1 fa980 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.980 OF 2010 Chandrakant Khandu Apradh & Anr ...Appellants vs. Sadashiv Yashwant Shirole ...Respondent Mr.P.D.Dalvi for the appellants Ms Prabha Badadare i/b Mr.G.K.Gole for the respondent CORAM : A.S.OKA,J. DATE : JULY 29, 2011 P.C.: 1 The submissions of the learned counsel for the parties were heard on the earlier date. The parties were put to notice that the appeal will be taken up for final disposal at admission stage. 2 The challenge in this appeal is to the order passed by the trial Court on application for revocation of Letters of Administration granted in favour of the respondent. The respondent applied for grant of Letters of Administration in respect of Will dated 23rd December 1997 executed by deceased Shevantabai. The application made by the respondent was allowed by the Trial Court on 6th December 2003. 3 The Application for revocation of the Letters of Administration was made by the Appellants on various grounds. In the application for revocation of Letters of Administration, it was contended that the Letters of Administration had been fraudulently 2 fa980 obtained by the respondent. It was pointed out that the deceased Babu, husband of Shevantabai had three brothers by the name Dattu, Dadu and Khandu. The first appellant is the son of the said Khandu. It is contended that the relationship between the deceased Shevantabai and first Appellant was not disclosed in the application for Letters of Administration. By the impugned Judgment and order, application for revocation of Letters of Administration has been dismissed by the learned Trial Judge. 4 The learned counsel for the appellants submitted that admittedly at least the first appellant will be the legal representative of the deceased Shevantabai under the provisions of Hindu Succession Act,1956. It is submitted that it was the duty of the Court to serve special citation of the Application on at least the first appellant. He placed reliance on the decision of this Court in case of B.B.Paymaster and others Vs.Mrs.Baurawa Sangappa Kodap and others (AIR 2005 Bombay 48). He submitted that admittedly the special citation was not served. The learned counsel for the respondent could not dispute that the special citation was not served to any of the appellants. However, the learned counsel for the respondent relied upon the decision of Division Bench of this Court in case of S.A.Modi vs. Mrs.T.A.Rana and others [2004 (3) Mh.L.J 821]. The learned counsel submitted that it is not that in every case the failure to serve citation is a ground for revocation of Letters of Administration. In special circumstances, a 3 fa980 departure can be made from the ordinary rule. The learned counsel submitted that no interference is called for with the impugned order. 5 I have carefully considered the submissions. Perusal of the Judgment and Order dated 6th December 2003 by which the Letters of Administration was granted shows that a public notice of the application was issued and a citation was affixed. Admittedly, no special citation was served to the appellant. At this stage, it will be necessary to make a reference to the decision of this Court in case of B.B. Paymaster (Supra). In paragraph 8 of the said decision, this Court held thus : 8...The section vests a discretion in the Judge in the matter of issuing citations. The said discretion is required to be exercised with utmost care considering the fact that the finding of the Probate Court as regards execution of the Will operates in rem. In a case where probate of a Will is asked for, a special citation ought to be served upon those persons whose interests are directly affected by the Will. The practice of issuing only a general citation and ordering publication thereof in a newspaper or ordering affixing the citation in conspicuous part of Court house may tend to encourse fraud. Though the section does not make it obligatory to serve a special citation, it is desirable to serve special citation on the persons 4 fa980 who would have been entitled to inherit the property of the deceased as per the law of intestate succession and who have been excluded from succession by the Will. Whenever, it is disclosed in the Probate Petition itself that there are persons claiming to have any interest, the estate of the deceased, the Court will have to exercise discretion under Section 283 by directing service of citation on such persons. (underline added) 6 In case of S.A.Mody (supra) the Division Bench considered the law on the aspect. In paragraph 9, the Division Bench held thus : 9 The ordinary rule is that the omission to issue citations to the persons who ought to have been apprised of the probate proceedings may provide for a ground by itself for revocation of the grant of probate. The existence of special circumstances, however, may justify departure from the ordinary rule. As held by the Supreme Court, revocation of the grant on the ground of the omission to issue citations to persons should have been apprised for the probate proceedings is not the absolute right. The special circumstances obtaining in a given case may justify refusal to revoke the grant of probate even where there is omission to 5 fa980 issue citation to the necessary party. Whether the special circumstances justifying denial of revocation of grant exist or not would depend on the facts of each case... (Underline supplied) 7 Thus, what is held by the Division Bench is that ordinary rule is that omission to issue citation to the persons who ought to have been apprised of the probate proceedings may by itself provide a ground for grant of probate. Only the existence of special circumstances may be a justification to make a departure from the normal rule. 8 In the present case, at least the first appellant was entitled to inherit the property of the deceased in accordance with the provisions of the Hindu Succession Act,1956 in absence of any Will of the deceased. Admittedly, the citation has not been served to the first appellant. Thus, this itself is a ground to set aside the Letters of Administration. 9 It is pertinent to note that the order granting Letters of Administration was passed on 6th December 2003. The application for revocation of Letters of Administration was filed on 30th October 2004. So this is not a case where it can be said that there was a gross delay in approaching the Court. It is not the case made out before the Trial Court that with the passage of time attesting witnesses to the alleged Will are no more available. Therefore, a case for existence of special circumstances is not 6 fa980 at all made out. Apart from the fact that the respondent could not make out a case of the existence of special circumstances warranting a departure to be made from normal Rule, the perusal of the impugned order shows that there is no finding recorded that the special circumstances were in existence requiring the Court from making a departure from the ordinary rule. In paragraph 6 of the impugned order even the learned Trial Judge noted that there was no service of citation to the Appellants. The learned Trial Judge held that there was no interest shown by the appellants. Suffice it to say that at least the first appellant had an interest in the property of the deceased but for the alleged Will. There were some observations made pertaining to the dispute regarding title. The said observations were totally unwarranted for in as much as the issue regarding title of the deceased to the properties set out in the Will cannot be decided in the proceedings for grant of probate or Letters of Administration. Hence, the impugned Judgment and Order will have to be set aside and the application for revocation of Letters of Administration will have to be allowed. 10 Hence, I pass the following order : i) Impugned Judgment and Order dated 13th March 2008 is quashed and set aside. ii)Misc.Civil Application no.66 of 2005 is allowed and Judgment and Order dated 6th December 2003 passed on Misc.Civil Application no.70 of 2003 is set aside. Misc.Civil Application no.70 of 7 fa980 2003 is restored to the file of the Trial Court. iii)The Trial Court (Court of Civil Judge (Senior Division, Ichalkaranji) shall fix the Misc.Civil Application no.70 of 2003 on board on its 19th September 2011. iv)Parties are directed to appear before the learned Trial Judge on that date. Now, in view of this order, it will not be necessary for the Trial Court to issue citation to the parties. v) Misc.Civil Application shall be decided on its own merits in accordance with law. vi)Hearing of the Misc.Civil Application is expedited. vii)Appeal is allowed on above terms. JUDGE