Act, 1925) is quoted hereunder as:
2.(f) "probate" means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator;
2.(h) "will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
It is, thus, evident that Will does not involve any transfer nor effect any transfer but, is legal intention of the person with regard to his property to carrying into effect after his death; meaning thereby a Will relegates succession and provides for succession as declared by it (testamentary succession) as per personal law (non- testamentary succession).
Therefore, when a person makes a Will he provides for testamentary succession and does not provide any property.
Therefore, true meaning of the Will is the legal declaration of the intention of the testator and if probate 11 is being filed for its certificate under the seal of a Court of competent jurisdiction for the purpose of grant of letters of administration, the intention is to be seen of the testator as per insertion made in the Will.
Herein, in the facts of the case a petition has been filed being Probate Case No. 49 of 2012, after appearance of the concerned respondents on being called upon by the learned Probate Court, for impleadment of the beneficiary to the Will. The learned Probate Court has allowed the same considering the intention the testator as contained in Will, legal declaration of the testator of the Will wherein, both the family members of the father-in-laws' and father's side are beneficiary of family trust.
Therefore, the Will contains the intention of the testator of the distribution of property to the Opp. Party No. 1 and 2 to the extent of 50 %, as would appear from paragraph 8 of the Will and 30% to other members of her father-in-law's family and 20% to the members of her father's family, as has been referred in the impugned order. Further, it appears from paragraph 4 of the Will which contains that the members from the father-in-law's side are beneficiaries of the family trust 12 created by the deceased. Paragraph 6 of the Will, contains that the applicant is the executor of the Will.
The learned trial Court, after taking into consideration the aforesaid aspect of the matter as has been referred at Paragraph 8 of the Will wherein the interest/benefits to be extended in favour of O.P. No. 1 and 2 to the extent of 50%, 30% to other members of her father-in-law's family and 20% to the members of her father's family. Similarly, cash has also been declared to be distributed and a trust has been created.
A Will being a legal declaration of the intention of the testator, as per definition of Will under Section 2(h) of the Act, 1925 and herein the intention of the testator in the Will has created interest of Opp. Party No. 1 and 2, other members of the father-in-laws family and her father's family. The concerned respondents, who have been sought to be impleaded belongs to the members of her father-in-laws family, her father's family apart from Opp. Party No. 1 and 2.
The learned court below has taken into consideration the aforesaid aspect of the matter and considering the aforesaid fact that concerned respondents-Opp. Parties have been found to be 13 beneficiary of the said Will allowed the prayer for their impleadment.
Further, it appears from the impugned order that even the concession has been granted on behalf of respondent no.1 (applicant before the Probate Court) for impleadment of the purchasers of the landed property as party to the present case.
Therefore, when there is concession on the part of the respondent no. 1 herein, who is the applicant before the learned Probate Court, who has filed probate case being Probate Case No. 46 of 2013 has conceded for impleadment of the purchasers who have purchased the property from O.P. No. 1 and 2, question will arise that why not the other beneficiary who have been said to be legally declared in the Will to be beneficiary i.e., respondents nos. 3 to 23 herein.
8. As such, this Court is of the view that while impleading the concerned respondents by passing the order impugned, this Court after taking into consideration the fact in entirety as per the discussions made hereinabove and considering the meaning of Will which is legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death, if impleadment 14 application is allowed, the same cannot be said to suffer from error.
9. Learned counsel for the petitioner has further raised the issue of applicability of Section 283 of the Act, 1925 but this Court considering the aforesaid provision which provides power to the District Judge to-
(a)examine the petitioner in person, upon oath;
(b)require further evidence of the due execution of the will or the right of the petitioner to the letters of administration, as the case may be;
(c)issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.
It is, thus, evident that even under the provision of Section 283, which provides power to the concerned learned District Judge, who is in sessin of the matter as under Section 283 (1)(c) to issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration; meaning thereby, learned Probate Court can issue citations in order to call upon a person who claims to have interest in the estate.
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Herein, the Will itself contains legal declaration of the testator showing the interest of the concerned respondents, who have been ordered to be impleaded as respondent nos. 3 to 23 to the proceedings.
11. This Court, therefore, is of the view that the reference of the provision of Section 283, as has been made on behalf of petitioners in order to defend his case, is also not found to have any substance.
12. This Court since is sitting under Article 227 of the Constitution of India wherein the order dated 26.08.2013 has been assailed under its revisional jurisdiction, which is having very limited scope of interference.
Reference in this regard be made to the judgment rendered by Hon'ble Apex Court in the case of Mani Nariman Daruwala v. Phiroz N. Bhatena reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the high court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to.
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Hon'ble Apex Court has made it clear that except to this limited extent the High Court has no jurisdiction to interfere with the finding of facts.
The Hon'ble Apex Court has further taken note of this aspect in the judgment rendered in the case of Laxmikant Revchand Bhojwani v. Pratapsingh Mohansingh Pardeshi, reported in (1995) 6 SCC 576 wherein it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice.
It is, thus, evident that the Court exercising power conferred under Article 227 of the Constitution of India has got very limited power and the same can only be exercised if there is any patent error on the face of record.
13. This Court considering the settled position of law regarding scope of the power in exercise of power conferred under Article 227 of Constitution of India, which can only be exercised if the order on the face of it found to suffer from error, has gone across the order passed by the learned Court below and found the 17 impugned order suffers from no error, as per discussions made hereinabove, therefore is not inclined to interfere with the same.
14. Accordingly, the instant petition fails and is dismissed.
15. Interim order of stay granted by this Court vide order dated 12.01.2016 stands vacated.
16. The trial Court is directed to expedite the proceeding without granting unnecessary adjournments to the parties.
(Sujit Narayan Prasad, J.) Alankar/-
N.A.F.R.