Delhi District Court
Inder Singh Saroha Son Of Late Shri Ram ... vs State on 6 March, 2007
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IN THE COURT OF SHRI RAVINDER DUDEJA
ADDL. DISTRICT JUDGE: DELHI.
MPC No. 3/2006
in
PC No.145/96
Inder Singh Saroha son of late Shri Ram Swaroop,
R/o H 4-5/90, Facility Center,
Pitampura, Delhi-34
............ Petitioner.
Versus
State.
............ Respondent.
APPLICATION FOR REVOCATION OF PROBATE
GRANTED VIDE DATED 23.09.1998
APPLICANTS:-
i) Smt. Ram Kali,
ii) Sh. Bhawani Shankar
iii) Sh. Shiv Kumar.
JUDGMENT
1. This is a petition for revocation of probate granted to petitioner vide judgment dated 23.09.1998 in respect of Will dated 17.04.1995 (Exbt. P-1) of late Smt. Bholi Sharma.
2. Before adverting to the instant application, let me state the brief facts giving rise to the filing of the present application. Sh. Inder : 2: Singh Saroha had filed a petition under Section 276 of the Indian Succession Act for the grant of probate stating that Smt. Bholi Sharma during her lifetime executed a registered Will dated 17.04.1995 and that he is the sole legatee under the said Will. He specifically stated in the petition that deceased has died issue-less and that one house bearing No. 121, Gali No. 3, Than Singh Nagar, Anand Parbat, New Delhi has been bequeathed to the petitioner.
3. After issuance of the citation, petition was allowed and probate was granted.
4. In the application for the grant of revocation, it has been stated that the probate has been obtained fraudulently by making false suggestion and by concealing the material facts from the court. The applicants were not impleaded in the probate petition. It is stated that the property in question belonged to Sh. Net Ram and not to Smt. Bholi Sharma. Sh. Net Ram had not executed any Will in favour of Smt. Bholi Sharma and therefore, Smt. Bholi Sharma was not competent to execute any Will whatsoever in favour of Sh. Inder Singh Saroha. It is further stated that the applicants are the legal heirs of Sh. Net Ram and are therefore entitled to succeed the property in question after his death. The applicant Smt. Ram Kali claims herself to be the widow of Sh. Net Ram while applicants No. 2 & 3 named Sh. Bhawani Shankar and Sh. Shiv Kumar claim themselves to be the sons of Sh. Net Ram : 3: and Smt. Ram Kali. It has also been stated that Smt. Bholi Sharma had adopted the applicant Sh. Bhawani Shankar in the presence of villagers and Biradari persons including Surender Sharma, Om Prakash Bhardwaj and other persons. It has been prayed that probate granted vide judgment dated 23.09.1998 be revoked.
5. The revocation petition has been contested by the non- applicant Sh. Inder Singh Saroha by way of filing a written reply. It is denied that applicants are necessary and proper parties to the probate petition. It has been stated that deceased has left behind no relative and therefore, no names have been given by the petitioner in his petition. It has been denied that Sh. Net Ram has left behind the applicants as his legal heirs. The factum of adoption of Sh. Bhawani Shankar by Smt. Bholi Sharma has also been disputed.
6. In their rejoinder, the applicants have re-affirmed the averments stated by them in their revocation application.
7. On the basis of pleadings of the parties, following issues were framed vide order dated 15.04.2002 passed by my learned predecessor"-
(i) Whether respondent Inder Singh Saroha had obtained : 4: probate vide order dated 23.09.98 by withholding material facts as stated in para-4a to 4e of the petition U/s 263 of the Indian Succession Act?
(ii) Relief.
8. In their evidence, applicants examined four witnesses namely Smt. Ram Kali (AW-1), Sh. Shiv Kumar (AW-2), Sh.
Ramphal Yadav (AW-3) and Sh. Sada Ram (AW-4). The evidence was led with a view to show that the applicants are the legal heirs of Sh. Net Ram, husband of the deceased and Sh. Bhawani Shankar was adopted by Smt. Bholi Sharma during her lifetime.
9. During the course of evidence, non-applicant was proceeded exparte. The counsel of the applicant has filed written submissions in the matter. I have gone through the written submissions filed by the learned counsel. My issue-wise findings are as under:- 10. ISSUE NO. 1
Revocation or annulment, in respect of grant of probate or letters of administration, is permissible under Section 263 of the Act for just cause and explanation appended to. Section 263 of the Act defines : 5: just cause. Section 263 says"
263. Revocation or annulment of just cause - The grant of probate or letters of administration, may be revoked or annulled for just cause.
Explanation-- Just cause shall be deemed to exist where--
(a) the proceedings to obtain the grant were defective in substance; or
(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or ( c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or
(d) the grant has become useless and inoperative through circumstances; or
(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.
Illustrations
(i) The Court by which the grant was made had no jurisdiction : 6:
(ii)The grant was made without citing parties who ought tohave been cited.
(Iii)...............
(iv)...............
(v)...............
(vi)..............
(vii).............
(viii)............
11. Now the question for consideration is whether the proceedings in Probate Case No. 145/96 were defective or whether the present applicants were entitled to the issuance of citation of the said probate case?
12. The learned counsel of applicants has made two fold submission. Her first argument is regarding the competence of Smt. Bholi Sharma to execute the Will with respect to house No. 121-A, Gali No. 3, Than Singh Nagar, Anand Parbat, New Delhi. It is argued that a person can bequeath only the property which he owns. It is submitted that Sh. Net Ram was the owner of the said house and that he had not made any Will of the said property in favour of Smt. Bholi Sharma and therefore, Smt. Bholi Sharma had no right to execute the Will of the aforesaid house.
13. I have considered the arguments raised by the learned counsel of the applicants. It is a very settled proposition of law that : 7: the testamentary court does not decide about the title of the testator. It simply decides the testamentary capacity of the testator and the genuineness and validity of the Will. I am supported in taking this view by the orders passed by the Division Bench of our own High Court in the case of Har Narain (through L.Rs) vs. Budh Ram (deceased) through L.Rs, 1991 (3) Delhi Lawyers 144. Obtaining probate of a Will means nothing more than that a Will was executed by the testator. Whether he had the power to make a Will and whether the disposition under the Will were valid or not are the questions beyond the probate proceedings. Hence in an application for probate, it is not the province of the court to go into the question of title with reference to the properties of which the Will purports to dispose.
14. The second leg of the argument of learned counsel of applicants is that Sh. Net Ram had married twice in his lifetime firstly with Smt. Bholi Sharma and thereafter with applicant No. 1 Smt. Ram Kali. Applicant Ram Kali was issued Identity Card which shows her husband's name as Sh. Net Ram. She has been issued ration card in which, her husband's name is mentioned as Sh. Net Ram and the name of the father of the other two applicants is also mentioned as Sh. Net Ram. Smt. Ram Kali has been issued a Lal Dora Certificate by the office of SDM, Punjabi Bagh, where the name of her husband is stated as Sh. Net Ram. She has also obtained an electricity : 8: connection from DESU on 28.11.1991 where again the name of her husband is mentioned as Net Ram. It has also been submitted that the name of applicant Sh. Bhawani Shankar has been recorded in her ration card by Smt. Bholi Devi (Bholi Sharma) and the name of Bhawani Shankar is also there in the said ration card showing the name of their father as Net Ram. The I-Card issued by the Directorate of Employment in the name of Sh. Shiv Kumar shows the name of Sh. Net Ram as his father. Even in the Election I Card of applicant Bhawani Shankar, his father's name is mentioned as Sh. Net Ram. It is argued that these documents prove that all the three applicants are the legal heirs of Sh. Net Ram and Smt. Bholi Sharma and therefore, they have a right to have special citation of the probate petition. It is also argued that the witnesses have proved the marriage of applicant Smt. Ram Kali with Sh. Net Ram and have also proved that the other two applicants are the sons of Sh. Net Ram. They have also proved that Sh. Bhawani Shankar was taken in adoption by deceased Smt. Bholi Sharma during her lifetime. It has thus been argued that the probate has been fraudulently obtained by concealment of material facts.
15. The question for consideration is whether the applicants were entitled to the issuance of citation in the application for grant of probate on the basis of Will dated 17.04.1995, set up by petitioner Inder Singh Saroha.
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16. It is well settled that any person having interest in the estate left behind by the deceased, is entitled to oppose the grant of probate and is therefore entitled to get compulsory citation. Section 15 of the Hindu Succession Act deals with the general rules of succession in the case of female Hindus. As per this section, the property of a female Hindu dying intestate, shall devolve firstly upon her sons, daughters and the husband and if there are no sons or daughters and husband, then the property of female Hindu dying intestate is to devolve upon the heirs of the husband. Admittedly, the husband of the deceased Smt. Bholi Sharma had predeceased her. Admittedly, she has not left behind any natural born son or daughter therefore, there is no legal heir of the deceased as prescribed in First category of Section 15. Now, we have to see whether there is any surviving legal heir of the second category as prescribed in Section 15. The heirs of the husband of Smt. Bholi Sharma will include his wife and children. Applicant Smt. Ram Kali is claiming herself to be the second wife while the other two applicants are claiming themselves to be the children of Net Ram, born from his second wife i.e. Smt. Ram Kali. In reply to the petition, non-applicant Sh. Inder Singh Saroha has disputed the fact that the applicants are the wife and sons of the deceased Sh. Net Ram. The onus to prove that the applicants are the legal heirs of the husband of the testatrix was naturally upon the applicants as only thereafter it can be held as to whether they were : 10 : entitled for special citation in the probate petition. In order to prove this, applicants examined four witnesses. In her affidavit, Smt. Ram Kali has stated that late Smt. Bholi Sharma was a barren lady. So she persuaded her husband Sh. Net Ram for second marriage so that they may get issues from the second marriage, who may succeed all the properties left behind by Sh. Net Ram and Smt. Bholi Sharma. She has further stated in her affidavit that Sh. Net Ram married her and that out of their wedlock, two sons named Sh. Bhawani Shankar and Sh. Shiv Kumar were born. She has further stated that Sh. Net Ram died on 12.07.1984 and that Smt. Bholi Sharma had adopted the elder son of Sh. Net Ram namely Sh. Bhawani Shankar in the presence of villagers and Biradari persons including Sh. Surender Sharma, Sh. Om Prakash Bhardwaj and other elderly persons. She has also stated that Sh. Net Ram had not executed any Will in favour of her first wife Smt. Bholi Sharma. During her cross examination, she stated that she is an illiterate lady and that affidavit Exbt. AX was not read over by her. She could not tell the name of the advocate who prepared the affidavit Exbt. AX, which was tendered in evidence. In view of the fact of disowning the affidavit exbt. AX, my learned predecessor directed the examination of applicant in court. Her affidavit exbt. AX was taken off the record. The applicants did not file any appeal or revision against the said order. The effect of the order dated 25.11.2005 is that whatever is mentioned in the affidavit, shall not be read as evidence of the : 11 : applicants. In her statement given in court, AW-1 Smt. Ram Kali just stated that she was married to late Sh. Net Ram in the year 1975 and that before her marriage, she used to reside in District Amethi and that Smt. Bholi was the first wife of Sh. Net Ram and she had come to see her twice for the purpose of her marriage with her husband Sh. Net Ram. She has not given the date and place of her marriage with Sh. Net Ram. She has not deposed that the other two applicants were her children, born out of her wedlock with Sh. Net Ram. She has not deposed that her marriage was performed in accordance with Hindu rites and ceremonies. She has not produced any proof of her marriage with Sh. Net Ram. Applicant Smt. Ram Kali is the second wife of Sh. Net Ram, which he performed during the lifetime of his first wife Smt. Bholi Sharma. Any marriage solemnized after the commencement of Hindu Marriage Act, 1955, shall be null and void if either party has a spouse, living at the time of marriage. That being so, the marriage of applicant Smt. Ram Kali, if any, with Sh. Net Ram was a void marriage and therefore, applicant Smt. Ram Kali cannot be regarded as the legal heir of Sh. Net Ram and is not entitled for special citation of probate petition.
17. AW-2 Sh. Shiv Kumar in his evidence has only stated that Smt. Bholi Devi was his step mother and that he had performed the last rites of his father. Mark A to Mark D are the documents showing the name of his father. He himself claims to be the Class-I legal heir : 12 : of Sh. Net Ram and Smt. Bholi Devi. The documents which AW-2 has placed on record are the photocopies of the School Leaving Certificate of Class-II, Electoral Roll and ration card in order to show that the name of his father is Sh. Net Ram but he has not proved these documents as per law. Therefore, these documents cannot be taken into consideration as proof to show that Sh. Shiv Kumar is the son of late Sh. Net Ram.
18. AW-3 Sh. Ram Phal Yadav has deposed that he knew Sh. Net Ram for the last 60 years and that Sh. Net Ram had married twice. The name of his first wife of Smt. Bholi Devi while that of his second wife is Smt. Ram Kali. He further stated that Sh. Net Ram had two sons namely Sh. Bhawani Shankar and Sh. Shiv Kumar from the wedlock with Smt. Ram Kali. He has further deposed that Sh. Bhawani Shankar was adopted by Smt. Bholi Devi.
19. AW-4 Sh. Sada Ram has deposed that Smt. Ram Kali is the widow of Sh. Net Ram and that she had married with Sh. Net Ram with the consent of his first wife Smt. Bholi Sharma. He claims that he had attended the marriage of Smt. Ram Kali with Sh. Net Ram and that Sh. Net Ram had two sons named Sh. Bhawani Shankar and Sh. Shiv Kumar. He has further deposed that Smt. Bholi Devi had taken Sh. Bhawani Shankar in adoption. Both these witnesses have mainly been examined to prove the factum of marriage of Sh. Net : 13 : Ram with Smt. Ram Kali and also to prove that the other two applicants are the sons of Sh. Net Ram from his second wife Smt. Ram Kali and also to prove that Sh. Bhawani Shankar was taken in adoption by Smt. Bholi Sharma. Neither of these two witnesses have produced any proof of marriage of Smt. Ram Kali with Sh. Net Ram. They have not even given the date and place of their marriage. Their testimonies are vague as regards to the marriage and adoption of Sh. Bhawani Shankar by Smt. Bholi Sharma. Sh. Surender Sharma and Sh. Om Prakash Bhardwaj in whose presence Sh. Bhawani Shankar was taken in adoption by Smt. Bholi Sharma, as stated in the revocation application, have not been produced. Without proper proof of the marriage and adoption, I am unable to accept the testimonies of AW-3 and AW-4.
20. Thus, the applicants have not been able to prove that they are the legal heirs of deceased husband of testatrix Smt. Bholi Sharma. That being so, they are not entitled for special citation in the probate petition. In view of the afore-going discussion, I come to the conclusion that the applicants are not entitled for special citation and probate has not been obtained by withholding the material facts. Issue No. 1 is decided against the applicants.
21. ISSUE NO. 2 : 14 :
In view of my findings on issue No. 1, the revocation application is dismissed. File be consigned to Record Room.
( RAVINDER DUDEJA ) ADDL. DISTRICT JUDGE: DELHI.
ANNOUNCED IN THE OPEN COURT ON 06.03.2007.