Delhi District Court
Smt. Urmila Devi vs State on 30 November, 2007
: 1:
IN THE COURT OF SHRI RAVINDER DUDEJA
ADDL. DISTRICT JUDGE: DELHI.
MPC No. 41/2006
in
PC No. 469/2001
Date of institution : 07.10.2005
Date on which Judgment was reserved for : 05.11.2007
Smt. Urmila Devi ............ Petitioner.
Versus
State.
............ Respondent.
Application for revocation of probate granted
vide Judgment dated 19.07.2002
Applicant : Jai Prakash Tyagi
JUDGMENT
1. This is a petition for grant of revocation of letter of administration granted in favour of Smt. Urmila Devi vide judgment dated 19.07.2002 passed by Sh. G.P. Mittal, Additional District Judge.
2. Before adverting to the present application, let me state the brief facts giving rise to the present application. Smt. Urmila Devi filed a petition under Section 276 of the Indian Succession Act stating that her : 2: mother Smt. Ram Wati, who expired on 21.02.1996, during her lifetime, executed a Will dated 15.01.1996 in her favour. She disclosed that besides her, the deceased has left behind a son and a daughter. After issuance of citation and notices to the legal heirs, petition was allowed and letter of administration was granted in respect of the Will Exbt. PW- 1/1 with a copy therefore annexed thereto with regard to the property detailed in Schedule of Property. One of the properties mentioned in the schedule is a house measuring 100 sq. yards built on a part of Khasra No. 13/11, situated at Nathupura area Burari.
3. In the revocation application, it has been stated that Smt. Urmila Devi had obtained the letter of administration by playing fraud and misrepresenting the facts and also by concealing the true facts. It has been stated that applicant Sh. Jai Prakash Tyagi is the owner and in actual physical possession of the aforesaid property. It has been stated that Smt. Ram Wati during her lifetime, had sold the said plot to her husband Sh. Har Prasad on 07.04.1995 for a sale consideration of Rs. 20,000/- vide General Power of Attorney, Agreement to Sell, Affidavit and Receipt. Sh. Har Prasad bequeathed the said property in favour of his grandson Sh. Manoj Kumar by executing a registered Will dated 27.11.2000 in his favour. Sh. Manoj Kumar sold the property in question to the applicant for a consideration of Rs. 1,25,000/- on 05.03.2001. Sh. Manoj Kumar executed a registered Power of Attorney, registered Will and also executed Agreement to Sell, Affidavit : 3: and Receipt. He handed over the actual physical possession of the house to the applicant and issued a possession letter on 05.03.2001. The applicant is in actual physical possession of the property since 05.03.2001. It has been further stated that Smt. Urmila Devi filed a civil suit for recovery of possession against the applicant in the court of Senior Civil Judge, alleging herself as owner of the property in question and the applicant as licensee/care taker of the property. The said civil suit is still pending. It is stated that the applicant came to know of the grant of probate when the same was disclosed by Smt. Urmila Devi in the month of October, 2004 by way of amendment of her plaint. It is stated that the applicant was not aware about the probate case filed by the petitioner as neither the applicant was made a party to the probate case nor the petitioner disclosed the factum of the pendency of the case. It has been further stated that the petitioner had concealed the material fact that Smt. Ram Wati had already sold the property in question to her husband for a sale consideration on 07.04.1995 and as such, she was left with no right, title or interest in any manner whatsoever to execute the Will in her favour. It has been further stated that the petitioner intentionally and deliberately did not implead the applicant as party to the probate case and succeeded to get letter of administration by playing fraud and misrepresentation.
4. Notice of the revocation application was given to the petitioner/non-applicant Smt. Urmila Devi who filed reply to the : 4: revocation application. She has stated in her reply that the present application is time barred as the applicant became aware of the filing of the probate petition after getting the notice from the civil court. It has been stated that the period of limitation for filing the application for revocation starts from the date of judgment/letter of administration and therefore, the limitation for filing the application has come to an end on 19.07.2004. The present application is, therefore, not maintainable. It has been stated that the applicant has concocted the entire story and there is no ground for revocation.
5. The applicant filed rejoinder stating that Limitation Act is not applicable for filing the application under Section 263 of the Indian Succession Act. Moreover, the application is within the period of limitation as the applicant came to know about the probate case only in the month of October, 2004. The applicant reiterated the averments made in his application.
6. Vide orders dated 30.05.2006, following issues were framed by the court:-
i) Whether the Letter of Administration granted in favour of the non-applicant Smt. Urmila Devi vide judgment dated 19.07.2002 is liable to be revoked in view of the grounds mentioned in the revocation application? OPA. : 5:
ii) Relief.
7. The applicant in his evidence, tendered his affidavit Exbt.A-1 wherein, he has stated about the averments made in the revocation application. He has proved the documents of purchase of property from Manoj Kumar as Exbt. AW-1/1 to Exbt. AW-1/6.
AW-2 is Sh. Shankar Prasad Gupta. He is the witness of sale documents Exbt. AW-1/1 to AW-1/3 and AW-1/5 to AW-1/6. In his affidavit Exbt. A-2, he has stated that Sh. Manoj Kumar had sold the plot bearing No. 102 situated in Village Burari to the applicant Sh Jai Prakash Tyagi on 05.03.2001 in his presence for a sale consideration of Rs. 1,25,000/-. According to him, Sh. Jai Prakash Tyagi is in actual continuous physical possession of the said property.
AW-3 is Sh. Mukesh Yadav, LDC from the office of Sub Registrar, Pitam Pura. He produced the record of registration of General Power of Attorney Exbt. AW-1/1.
AW-4 is Sh. S.S. Pawar, Head Clerk from the office of Sub Registrar, Kashmere Gate. He produced the record regarding registration of the Will dated 16.08.1999 of Sh. Har Prasad in favour of Manoj Kumar.
: 6:
AW-5 is Sh. Sant Kumar Gupta. He has proved the documents of sale of property by Smt. Ram Wati to her husband Sh. Har Prasad as Exbt. AW-5/1 to Exbt. AW-5/2. He is the attesting witness of these documents. He is also the attesting witness of the registered Will dated 16.08.1999 of Sh. Har Prasad in favour of Manoj Kumar, which has been proved as Exbt. AW-4/1.
AW-6 is Head Constable Satish Kumar. He was summoned for production of record but the record could not be produced as the same had been destroyed.
8. In her evidence, non-applicant Smt. Urmila Devi examined RW-1 Sh. Manoj Kumar. He has deposed that the applicant was inducted as a tenant in the house on a rent of Rs.500/- but on the pretext of getting the rent agreement signed, the applicant obtained his signatures on General Power of Attorney and Will fraudulently. He stated that he did not execute any General Power of Attorney and Will in favour of the applicant and that after having come to know of the fraud, he executed the documents for cancellation of General Power of Attorney and Will and also got them registered. The documents of cancellation of General Power of Attorney and Will have been proved as Exbt. RW-1/A and RW-1/B respectively.
In her affidavit Exbt. R-1, non-applicant Smt. Urmila Devi has : 7: stated that her mother had purchased the plot in question as per the advice of Sh Jai Prakash. The Will dated 15.01.1996 executed by her mother is within the knowledge of the applicant. The applicant used to maintain the built up plot, constructed by her mother. He used to pay the rent for the same to her mother and after her death, he started making payment of rent to her. However, he stopped paying rent w.e.f. 01.01.1998. She has stated that all the document produced by the applicant are false and fabricated documents.
9. I have gone through the written submissions filed by the parties. My issue-wise finding is as under :
ISSUE NO. 1
The main submission of the learned Counsel of non applicant is that the revocation application is barred by limitation as the same has been filed after expiry of three years of the grant of letter of administration in her favour. In support of her contentions, the non applicant has relied on the case of Pamela Manmohan Singh vs. State & Ors., 83 (2000) DLT 469. The argument on behalf of the applicant is that the Limitation Act is not applicable in probate proceedings. The applicant has relied on the case of Aswini Kumar Chakravarty and another vs. Sukhaharan Chakravarty and others, AIR 1931 Calcutta 717.: 8:
10. The provisions of Article 137 of the Limitation Act provides the limitation of three years for filing any other application for which no period of limitation is provided elsewhere. In Ramanand Thakur vs. Premanand Thakur, AIR 1982 Patna 87. It has been held that right to apply for a probate accrues from day to day so long as Will remains unprobated. Similarly, in Shobha Kshirsagar vs. Janaki Kshirsagar and another, AIR 1987 MP 145, it has been held that Article 137 cannot apply to an application for probate. These authorities have been considered by the Delhi High Court in the case of Pamela Manmohan Singh vs. State & Ors., 83 (2000) DLT 469, and after referring The Kerala State Electricity Board, Trivandrum, vs. T.P. Kunhaliumma, AIR 1987 SC 289, the Delhi High Court disagreed with the view taken in Ramanand Thakur vs. Premanand Thakur (supra) and S Shobha Kshirsagar vs. Janaki Kshirsagar and another (supra) and held that the petition for the grant of probate is covered under Article 137 of the Limitation Act and there would be limitation of three years for filing an application for grant of probate from the date when the right to apply accrues. It has been pointed out that the period of three years would surely commence at least from the date on which a legatee under the Will could be justifiably ascribed with the knowledge that the Will on which his claim is founded is likely to be disputed by the other persons especially the natural heirs of the testatrix. Pamela Manmohan Singh : 9: vs. State & Ors. (supra) has been over ruled by a Division Bench of the Delhi High Court in S.S. Lal (Shri) v. Shri Vishnu Mitter Govil, 2004 V AD (DELHI) 509, where it has been held that right to apply for probate or letter of administration is a recurring right and it would be inappropriate to fall back upon Article 137 of the Limitation Act to the proceedings for the grant of probate or letter of administration. Thus, in view of the latest case law, I am of firm opinion that the period of limitation of three years prescribed under Article 137 of the Limitation Act is not applicable to the proceedings for the grant/ revocation of probate/ letter of administration.
11. Coming to the merits of the revocation application, it has been submitted that from the evidence, it has been proved that executor of the Will of Smt. Ramwati was not competent to execute the Will in question on 15.1.96, while her right, title or interest, if any, pertaining to the said plot was extinguished on 7.4.1995 when she sold the property to her husband. She was not the owner of the property on the date of her death and, therefore, the Will is void and inoperative. It has also been submitted that the applicant has proved that he has purchased the plot in question from Manoj Kumar against sale consideration vide documents Ex.AW1/1 to Ex.AW1/6. Applicant, therefore, has interest in the estate left behind by deceased Smt. Urmila Devi, but he was not impleaded as party to the probate on petition. He had a right to participate and oppose the grant of letter of administration by : 10 : challenging the authenticity and genuineness of the Will of Smt. Ramwati.
12. Section 263 of the Indian Succession Act provides the grounds upon which the probate once granted can be revoked. The grant of probate or letter of administration can be revoked or annuled for just cause. As per illustration 2 of Section 263 the grant can be revoked, if it was made without citing party, who ought to have been cited. Relying on the case of Sima Rani Mohanti vs. Puspa Renu Pal, AIR 1978 Calcutta 140 it has been contended that any interest, however, slight and even the bare possibility of an interest is sufficient to entitle a person to file application for revocation. Accepting the legal proposition, it is necessary to point out that the person must show to have interest in the property left by the deceased. If a person coming with a claim that the property did not belong to the deceased at the time of death, but it did belongs to him than the person was not making a claim to the property of the deceased. He, therefore, cannot be said to be claiming the property through the deceased. Admittedly, the applicant is not in any way related to the deceased. He does not have any claim in the property left by the deceased. Therefore, it is necessary to understand as to what is the claim of the present applicant. He has claimed to have purchased the property in dispute from Shri Manoj Kumar, grandson of the deceased. Therefore, he is not claiming the property left by the deceased. He only has a rival claim : 11 : to the title of the property as he is claiming that the property did not belong to the deceased at the time of her death, but had been transferred in his name during her life time. This court in its testamentary jurisdiction does not decide the title to the property. While granting probate what the court considers is that the Will produced before it was the genuine last Will of the testator. Whatever property is claimed by the executor to be the property left by the deceased is normally included in the Schedule and by inclusion of the property in the Schedule, the court does not decide the title of that property. Therefore, any person having a rival claim to the title of the property is always at liberty to approach appropriate court for decision of his title.
13. The court is conscious of the fact that a judgment in probate proceedings is a judgment in rem and so long as that remains in force, it is conclusive as to the due execution and validity of the Will unless it is duly revoked as per law. It binds not only the parties but also all the persons in all proceedings arising out of the Will or the claim under or connected therewith. However, by stating that the judgment in probate proceedings is a judgment in rem, it does not mean that the court exercising the testamentary jurisdiction can decide as to the title of the property and if at all it is to be decided, that also would be the judgment in a rem. Hence, the applicant, who is claiming independent title to the property, which is the subject matter of the Will of the deceased has no caveatable interest in the property left by the deceased and, therefore, : 12 : had no right to be impleaded in probate proceedings and that being so, the applicant cannot ask for revocation of the probate on the ground that he has not been impleaded. Since in testamentary proceedings the only concern of the court is the due execution and genuineness of the Will, the plea that the applicant was not competent to bequeath the property, not being its owner, is of no help. It has come on record that Smt. Urmila Devi on the basis of letter of administration obtained from this court has filed a civil suit for recovery of possession before the Civil Judge, which is being contested by present applicant. In my view, it would serve the purpose of the applicant, if it is observed that the grant of letter of administration in favour of Smt. Urmila Devi will not come in the way of the present applicant to establish his title to the property as against the deceased in the civil proceedings, if it is otherwise permissible in law. So far as, issue no.1 is concerned, I do not find any just ground for revocation of the letter of administration granted in favour of Smt. Urmila Devi. Issue No.1 is decided accordingly. RELIEF
14. In view of my findings on issue no.1, revocation petition is dismissed. File be consigned to Record Room.
Announced in open (RAVINDER DUDEJA)
Court on 30.11.2007 ADDL. DISTRICT JUDGE:
DELHI.