Allahabad High Court
State Of U.P. Thru' District Collector ... vs Dr. Ashok Tahiliani & Others on 12 July, 2017
Bench: Arun Tandon, Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 10 Case :- SPECIAL APPEAL No. - 104 of 2016 Appellant :- State Of U.P. Thru' District Collector (Stamps) Allahabad Respondent :- Dr. Ashok Tahiliani & Others Counsel for Appellant :- M.C. Chaturvedi,S.C. Counsel for Respondent :- Anurag Khanna,B.B. Paul,G.N. Verma,Rahul Agarwal,Rahul Sripat Hon'ble Arun Tandon,J.
Hon'ble Ritu Raj Awasthi,J.
Heard learned Standing Counsel on behalf of the State of U.P. and Sri Rahul Sripat, Advocate on behalf of respondent no. 1. Nobody is present on behalf of other respondents.
The facts on record of the present appeal relevant for deciding the matter are as under:
Testamentary Case No. 10 of 1981 in the matter of goods of Late Shri H.C.R. Gomes; Testamentary Case No. 9 of 1982 in the matter of goods of Late G.R.G.R. Gomes connected with Testamentary Suit Nos. 11 of 1982, 12 of 1982 and 13 of 1982 in the matters for goods of Ms. Sheila Dorothy Penn, for Letters of Administration of the wills of her sister Late Mrs. G.M.R. Gomes Ms. Sheila Dorothy Penn, who also sought Letters of Administration of the estate of her surviving brother Late Herold Charles Rutland George Gomes, were instituted before the Hon'ble High Court.
The aforesaid testamentary cases were decided under order dated 13.09.1983 and letter of administration was issued in favour of the petitioner Ms. Sheila Dorothy Penn. The order of the learned Single Judge was subjected to challenge by way of Special Appeal No. 15 of 1983, which is stated to have been disposed of vide order dated 10.11.1986. Ms. Penn is stated to have expired. Subsequent to her death Sri Brij Bhushan Paul, an advocate of the Allahabad High Court, applied for and was granted letters of administration of the estate of late Ms. Penn on the basis of a registered will.
Surprisingly, after 14 of years of the said order, an application, being Application No. 79013 of 2007, in Testamentary Suit No. 11 of 1982 was filed by one Ashok Tehiliyani under Section 177 and Section 325 of the Indian Succession Act, 1925 read with Chapter XXX Rule 16 of the Allahabad High Court Rules for a direction to the holder of letter of administration Brij Bhushan Paul to execute the necessary deed of sale in favour of the applicant after taking balance consideration of Rs. 9,000/- in pursuance of the agreement to sale dated 08.03.1972, which disclosed the total value of the property Rs. 1 lac, within a reasonable period of time in respect of house no. 22, Hastings Road (Nyay Marg), Allahabad, being part of Nazul Plot No. 2A-10 Civil Station, Allahabad, to enable the applicant to approach the State Government to grant free hold rights to the applicant as per his application filed on 30.01.1999. This application has been allowed vide order dated 29.03.2007.
The State of U.P. being aggrieved by the last paragraph of the order dated 29.033.2007 of the learned Single Judge has filed this intra court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules. It has been contended that entire proceedings initiated under the Application No. 79013 of 2007 are outside the scope of Testamentary Suit No. 11 of 1982 and therefore without jurisdiction. The application had the effect of enlarging the scope of testamentary suit and traveled beyond the relief prayed for in the testamentary suit, which had already been decided in 1983. It is contended that the application is virtually in the nature of a suit for specific performance of the contract and even otherwise bad, as State was not a party to the said proceedings.
The last part of the order dated 29.03.2007 reads as follows:
"The application is accordingly allowed. Sri Brij Bhushan Paul the holder of Letters of Administration of Ms. Sheila Dorothy Penn with her will attached, shall execute the sale deed of the property detailed in the agreement dated 8.3.1972 and more particularly described in the map appended to the judgment in Special Appeal No. 15 of 1983 decided on 10.11.1986 upon receiving Rs. 9,000/-. Since the Court has already adjudicated the rights of Late Dr. Nand Lal Tahiliani and had held that Rs. 91,000/- out of the total sale consideration of Rs. 1,00,000/- was paid by him and that he is in possession thereof since then, the sale deed will be executed and registered on the sale consideration agreed between the parties under the agreement to sell dated 8.3.1972 and the stamp duty to be paid on such agreed consideration and accepted by the Court in the judgment dated 13.9.1983, and the judgment in Special Appeal dated 10.11.1986. All the legal formalities with regard to execution of sale deed will be performed by the applicant, and thereafter he may pursue his rights for acquisition of the free hold rights with the State government, for which he had applied on 30.1.1999."
It is contended that while considering the scope of the testamentary suit in the matter of grant of probate in respect of will said to have been executed with reference to the provisions of Section 177 and 325 of the Indian Succession Act, 1925 read with Chapter XXX Rule 16 of the Rules of the Allahabad High Court Rules, the learned Single Judge has traveled beyond the scope of the said proceedings while granting the application. It is submitted that once the probate/letter of administration has been granted, no further directions in the matter of execution of a sale deed in terms of agreement to sale and that too on the price fixed by the agreement to sale and stamp duty being realized accordingly could not have been made.
Learned Standing Court submits that the order passed by the learned Single Judge virtually amounts to a decree of specific performance of a contract and further restrict the right of the State Government to determine the market value of the property subject matter of deed for the purposes of levy of stamp duty and thereby jeopardy the State revenue. It is also stated that the State was not party to the said proceedings and therefore no such direction as contained in the last paragraph of the order of the learned Single Judge could have been issued.
We specifically required the counsel for the respondent no. 1 to explain to the Court as to under which authority of law the learned Single Judge could have proceeded to issue direction, as contained in the last paragraph, while trying a testamentary suit. No reply could be given. It is more or less conceded that the High Court while exercising testamentary jurisdiction could not have issued direction in the matter of execution of the sale deed or the court fee to be paid on the deed so executed specifically more so when the State was not party to the said proceedings.
We have heard learned counsel for the parties and have gone through the records of the present appeal.
We may only record that the proceedings initiated under a testamentary suit are confined to the genuineness of the will and nothing beyond it.
In several judgments it has been held by the Supreme Court that the jurisdiction of the Testamentary Court is only to determine as to whether the testator has executed an instrument of his own free will. The jurisdiction of the probate Court does not deal with the property of the deceased. Since only the will and not the property is the subject matter of the proceedings before the probate Court, the jurisdiction with respect to enabling the administration of the estate would either be by upholding the will and granting probate or by declining to do so and thereby facilitating the administration of the estate.
In a proceeding for the grant of probate or for the grant of Letters of Administration with a will annexed, the Court exercising testamentary jurisdiction is not concerned with title to property. In determining whether probate should be granted, the Court determines only upon the genuineness and due execution of the will. Determinations on issues of title are alien to probate proceedings. In Ishwardeo Narain Singh vs. Kamta Devi, reported in AIR 1954 SC 280, the Supreme Court formulated the principle of law in the following terms "The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court."
This principle was reiterated in Chiranjilal Shrilal Goenka (deceased through LRs) vs. Jasjit Singh, reported in (1993) 2 SCC 507, in the following observations :
"The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways.
The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself."
In Delhi Development Authority vs. Mrs.Vijaya C. Gurshaney, reported in (2003) 7 SCC 3015, the Supreme Court again emphasized the following principle:
"A Testamentary Court is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will. It is settled law that the grant of a Probate or Letters of Administration does not confer title to property. They merely enable administration of the estate of the deceased."
In Krishna Kumar Birla v. Rajendra Singh Lodha, reported in (2008) 4 SCC 300, the Supreme Court once again reiterated that :
"The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court."
The last paragraph of the judgment of the learned Single Judge is referable to the power vested under the Writ Court under Article 226 of the Constitution of India. Therefore, against this part of the order of the learned Single Judge an appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules could be maintainable, as has been laid down in the aforesaid cases.
We are, therefore, of the opinion that the last paragraph of the judgment, quoted above, is outside the scope of the testamentary jurisdiction of the learned Single Judge and therefore the direction for execution of the sale deed and registration on the sale consideration agreed between the parties, transfer of property and the stamp duty to be charged therein are held to be bad for want of jurisdiction.
The records reflect that the testamentary case was decided vide order dated 10.11.1986 and with the same the jurisdiction of the testamentary court came to an end. No further application of the nature, which had been filed on which aforesaid direction has been issued, was maintainable.
The last part of the order dated 29.03.2007 is therefore set aside. State and the other authorities are at liberty to proceed in accordance with law.
This appeal is allowed.
Order Date :- 12.7.2017 Pkb/