Delhi High Court
Rakesh Kumar Juneja & Ors vs Surinder Pal Kaur on 9 March, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 9th March, 2018.
+ CS(OS) 102/2018
RAKESH KUMAR JUNEJA & ORS ..... Plaintiffs
Through: Mr. R. M. Bagai, Adv.
Versus
SURINDER PAL KAUR ..... Defendant
Through: None
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.3288/2018 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
CS(OS) 102/2018 & IA No.3287/2018(of the plaintiffs u/O XXXIX R 1 &
2 CPC)
3. The three plaintiffs, namely (i) Rakesh Kumar Juneja, (ii) Dinesh
Kumar Juneja and (iii) Phool Juneja have filed this suit against the sole
defendant for the following reliefs:-
"(a) pass a decree ordering cancellation of probate order dated
10.09.2015 and the formal order dated 27.05.2017 based
thereupon;
(b) pass such other and further order(s) as this Hon'ble Court
may deed fit and proper under the facts and circumstances of the
present case."
CS(OS) 102/2018 Page 1 of 9
4. The suit is listed subject to the office objection as to court fees and
jurisdiction.
5. The plaintiffs had earlier filed Test Case No. 73/2017 which had come
up before this Court on 18th December, 2017 and which was dismissed vide
detailed order dated 18th December, 2017. Rather than repeating the facts, it
is deemed appropriate to reproduce the said order dated 18 th December, 2017
herein:-
"3. This Petition under Section 263 of the Indian Succession
Act, 1925 seeks revocation of the probate ordered to be granted
of the document dated 7th June, 2003 as validly executed last
Will of Baba Chakravarthy Darvesh.
4. The case of the petitioners is (i) that DLF Housing and
Construction Limited, being the developers of the colony of
Greater Kailash, Part-II, New Delhi, vide Sale Deed dated 27th
July, 1964 sold plot of land bearing no.E-255, Greater Kailash,
Part-II, therein to one Gurdial Kaur; (ii) that the said Gurdial
Kaur, vide Sale Deed dated 21st March, 1966, sold the said plot
of land to Thakar Singh and Lashkar Singh; (iii) the said Thakar
Singh and Lashkar Singh, vide Sale Deed dated 14th December,
1970, sold the said plot of land to one Satinder Singh; (iv) that
the said Satinder Singh vide Sale Deed dated 2nd May, 1986 sold
the said plot of land to the petitioners no.1&2 and to the
husband of the petitioner no.3 who has died leaving the
petitioner no.3 only as his natural heir; (v) that the petitioners
since then are the owners in possession of the said plot; (vi) that
on one Baba Chakravarthy Darvesh claiming that Gurdial Kaur
aforesaid had executed a letter dated 23rd June, 1966 donating
the aforesaid plot of land E-255, Greater Kailash, Part-II, New
Delhi to him, the petitioners instituted a suit and in which a
decree dated 6th October, 1998 was passed declaring the said
CS(OS) 102/2018 Page 2 of 9
letter to be void and non est and cancelling the same; (vii) that
on learning, that Baba Chakravarthy Darvesh had executed a
Sale Deed dated 27th November, 1996 with respect to the
property in favour of one Hans Raj, the petitioner instituted yet
another suit under Section 31 of the Specific Relief Act, 1963 for
cancellation of the said Sale Deed and which is pending; (viii)
that the respondent no.2 herein namely Surinder Pal Kaur has
vide judgment dated 10th September, 2015 of this Court in
FAO(OS) No.275/2013 obtained an order of grant of probate of
the document dated 7th June, 2003 as validly executed last Will
of Baba Chakravarthy Darvesh; and, (ix) that on the basis of the
aforesaid probate, the respondent no.2 Surinder Pal Kaur is
attempting to trespass over the property aforesaid of the
petitioners and has already got electricity supply to the property
disconnected.
5. The aforesaid Hans Raj has not been impleaded as a
party to this petition, presumably because he was not a party to
the Probate Case either.
6. It being a settled position in law that a Probate Court
does not decide any questions as to title to immovable property
which may be subject matter of the document of which probate
is sought and being thus of the view that the petition does not
disclose any cause for revocation of the probate inasmuch as the
petitioners are neither claiming under any other / subsequent
Will of Baba Chakravarthy Darvesh nor as natural heirs of
Baba Chakravarthy Darvesh of whose Will probate has been
granted, I have enquired from the counsel for the petitioners the
need for seeking revocation.
7. The counsel for the petitioners has drawn attention to the
orders dated 13th October, 2017 and 8th November, 2017 in
application earlier filed by the petitioners in FAO(OS)
No.275/2013 vide order dated 10th September, 2015 wherein
CS(OS) 102/2018 Page 3 of 9
probate of which revocation is sought was granted. The said
orders disclose that the petitioners first applied for revocation
in the said disposed of FAO(OS) and which application of the
petitioners was dismissed with the observation that the remedy
should be agitated in the first instance before the concerned
forum i.e. before the learned Single Judge.
8. The aforesaid order of the Division Bench cannot be
construed as holding the petition for revocation to be
maintainable. A petition for revocation of probate would
certainly lie in the Court of first instance, even if any appeals
were preferred against the order of the Court of first instance.
The petitioners thus were wrong in approaching the Appellate
Court. The Appellate Court accordingly held the application of
the petitioners to be not maintainable before it, without
considering whether the petitioners at all have the locus / cause
to maintain a petition for revocation of probate. The order of
Appellate Court, merely observing that relief of revocation of
probate should be applied before Court of first instance will not
bind the Court of first instance if no case for entertaining a
revocation petition is otherwise made out.
9. Thus there is no merit in the aforesaid contention of the
counsel for the petitioners.
10. I may in this regard also notice that the Single Judge, vide
judgment dated 14th December, 2009 in Test. Cas. No.48/2005
had dismissed the petition filed by the respondent no.2 for
probate of the document dated 7th June, 2003 as validly
executed last Will of Baba Chakravarthy Darvesh, reasoning
that Baba Chakravarthy Darvesh himself did not have any title
to the plot on the basis of the donation letter dated 23 rd June,
1966 and the document of which probate was sought was also
suspicious. However the Division Bench vide judgment dated
10th September, 2015 in FAO(OS) No.275/2013 preferred
CS(OS) 102/2018 Page 4 of 9
thereagainst set aside the said judgment, reasoning that a
Probate Court cannot examine and render finding on question
of title and that whether the donation of the property made in
1996 (supposedly incorrect for 1966) was valid or not was not
an issue that could be gone into by the Probate Court which at
best could only conclude whether the Will was genuine or not.
11. The counsel for the petitioners then contends that the
petitioners have a locus / cause to apply for revocation because
on the basis of the probate granted by this Court, the petitioners
are suffering and the electricity supply with respect to the plot
has already been disconnected.
12. The same would again not entitle the petitioners to
maintain this petition for revocation of probate, as, I repeat, the
petitioners are not claiming as heirs, natural or testamentary, of
Baba Chakravarthy Darvesh probate of whose Will has been
granted and are otherwise also not claiming any title in the
property aforesaid from Baba Chakravarthy Darvesh. Rather,
the petitioners claim to have a decree in their favour in a suit
filed against Baba Chakravarthy Darvesh and the title which the
petitioners are claiming to the plot is independent of the
deceased, of whose Will probate has been granted and even if
the respondent no.2 Surinder Pal Kaur is causing any challenge
to the title of the petitioners to the said property, the remedy of
the petitioners is not by way of this revocation petition but
otherwise.
13. The counsel for the petitioners has then relied on para 10
of Elizabeth Antony Vs. Michel Charles John Chown Lengera
AIR 1990 SC 1576.
14. The said judgment, instead of helping the petitioners also
holds that by granting a probate, the Court is not deciding the
disputes as to title.
CS(OS) 102/2018 Page 5 of 9
15. The counsel for the petitioners has then relied upon the
judgment of the Division Bench of the Madras High Court in
Chrome Leather Company Ltd. Vs. Q. Dawson AIR 2013
Madras 5.
16. Undoubtedly, in the said judgment, a third party which
had acquired the property at an auction sale was held to have a
caveatable interest. However, the Division Bench of the Madras
High Court in the said judgment did not notice Krishna Kumar
Birla Vs. Rajendra Singh Lodha (2008) 4 SCC 300 holding
that a caveatable interest is an interest in the deceased
testator's estate which may be affected by grant of probate. It
was further held that a person who would have succeeded to the
testator's estate in case of intestate succession would ordinarily
have a caveatable interest. It was further held that any other
person must ordinarily show a special interest in the testator's
estate--such a special interest may be that of a creditor of the
deceased--however, the interest claimed as caveatable interest
must not be one which could have the effect of destroying the
testator's estate--any person claiming any interest adverse to
the testator or his estate cannot maintain any application before
the Probate Court and his remedy would be elsewhere. It was
yet further held that a judgment rendered in probate
proceedings though a judgment in rem would not be
determinative of questions of title and questions of title,
existence of property are beyond the jurisdiction of the Probate
Court and remedy of person in respect of such types of questions
is to file a separate suit.
17. The interest which the petitioners herein are claiming in
property no. E-255, Greater Kailash, Part-II, New Delhi is
destructive of the interest of the testator Baba Chakravarthy
Darvesh and adverse to the estate of Baba Chakravarthy
Darvesh and such interest is neither caveatable neither entitles
the petitioners to seek revocation of probate already granted.
CS(OS) 102/2018 Page 6 of 9
The petitioners are not disputing the valid execution of the Will
of Baba Chakravarthy Darvesh of which probate has been
granted. What the petitioners are doing is disputing the rights
of the deceased Baba Chakravarthy Darvesh to make a Will
with respect to the property aforesaid.
18. No case for entertaining this petition under Section 263 of
the Indian Succession Act is made out.
19. Dismissed.
20. The counsel for the petitioners at this stage states that
liberty be granted to institute a suit.
21. There is no need for liberty inasmuch as what has been
held above is that Revocation Petition is not maintainable. The
petitioners can always take correct remedy in law."
6. The plaintiffs, instead of filing a suit restraining the defendant or any
other person who may be disturbing or challenging the title claimed by the
plaintiffs to the property have to either file a suit for declaration of their title
and injunction, if in possession or if have lost possession, for recovery of
possession on the basis of the title claimed by the plaintiffs. The plaintiffs,
instead of doing so, have filed this suit for cancellation of the order dated
10th September, 2015 holding Surinder Pal Kaur entitled to grant of probate
claimed by her and the order dated 27th May, 2017, perhaps issuing the
probate, when as reasoned in detail in the order dated 18 th December, 2017
reproduced above, the plaintiffs are not concerned with the probate granted
by this Court inasmuch as the grant of probate only proves the document of
which probate is granted as the validly executed last Will of the deceased
and does not adjudicate the title of the deceased to the properties bequeathed.
CS(OS) 102/2018 Page 7 of 9
7. Moreover, once a remedy under Section 263 of the Indian Succession
Act 1925 is available for revocation of a probate, a civil suit for the relief of
cancellation of the order granting probate and which order has attained
finality, would not lie. The order/judgment granting probate is an
order/judgment in rem and is not subject to any kind of collateral attack;
while it remains in force, it is conclusive not only on persons parties to the
judgment but upon all persons and on all Courts. The proper course is to
apply for revocation under the provisions of the Act itself. No Civil Suit lies
therefor. I have held so in Durga Devi Vs. Prem Lata Rai 2013 SCC
OnLine Del 4638. Reference may also be made to Narbheram Jivram
Purohit Vs. Jevallabh Harjivan AIR 1933 Bom 469, Panna Lal Vs.
Hansraj Gupta AIR 1940 Cal 236, Kailash Chandra Vs. Nanda Kumar
AIR 1944 Cal 385 (DB), Rukn-ul-Mulk S. Abdul Wajid Vs. Gajambal
Ramalingam AIR 1950 Mys 57 (DB) and Thresia Vs. Lonan Mathew AIR
1956 TC 186 (FB).
8. The suit is as misconceived as the earlier Test Case No. 73/2017. It
appears that an attempt is being made to avoid payment of requisite court
fees which would be payable on the proper remedy if any to which the
plaintiffs are entitled to. This suit has been filed valuing the same for the
purposes of jurisdiction at over Rs. 2 crores but with payment of court fees
of Rs. 500/- only. The counsel for the plaintiffs has come prepared only to
argue on the aspect of the plaintiffs being entitled to sue under Clause (iii) of
Article 17 of Schedule II of the Court Fees Act, 1870 and has brought with
him copy of Suhrid Singh vs. Randhir Singh AIR 2010 SC 2807 in this
regard. However, the question of court fees would arise only if the suit were
CS(OS) 102/2018 Page 8 of 9
to be maintainable. The suit is not found to be maintainable and the plaint is
rejected.
No costs.
Dasti.
RAJIV SAHAI ENDLAW, J.
MARCH 09, 2018 SRwt CS(OS) 102/2018 Page 9 of 9