Case: MANJU PURI Vs. RAJIV SINGH HANSPAL

from the suit property. Photocopy of the no objection filed by Smt. Beena Mehra has been brought on record along with the rejoinder-affidavit, a perusal of which appears that all the three no objections were notarised by the same Notary, an Advocate, Shri Dilip Kumar Basu. It is not even claimed that Shri D.K. Basu who identified Beena Mehra was engaged as counsel by Beena Mehra by executing any Vakalatnama. 35. The factum of filing of suit for partition by Smt. Beena Kumari Mehra in the year 1984 where there is neither any reference of the Will of Surjan Singh Randhawa nor reference of probate proceedings and further in the written statement filed in the said suit by Smt. Gian Hanspal, elder sister of Smt.Beena Kumari Mehra there is no mention of Will of Surjan Singh Randhawa or probate proceedings to base her right and to the contrary rights were claimed only on the basis of registered deed of gift dated 25.03.1964 executed by Smt. Harnam Kaur Randhawa in favour of Smt. Gian Hanspal, which cast a doubt on the alleged consent given by Smt. Beena Kumari Mehra in the probate proceedings. Had Smt.Beena Kumari Mehra given consent in probate proceedings in the year 1982, it ought to have been reflected in the suit or in the written statement filed by Smt. Gian Hanspal. The conduct of Smt.Beena Kumari Mehra in filing suit in 1984 claiming partition and no reference of probate in the said proceedings clearly indicates that Smt.Beena Kumari Mehra was not even aware of the probate proceedings when the suit was filed. In the written statement filed by Smt. Gian Hanspal, who was the beneficiary of the Will as well as the probate proceedings which there was no mention of probate proceedings which makes us wonder as to why the probate proceedings were not mentioned in the written statement. and if Smt. Beena Kumari Mehra has signed as alleged why she was not confronted with the probate proceedings in the written statement. No mention of probate proceedings clearly indicates that neither Smt. Beena Kumari Mehra was aware of probate proceedings nor she was confronted with such proceedings. In the said proceedings, when a Will is sought to be probated after 20 years of its execution the High Court ought to have more cautiously proceeded with the probate proceedings. The Calcutta High Court in Harimati Debi and another vs. Anath Nath Roy Choudhury, AIR 1939 Cal 535 , in concurring judgment of Latifur Rahman, J. held that where an unregistered Will is sought to be propounded after the lapse of more than 20 years it is required that all manner of doubt and suspicion is removed. 36. We are of the view that in the facts and circumstances of the present case, learned Single Judge erred in not issuing any citation to Smt. Beena Mehra in the probate proceedings and without any verification of genuineness of no objection certificates mechanically granted probate which was unsustainable. If it is accepted that in probate proceedings persons who have been dis-inherited in the Will on mere no objection certificates by them without either being called by probate court to appear and certify their no objections or to file any pleading will lead to unsatisfactory result and may cause prejudice to persons who were not aware of the proceedings and are yet claimed to have submitted no objections. We, thus, conclude that even though learned Single Judge had discretion to issue citation or not but in the facts of the present case a citation ought to have been issued in exercise of discretion conferred under Section 283 of the Succession Act and the probate granted without issuance of such citation in the facts of the present case deserves to be revoked and learned Single Judge and the Division Bench committed error in rejecting the application for revocation filed by the appellant. 37. Learned senior counsel appearing for respondent No.4 who is the purchaser of the property from respondent Nos.1,2 and 3 by conveyance deed dated 28.06.2010 has contended that the rights of respondent No.4 be protected since he is a bona fide purchaser with value. Although, the respondent No.4 was impleaded as one of the parties, we are of the view that at this stage it is not necessary to advert to the submission of the learned counsel for respondent No.4. In view of our conclusion as noted above that revocation application filed by the appellant deserves to be allowed, the order dated 04.06.1982 granting probate in PLA No.90 of 1982 deserves to be set aside and the probate proceedings shall stand revived before the learned Single Judge and it is yet to be considered by the learned Single Judge as to what orders are to be passed in the proceedings in PLA No.90 of 1982 and all the contentions which are sought to be raised by respondent No.4 are to be adverted in the above proceedings. 38. The submission raised by respondent No.4 needs no consideration in these proceedings which were initiated by the appellant only for revocation of probate. Learned counsel for respondent Nos.1, 2 and 3 has further submitted that the appellant had already filed a suit being Title Suit No.59/2013 in the Court of First Civil Judge(Senior Division) at Alipore where a declaration is claimed that the indenture of conveyance dated 28.06.2010 executed and registered in favour of respondent No.4 is void, illegal and invalid. 39. Shri Jayant Bhushan submits that in view of probate proceedings as well as adverse consequences on the appellant with regard to the dismissal of suit for partition filed by the mother for non-prosecution, this Court may not interfere with the proceedings/order passed by the Calcutta High Court. The Calcutta High Court in the impugned judgments has only dealt with the proceedings initiated by the appellant for revocation of probate, we need to consider the said proceedings only insofar as related to application filed by the appellant for revocation of probate dated 04.06.1982.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]17. There is no dispute regarding relationship of the parties. The appellant is a daughter of Smt. Beena Kumari Mehra who was the youngest daughter of SurjanSingh Randhawa, the deceased whose Will was probated by the High Court. Respondent Nos.1,2 and 3 are legal heirs of eldest daughter of deceased Surjan Singh Randhawa, Smt. Gian Hanspal20. But there was no mention in the entire written statement about the probate dated 04.06.1982. The pleadings in the above proceedings clearly indicate that neither there was knowledge of any probate proceedings nor even claim of probate proceedings was taken by Smt. Gian Hanspal in the written statement which was filed in the year 1984. The suit filed by Smt. Beena Kumari Mehra got dismissed in default on26.03.1986 and an application for restoration of the suit was also dismissed for default on 19.08.2006. Smt. Beena Kumari Mehra died on 05.05.2008. When the case was set by the appellant in the application for revocation that she came to know about the probate proceedings only through conveyance deed executed by respondent Nos.1,2 and 3 in favour of respondent No.4dated 28.06.2010 and she got inspection of the records of PLA No.90 of 1982 on 19.05.2011 and came to know about the probate proceedings and alleged no objections by her mother, Smt. Beena Kumari Mehra. Without adverting to these facts, the High Court could not have jumped on the conclusion that there is inordinate delay in filing the revocation application. Neither there is anything brought on record by respondent Nos.1, 2 and 3 to indicate that the appellant or her mother had knowledge of probate proceedings on any prior date nor the High Court has returned any finding that the appellant had knowledge of probate proceedings and she is guilty of filing an application with delay. There being no finding of the Calcutta High Court that on any earlier point of time the appellant had knowledge of the probate proceedings, the observation that the application having been filed with inordinate delay and deserved to be rejected cannot be approved21. We, thus, are of the view that in the facts and circumstances of the present case no delay can be imputed on the appellant in filing application for revocation of probate when after getting inspection of the PLA records on 19.05.2011 she immediately filed the application for revocation of the probate in July, 2011 itself. The observation of the High Court that there was inordinate delay is unsustainableThe acceptance of the above argument shall be permittingaddition of a word probate in Rule 9 whereas Rule 9 only uses expression letters of administration33. In the present case although there cannot be any dispute to the legal proposition that discretion is vested under Section 283 to issue citation or not but such discretion has to be judicially exercised with proper care adverting to the facts of each case34. In the case before us the Will was dated 15.06.1961, probate application was filed on 27.05.1982, that is almost after 20 years. The application for probating a Will which is claimed to have been executed 20 years before, learned Single Judge ought to have been cautious in proceeding further with the matter. We notice that along with the application for probating the Will which has been brought on the record as Annexure P-2, the propounder of probate has verified the application along with a consent certificate which was annexed by Smt. Harnam Kaur Randhawa wife of Surjan Singh Randhawa, Smt. Gian Hanspal wife of Dr. Harbhajan Hanspal daughter of Surjan Singh Randhawa and no objection of Smt. Beena Mehra wife of V.K. Mehra another daughter of Surjan Singh Randhawa. Both Smt. Harnam Kaur and Smt. Gian Hanspal were beneficiary of the Will their no objection to the Will had no adverse effect. The no objection given by Smt. Beena Mehra was material since Beena Mehra being second daughter of deceased was being dis- inherited from the suit property. Photocopy of the no objection filed by Smt. Beena Mehra has been brought on record along with the rejoinder-affidavit, a perusal of which appears that all the three no objections were notarised by the same Notary, an Advocate, Shri Dilip Kumar Basu. It is not even claimed that Shri D.K. Basu who identified Beena Mehra was engaged as counsel by Beena Mehra by executing any Vakalatnama35. The factum of filing of suit for partition by Smt. Beena Kumari Mehra in the year 1984 where there is neither any reference of the Will of Surjan Singh Randhawa nor reference of probate proceedings and further in the written statement filed in the said suit by Smt. Gian Hanspal, elder sister of Smt.Beena Kumari Mehra there is no mention of Will of Surjan Singh Randhawa or probate proceedings to base her right and to the contrary rights were claimed only on the basis of registered deed of gift dated 25.03.1964 executed by Smt. Harnam Kaur Randhawa in favour of Smt. Gian Hanspal, which cast a doubt on the alleged consent given by Smt. Beena Kumari Mehra in the probate proceedings. Had Smt.Beena Kumari Mehra given consent in probate proceedings in the year 1982, it ought to have been reflected in the suit or in the written statement filed by Smt. Gian Hanspal. The conduct of Smt.Beena Kumari Mehra in filing suit in 1984 claiming partition and no reference of probate in the said proceedings clearly indicates that Smt.Beena Kumari Mehra was not even aware of the probate proceedings when the suit was filed. In the written statement filed by Smt. Gian Hanspal, who was the beneficiary of the Will as well as the probate proceedings which there was no mention of probate proceedings which makes us wonder as to why the probate proceedings were not mentioned in the written statement. and if Smt. Beena Kumari Mehra has signed as alleged why she was not confronted with the probate proceedings in the written statement. No mention of probate proceedings clearly indicatesthat neither Smt. Beena Kumari Mehra was aware of probate proceedings nor she was confronted with such proceedings36. We are of the view that in the facts and circumstances of the present case, learned Single Judge erred in not issuing any citation to Smt. Beena Mehra in the probate proceedings and without any verification of genuineness of no objection certificates mechanically granted probate which was unsustainable. If it is accepted that in probate proceedings persons who have been dis-inherited in the Will on mere no objection certificates by them without either being called by probate court to appear and certify their no objections or to file any pleading will lead to unsatisfactory result and may cause prejudice to persons who were not aware of the proceedings and are yet claimed to have submitted no objections. We, thus, conclude that even though learned Single Judge had discretion to issue citation or not but in the facts of the present case a citation ought to have been issued in exercise of discretion conferred under Section 283 of the Succession Act and the probate granted without issuance of such citation in the facts of the present case deserves to be revoked and learned Single Judge and the Division Bench committed error in rejecting the application for revocation filed by the appellantAlthough, the respondent No.4 was impleaded as one of the parties, we are of the view that at thisstage it is not necessary to advert to the submission of the learned counsel for respondent No.4. In view of our conclusion as noted above that revocation application filed by the appellant deserves to be allowed, the order dated 04.06.1982 granting probate in PLA No.90 of 1982 deserves to be set aside and the probate proceedings shall stand revived before the learned Single Judge and it is yet to be considered by the learned Single Judge as to what orders are to be passed in the proceedings in PLA No.90 of 1982 and all the contentions which are sought to be raised by respondent No.4 are to be adverted in the above proceedings38. The submission raised by respondent No.4 needs no consideration in these proceedings which were initiated by the appellant only for revocation of probate. Learned counsel for respondent Nos.1, 2 and 3 has further submitted that the appellant had already filed a suit being Title Suit No.59/2013 in the Court of First Civil Judge(Senior Division) at Alipore where a declaration is claimed that the indenture of conveyancedated 28.06.2010 executed and registered in favour of respondent No.4 is void, illegal and invalidThe Calcutta High Court in the impugned judgments has only dealt with the proceedings initiated by the appellant for revocation of probate, we need to consider the said proceedings only insofar as related to application filed by the appellant for revocation of probate dated 04.06.1982.