MANJU PURI versus RAJIV SINGH HANSPAL & ORS.
[2019] 13 S.C.R. 829, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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MANJU PURI
v.
RAJIV SINGH HANSPAL & ORS.
(Civil Appeal No. 8455 of 2019)
NOVEMBER 14, 2019.
[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
Succession Act, 1925: ss. 268, 283, 276 – Probate of Will –
Revocation of – Issuance of citation to legal heirs – Requirement
of – On facts, testator executed a Will bequeathing immovable
property to his eldest daughter – 20 years later probate obtained
and no objection certificates of two daughters of the testator and
his wife attached – Two years later, suit for partition by younger
daughter of testator against the eldest daughter in respect of the
immovable property – Written statement by the eldest daughter that
the said property was gifted to her by her mother – Dismissal of
the partition suit – Subsequently, legal heirs of the eldest daughter
sold the property – Thereafter, appellant-daughter of testator’s
younger daughter filed application for revocation of probate –
Rejection of application by the Single Judge as well as the Division
Bench of the High Court – On appeal, held: There was no reference
about Will nor of probate proceedings in the suit for partition and
in the written statement – Rights were claimed on the basis of
registered deed of gift executed by the mother in favour of her elder
daughter, which cast a doubt on the alleged consent given by the
younger daughter in the probate proceedings – It is the appellant’s
case that she came to know about the probate proceedings only
through conveyance deed – No
finding of the High Court that on
any earlier point of time the appellant had knowledge of the
probate proceedings as such there was no inordinate delay in filing
the application – Furthermore, the Single Judge erred in not issuing
any citation to the younger daughter of the testator in the probate
proceedings and without any verification of genuineness of no
objection certificates mechanically granted probate which was
unsustainable – Even though Single Judge had discretion to issue
citation or not but in the facts of the instant case a citation ought
to have been issued in exercise of discretion conferred u/s. 283
and the probate granted without issuance of such citation in the
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facts of the instant case is to be revoked – Thus, the application
for revocation of probate is allowed and probate is revoked – Rules
of the High Court at Calcutta (Original Side), 1914 – Chapter
XXXV.
Allowing the appeal, the Court
HELD: 1.1. 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 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 approved. [Para 20] [841-B-C]
1.2 In the facts and circumstances of the instant 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
unsustainable. [Para 21] [841-D]
1.3 The Will of SS which has
been probated is unregistered
Will dated 15.06.1961. For the probate of the Will the application
was filed by the executor on 27.05.1982 and the Will was
probated on 04.06.1982. It is admitted case of the parties that
no citation was issued by the Single Judge to any of the legal
heirs of deceased. In the instant case counter–affidavit has been
filed by respondent Nos.1,2 and 3 where they have taken a
specific case that citation was not required to be issued. In the
probate proceedings BK consented to grant a probate [Para 25]
[842-G-H; 843-A]
1.4 Rule 5A of the High Court Rules provides that in all
the applications for probate or for letters of administration with
the Will annexed the petition shall state the names of the
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members of the family or other relatives upon whom the estate
would have devolved in case of an intestacy together with their
present place of residence. Rule 9 deals with citation to rightful
parties which requires issue of citation or an application of letters
of administration unless such persons have signified their
consent to the application. Rule 9 begins with the words “on an
application for letters of administration”. Had Rule making
authority wanted to Rule 9 to apply to probate also they ought
to have used both the phrases probate or letters of
administration. Rule making authority wherever intended to
refer both i.e. applications for probate or for letters of
administration, the same has been used like in Rule 4, Rule 4A,
Rule 4B, Rule 5A, Rule 6 where both the expressions “probate
of a Will” and “letters of administration” have been used
whereas Rule 7 uses the expression letters of administration.
Rule 9 uses only the expression letters for administration. Rule
12 deals with direction in citation to show cause on a certain day.
Rule 12 does not refer to either probate or letters of
administration and thus, is equally applicable to both the
expressions. The applicability of Rule 12 with regard to both
letters of administration and probate which is clear from Form
V. [Para 27] [844-B-E]
1.5 Respondents submitted that Rule 9 which provides
that in case where persons have signified their consent, no
citation needs to be issued also applies to the
case of probate.
The acceptance of the said submission shall be permitting
addition of a word “probate” in Rule 9 whereas Rule 9 only uses
expression “letters of administration”. The High Court held that
Rule 9 of the High Court Rules, is applicable only in case of grant
of letters of administration and not applicable to the grant of
probate. [Para 28, 29] [844-F-H]
1.6 Reading of s. 283 of the Succession Act, 1925 makes
it clear that by the use of word ‘may’ a discretion has been
conferred on the District Judge to issue citations calling upon
all persons claiming to have any interest in the estate of the
deceased. Although, it is true that there is discretion vested to
issue citation or not but such discretion has to be exercised with
proper care adverting to the facts of each case. [Para 31, 33]
[846-B-C; 847-A]
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1.7 The application for probating a Will which is claimed
to have been executed 20 years before, the Single Judge ought
to have been cautious in proceeding further with the matter.
Along with the application for probating the Will which has been
brought on the record, the propounder of probate has verified
the application along with a consent certificate which was annexed
by HK, wife of SS, GH, daughter of SS and no objection of BK,
another daughter of SS. Both HK and GH were beneficiary of
the Will their no objection to the Will had no adverse effect. The
no objection given by BK was material since BK being second
daughter of deceased was being dis–inherited from the suit
property. Photocopy of the no objection filed by BK 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. It is not even claimed that the Notary who
identified BK was engaged as counsel by BK by executing any
Vakalatnama. [Para 34] [847-B-E]
1.8 The factum of filing of suit for partition by BK in the
year 1984 where there is neither any reference of the Will of
SS nor reference of probate proceedings and further in the
written statement filed in the said suit by GH, elder sister of
BK there is no mention of Will of SS or probate proceedings to
base her right and to the contrary rights were claimed only on
the basis of registered deed of gift
executed by HK in favour of
GH, which cast a doubt on the alleged consent given by BK in
the probate proceedings. Had BK 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 GH. The conduct
of BK in filing suit in 1984 claiming partition and no reference
of probate in the said proceedings clearly indicates that BK was
not even aware of the probate proceedings when the suit was
filed. In the written statement filed by GH, who was the
beneficiary of the Will as well as the probate proceedings which
there was no mention of probate proceedings which makes
this Court wonder as to why the probate proceedings were
not mentioned in the written statement. And if BK 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 BK was aware of
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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. [Para 35] [847-E-H; 848-A-C]
1.9 In the facts and circumstances of the instant case, the
Single Judge erred in not issuing any citation to BM 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. Even though
Single Judge had discretion to issue citation or not but in the
facts of the instant 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 instant case deserves to be revoked
and the Single Judge and the Division Bench committed error
in rejecting the application for revocation. [Para 36] [848-D-G]
1.10 It was submitted 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 High Court. The High Court in the
impugned judgments has only dealt with the proceedings initiated
by the appellant for revocation of probate. The said proceedings
need to be considered only insofar as related to application filed
by the appellant for revocation of probate. The order passed by
the Single Judge as well as Division Bench of the High Court
is set aside and the application for revocation of probate is
allowed and the probate is revoked. The PLA application is
revived before the Single Judge of the High Court which may
be considered and decided in accordance with law. [Para 39, 40]
[849-E-F]
MANJU PURI v. RAJIV SINGH HANSPAL
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Jyotsana Rajgarhia v. Dipak Kumar Himatsingka
(2002) ILR 2 Cal 402; Kamona Soondury Dassee v.
Hurro Lall Shaha (1882) ILR 8 Cal 570; Shyama
Charan Baisya v. Prafull Sundari Gupta AIR 1916 Cal
623; Harimati Debi and another v. Anath Nath Roy
Choudhury AIR 1939 Cal 535 – referred to.
Case Law Reference
(2002) ILR 2 Cal 402
referred to
Para 29
(1882) ILR 8 Cal 570
referred to
Para 31
AIR 1916 Cal 623
referred to
Para 32
AIR 1939 Cal 535
referred to
Para 35
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8455
of 2019.
From the Judgment and Order  dated 13.04.2017 of the High
Court  at Calcutta in APO No. 94 of 2016 with PLA No. 90 of 1982
Siddharth Luthra, Sr. Adv., Hrishikesh Baruah, Pranav Jain,
Akshay Sehgal, Kunal Minani, Saif Shams, Advs. for the Appellant.
Jayant Bhushan, Jishnu Saha, Sr. Advs., D. N. Mitra,
Ms. Sudeshna Bagchi, Ms. Sonia Dube, Ms. Kanchan Yadav,
Ms. Sayantika Mitra, M/S. Victor Moses & Associates, Ankit Shroff,
Pankaj Jain, Bijoy Kumar Jain, Advs. for the Respondents.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. This appeal has been filed against the Division Bench judgment
dated 13.04.2017 of Calcutta High Court dismissing the appeal filed by
the appellant against the judgment and order of learned Single Judge
dated 24.08.2015 rejecting the application filed by the appellant for
revocation of probate dated 04.06.1982 in relation to Will of one Surjan
Singh Randhawa.
2. Brief
facts necessary to be noticed for deciding this appeal
are:
One, Surjan Singh Randhawa had purchased immovable property
which was subsequently numbered as 5/1A Belvedere Road, Kolkata
along with his brother, Bachittar Singh Randhawa, in the names of their
respective wives, Smt. Harnam Kaur Randhawa and Smt. Celia Mary
Randhawa. Surjan Singh Randhawa had two daughters, namely, Smt.
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Gian Hanspal and Smt. Beena Kumari Mehra. On 15.06.1961, Surjan
Singh Randhawa executed a Will bequeathing the above immovable
property to his eldest daughter, Smt. Gian Hanspal. Surjan Singh
Randhawa died on 28.11.1962. Registered gift deed dated 25.03.1964
was executed by Smt. Harnam Kaur Randhawa in favour of Smt. Gian
Hanspal with regard to above property numbered as 5/1C Belvedere
Road, Kolkata on 27.05.1982. Bachittar Singh Randhawa, brother of
late Surjan Singh Randhawa filed a probate petition before the Calcutta
High Court seeking grant of probate in relation to the Will dated
15.06.1961. Along with probate petition three no objection certificates
were attached i.e. certificates of Smt. Gian Hanspal, Smt. Harnam Kaur
Randhawa and Smt. Beena Kumari Mehra. Calcutta High Court vide
its order dated 04.06.1982 allowed the application and granted probate
in favour of Bachittar Singh Randhawa.
3. In April, 1984, Smt. Beena Kumari Mehra filed a suit against
Smt. Gian Hanspal for partition of the property including the premises
5/1C Belvedere Road, Kolkata. In the suit Smt.Gian Hanspal was
impleaded as defendant. In the suit Smt. Beena Kumari Mehra claimed
that after the death of Smt. Harnam Kaur Randhawa, the mother of
the plaintiff, she along with her sister, Smt. Gian Hanspal became entitled
to share in the property. In the suit written statement was filed by Smt.
Gian Hanspal opposing the claim of the plaintiff. It was pleaded in the
written statement
that Smt. Harnam Kaur Randhawa has gifted the
premises 5/1C Belvedere Road, Kolkata by registered Gift Deed dated
25.03.1964, the suit was claimed to be barred by time. Smt. Gian
Hanspal died during the pendency of the suit on 24.02.1988 and her
heirs were impleaded.
4. Dr. Harbhajan Singh Hanspal, who was substituted in the suit
being T.S. No.61 of 1984 filed a written statement reiterating the claim
on the basis of the registered gift deed dated 25.03.1964. It was further
pleaded that the plaintiff had notice and knowledge of the Will at least
from 29.08.1984 when the copy of the written statement was served
upon the plaintiff. Smt. Beena Kumari Mehra died on 05.05.2008.
5. The suit filed by Smt. Beena Kumari got dismissed for non-
prosecution and application for restoration of the suit also failed. On
28.06.2010, Rajiv Singh Hanspal, son of Smt. Gian Singh and late Dr.
Harbhajan Singh Hanspal with two others sold the premises, 5/1C
Belvedere Road, Kolkata in favour of one Rungta Mines Limited.
6. The appellant came to know about the conveyance deed and
through conveyance deed came to know the probate dated 05.06.1982.
MANJU PURI v. RAJIV SINGH HANSPAL
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The appellant, daughter of Smt. Beena Kumari Mehra, filed an
application G.A. No.2441 of 2011 for revocation of the probate granted
on 05.06.1982 impleading respondent Nos.1, 2 and 3 as the legal heirs
of Gian Hanspal, respondent No.4, the purchasers of the premises in
dispute by conveyance deed and respondent Nos.5 and 6 as performa
respondents were impleaded. The brothers of the appellant were
impleaded as proforma respondents. In the application the case of the
appellant was that after coming to know about the conveyance she got
inspected the probate application, records of P.L.A. No.90 of 1982 on
19.05.2011 and came to know that on the basis of no objection
certificate of the appellant’s mother, late Smt. Beena Kumari Mehra
probate was granted. Appellant’s case was that probate was obtained
upon false representation, without any notice to the appellant’s mother
who was legal heir of the deceased, Surjan Singh Randhawa. It was
further pleaded that signatures of the appellant’s mother on the said no
objection certificate were forged signatures as the appellant’s mother
was shown to have signed as Beena Mehra, whereas she used to sign
as Beena Kumari Mehra which is apparent from her signatures in
Passport, Will and her PAN Card. It was further pleaded that purported
Will dated 15.06.1981 was not the genuine Will and was created after
his death to deprive her mother of her legal entitlement in the suit
property as a
legal heir of the deceased. The application of the appellant
for revocation of the probate was contested by the respondents. Learned
Single Judge vide order dated 24.08.2015 rejected the application for
revocation of probate. Learned Single Judge held that the appellant
under Indian Succession Act, 1925 is not entitled to any citation. The
mother of the appellant who could have possibly objected to the said
grant had filed an affidavit for consent. Learned Single Judge further
held that moreover, there is an inordinate and inexplicable delay in filing
the application. The mother of the appellant never objected the grant
during her life time. Application was rejected on these observations.
7. The appeal was filed by the appellant before the Division
Bench against the judgment of the learned Single Judge dated 24.08.2015
and which appeal also came to be dismissed by the Division Bench by
order dated 13.04.2017 impugned in the present appeal. The Division
Bench held that the trial court appears to have considered the matter
in its proper perspective and the relevant discretion exercised in rejecting
the petition for revocation does not appear to be perverse.
 8. We have heard Shri Siddharth Luthra, learned senior counsel,
appearing for the appellant and Shri Jayant Bhushan, learned senior
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counsel, appearing for respondent Nos.1, 2 and 3. We have also heard
Shri Jishnu Saha, learned senior counsel appearing for respondent No.4.
9. Shri Luthra contended that probate was granted on 04.06.1982
within a week from filing of the application on 27.05.1982 without issuing
any citation to mother of the appellant who was younger daughter of
Surjan Singh Randhawa, a legal heir. No objection certificate which was
appended with the probate application alleged to have been signed by
Beena Kumari was a forged no objection certificate. Beena Kumari,
the mother of the appellant used to sign as Beena Kumari Mehra. It is
further submitted that a suit was filed for partition of the suit property
by Beena Kumari in April, 1984 in which suit written statement was
filed by Smt. Gian Hanspal where there was no reference to probate
dated 04.06.1982.  The claim of the suit premises was on the basis of
the gift deed dated 25.03.1964 executed by Smt. Harnam Kaur
Randhawa in favour of Smt. Gian Hanspal. It is submitted that had
Beena Kumari given consent in the probate proceedings there was no
question of her filing suit for partition. The factum of filing of suit for
partition by appellant’s mother clearly indicates that neither she has filed
no objection certificate nor she was aware of such proceedings. It is
submitted that the application filed by the appellant who is daughter of
Smt. Beena Kumari Mehra was fully covered under the grounds for
revocation under
Section 263. The proceeding for obtaining the grant
of probate was fraudulent proceeding which ought to have been set
aside by the High Court. It is submitted that for grant of probate it is
necessary to issue a citation to legal heirs and no citation having been
issued in the present case the entire proceeding deserved to be set aside.
 10. Shri Siddharth Luthra has also referred to Chapter XXXV
of the Rules of the High Court at Calcutta (Original Side), 1914
(hereinafter referred to as “High Court Rules”) dealing with the
Testamentary and Intestate Jurisdiction. Shri Luthra submits that Rules
contemplate issuance of citation.
11. Shri Jayant Bhushan, learned senior counsel, appearing for
respondent Nos.1,2 and 3 submits that for grant of probate it is not
mandatory to issue a citation. He submits that use of word ‘may’ in
Section 283 of Indian Succession Act, 1925 clearly indicates that it is
in the discretion of the District Judge to issue or not to issue citation.
Mere non-issuance of citation does not lead to any illegality.  Referring
to Rule 9 of Chapter 35 of the Rules of the High Court at Calcutta
(Original Side), 1914, Shri Jayant Bhushan submits that issuance of
citation is contemplated for letters of Administration unless such person
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signifies consent, which Rules also provide for grant of probate. He
submits that there being no objection by Smt. Beena Kumari Mehra
there was no occasion of issuance of any citation as well and there is
no illegality found in the above probate.
12. He further submits that probate proceedings were initiated
by Bachittar Singh Randhawa, brother of deceased. He further submits
that the suit for partition filed in April, 1984 was dismissed for non-
prosecution and the matter was not further carried by Smt. Beena
Kumari Mehra, it is clear that she never wanted to prosecute the matter
any further. After the death of Smt. Beena Kumari Mehra it is not open
to the appellant to file an application for revocation of probate after 30
years of grant when both Smt. Beena Kumari Mehra and Smt. Gian
Hanspal are dead. He further submits that in view of the dismissal of
suit for partition any claim for possession of the suit premises is barred
and no useful purpose shall be served in exercising jurisdiction under
Article 136 in the facts of the present case. Mother’s suit for partition
having been dismissed for non-prosecution, suit by daughter is clearly
barred.
13. Learned counsel appearing for respondent No.4 submits that
respondent No.4 is a bona fide purchaser for value who purchased the
property on the strength of probate granted in favour of the vendors.
He submits that the rights of respondent No.4 need to be protected
and
it cannot suffer due to fight between the appellant and respondent
No.1,2 and 3. He further submits that in any view of the matter the
revocation of probate shall operate prospectively not affecting any of
the rights of respondent No.4.
14. Learned counsel for the parties have also referred to and
relied on some judgments which we shall notice hereinafter.
15. We have considered the submissions of the learned counsel
of the parties and perused the material on record.
16. The main issue needs to be considered and answered in the
appeal is as to whether sufficient grounds were made out in the
application for revocation of probate filed by the appellant and the High
Court committed error in rejecting the application as well as dismissing
the appeal.
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 Surjan Singh Randhawa, the deceased whose Will
was probated by the High Court. Respondent Nos.1,2 and 3 are legal
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heirs of eldest daughter of deceased Surjan Singh Randhawa, Smt. Gian
Hanspal.
 18. Both the learned Single Judge and the High Court in rejecting
the application filed by the appellant for revocation had observed that
there was inordinate delay in filing the application. The probate of the
Will was granted on 04.06.1982 and the application for revocation of
probate was filed by the appellant with affidavit which is dated
27.07.2011. From the conveyance deed she claimed to know about the
case being No. PLA No.90 of 1982 where the High Court granted
probate of the Will of 04.06.1982. In paragraph 15 of the application
the details of coming to know about the probate proceedings have been
mentioned which are relevant to be reproduced:
“15.After coming to know of the said facts your petitioner
instructed her advocate on record to Institute suitable legal
proceedings for cancellation of the said Indenture. However, she
was advised that before instituting the legal proceedings it was
necessary to take inspection of proceedings in which probate to
the purported last Will of the said deceased was granted to
ascertain whether the petitioner’s mother had consented to grant
of the said probate and whether the Will of the said deceased
was genuine. As advised your petitioner come down to Kolkata
and took inspection of the records of PLA No.90 of 1982 on
19.5.2011. From the records of the said PLA it appears that the
same was filed on 27.5.1982 and that a purported no
objection
certificate of your petitioner’s mother notarised on 19.4.1982
upon identification by one Dilip Kumar Basu said to be practicing
as Advocate in the Learned Chief Metropolitan Magistrate’s
Court, was filed in order to show as if your petitioner’s mother
had given no objection to grant of probate of the said Will. Your
petitioner also inspected the said no objection certificate which
your petitioner’s mother is alleged to have signed as “Beena
Mehra”. The said signature is not of your petitioner’s mother.
Your petitioner’s mother always signed as “Beena Kumari
Mehra”. The copies of PAN Card and Passport of your mother
issued in July 1982 both bearing her genuine signatures are
annexed thereto and collectively marked Annexure “E”. Prior to
her death on 5.5.2008 your petitioner’s mother had made her last
Will dated 30th June 2005 which was registered. The said Will
also bears her genuine signatures. A copy of the said Will is
annexed hereto and included in Annexure “E”. The handwriting
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[ASHOK BHUSHAN, J.]
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under which the said words “Beena Mehra” have been written
is not of your petitioner’s mother. From the records of the said
PLA it further appears that purported no objections of the said
Harnam Kaur Randhawa and Gian Hanspal also notarised by the
same Notary in April 1982 were filed. Your petitioner’s advocate
has obtained, a certified copy of the application in said PLA a
copy whereof is annexed hereto and marked Annexure “F”.”
19. In the application also details of Suit No.61 of 1984 filed by
Beena Kumari Mehra, mother of the appellant, have been mentioned
wherein written statement was filed by Smt. Gian Hanspal. The filing
of suit for partition by Smt. Beena Kumari Mehra is not denied nor
filing of written statement by Smt. Gian Hanspal is denied. The copy
of the plaint of Suit No.61 of 1984 has been brought on record as
Annexure ‘P-4’. It is indicated that the appellant’s mother claimed that
after the death of her mother on 12.04.1982 she and her elder sister,
defendant No.1 became co-sharer to the extent of ½ share each in
the property. There was no reference of probate dated 04.06.1982 or
no objection given by Beena Mehra in the written statement filed by
Smt.Gian Hanspal, the defendant No.1, although in paragraph 1 there
is mention of registered gift given by Smt.Harnam Kaur Randhawa in
favour of the Smt. Gian Hanspal which is to the following effect:
“1.The allegations of paragraph 1 of the plaint are not
correct.
Mrs. Harnam Kaur Randhawa long before her death made a gift
of the house and premises No.5/1C Belvedere Road by a
registered instrument dated 25.03.1960. After that defendant has
been the sole and absolute owner of the said premises. The
defendant having been in possession of the said property from
1964 March to date on the basis of and on a claim of title, the
plaintiff’s claim of succession as an heir of the mother is not
tenable in law and fact.”
20. 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 on 26.03.1986 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
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proceedings only through conveyance deed executed by respondent
Nos.1,2 and 3 in favour of respondent No.4 dated 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
approved.
21. 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 unsustainable.
 22.
Now, we come to the submission that as to whether issuance
of citation to the legal heir is contemplated according to the provisions
of the Indian Succession Act, 1925 as well as the High Court Rules.
Chapter III of the Succession Act deals with alteration and revocation
of grants. Section 263 provides for revocation or annulment for just
cause which is to the following effect:
“263. Revocation or annulment for just cause.-The grant of
probate or letters of administration may be revoked or annulled
for just cause.
Explanation.-
………
………
………
Illustrations
(i)
 ………
………
………
(ii) The grant was made without citing parties who ought to have
been cited.
(iii) The will of which probate was obtained was forged or
revoked.
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[ASHOK BHUSHAN, J.]
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………
………
………”
23. Chapter IV of the Succession Act contains a heading “OF
THE PRACTICE IN GRANTING AND REVOKING PROBATES
AND LETTERS OF ADMINISTRATION”. Section 268 of the Act
provides that proceedings of the Court of the District Judge in relation
to the granting of probate and letters of administration shall, save as
hereinafter otherwise provided; be regulated, so far as the circumstances
of the case permit, by the Code of Civil Procedure, 1908.
24. Section 276 deals with petition for probate. Section 283 deals
with the powers of District Judge. Section 283 is as follows:
“283. Powers of District Judge.-(1) In all cases the District
Judge or District Delegate may, if he thinks proper,—
(a) examine the petitioner in person, upon oath;
(b) require further evidence of the due execution of the will or
the right of the petitioner to the letters of administration, as
the case may be;
(c) issue citations calling upon all persons claiming to have any
interest in the estate of the deceased to come and see the
proceedings before the grant of probate or letters of
administration.
(2) The citation shall be fixed up in some conspicuous part of
the court-house, and also in the office of the Collector of the
district and otherwise published or made known in such manner
as the Judge or District Delegate issuing the same may direct.
(3) Where any portion of the assets has been stated by the
petitioner to be situate within the
jurisdiction of a District Judge
in another State, the District Judge issuing the same shall cause
a copy of the citation to be sent to such other District Judge,
who shall publish the same in the same manner as if it were a
citation issued by himself, and shall certify such publication to
the District Judge who issued the citation.”
25. We may revert back to the proceedings which were
undertaken in the present case. The Will of Surjan Singh Randhawa
which has been probated is unregistered Will dated 15.06.1961. For the
probate of the Will the application was filed by the executor on
27.05.1982 and the Will was probated on 04.06.1982. It is admitted case
of the parties that no citation was issued by the learned Single Judge
to any of the legal heirs of deceased. In the present case counter-
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affidavit has been filed by respondent Nos.1,2 and 3 where they have
taken a specific case that citation was not required to be issued. In the
probate proceedings since Smt. Beena Kumari Mehra consented to
grant a probate, in paragraph 3(y) of the counter-affidavit following has
been stated:
“3(y)The said Smt. Harnam Kaur Randhawa, and Gian Hanspal
came to know about the Will in the year 1981. Immediately
thereafter, the said Smt. Harnam Kaur Randhawa took steps for
obtaining the probate of the Will. Since Beena Kumari Mehra
consented to the grant of probate, there was no occasion to serve
any citation on her. Under Indian Succession Act, citation is
served only upon dissenting heirs of the testator.”
26. Shri Jayant Bhushan, learned senior counsel, appearing for
the respondent Nos.1,2 and 3 has submitted that it was not mandatory
for District Judge to issue citation where no objection certificate/consent
has been filed by the legal heirs of the deceased. Section 283 as
extracted above deals with the power of District Judge. In Section
283(1) the word ‘may’ has been used which as submitted by the learned
counsel for the respondents gives discretion to District Judge to issue
citation or not. The power given to the District Judge under Section
283 governs both petition for probate which is provided in Section 276
and petition for letters of administration as provided in Section 278. The
Calcutta High Court has framed Rules, namely, Rules of the High Court
at Calcutta (Original Side), 1914, Chapter XXXV of which relates to
Testamentary and Intestate Jurisdiction. Rules 5A, 9 and 12 of the
Rules which are relevant are as follows:
“5A. In all applications for probate or for letters of administration
with the will annexed the petition shall state the names of the
members of the family or other relatives upon whom the estate
would have devolved in case of an intestacy together with their
present place of residence.
9. Citation to rightful parties. - On an application for letters
of administration, unless otherwise ordered, a citation shall issue
to all persons having a right to take the grant prior or equal to
that of the applicant, unless such persons have signified their
consent to the application.
12. Direction in citation to show cause on a certain day. -
All citations shall, unless otherwise ordered, direct the persons
cited to show cause on the fourth day from the day of service
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where the parties to be cited reside within the town of Calcutta,
or on such day certain as the Judge shall direct where they reside
outside Calcutta; and, where they cannot be served in the manner
provided for service of process, may be served by the insertion
as an advertisement in such local newspapers as may be
directed, of a Notice in Form No. 5.”
27. Rule 5A provides that in all the applications for probate or
for letters of administration with the Will annexed the petition shall state
the names of the members of the family or other relatives upon whom
the estate would have devolved in case of an intestacy together with
their present place of residence. Rule 9 deals with citation to rightful
parties which requires issue of citation or an application of letters of
administration unless such persons have signified their consent to the
application. Rule 9 begins with the words “on an application for letters
of administration”. Had Rule making authority wanted to Rule 9 to apply
to probate also they ought to have used both the phrases probate or
letters of administration. Rule making authority wherever intended to
refer both i.e. applications for probate or for letters of administration,
the same has been used like in Rule 4, Rule 4A, Rule 4B, Rule 5A,
Rule 6 where both the expressions “probate of a Will” and “letters of
administration” have been used whereas Rule 7 uses the expression
letters of administration.
Rule 9 uses only the expression letters for
administration. Rule 12 deals with direction in citation to show cause
on a certain day. Rule 12 does not refer to either probate or letters of
administration and thus, is equally applicable to both the expressions.
The applicability of Rule 12 with regard to both letters of administration
and probate which is clear from Form V which uses the expression:
“Petition for probate_________________
Letters of Administration”
28. Learned counsel for the respondents has submitted that Rule
9 which provides that in case where persons have signified their consent,
no citation needs to be issued also applies to the case of probate. The
acceptance of the above argument shall be permitting addition of a word
“probate” in Rule 9 whereas Rule 9 only uses expression “letters of
administration”.
29. The Calcutta High Court has already taken the view that Rule
9 of the High Court Rules, Chapter XXXV is applicable only in case
of grant of letters of administration and not applicable to the grant of
probate. In Jyotsana Rajgarhia vs. Dipak Kumar Himatsingka,
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(2002) ILR 2 Cal 402, the High Court had occasion to consider a
case where revocation of a probate was asked for. In the above case
also the person seeking for revocation for grant of a probate was claimed
to have consented to such grant and it was contended that since the
party has consented for grant of probate it was not entitled for issuance
of any citation. In paragraphs 1 and 2 of the judgment facts of the case
are noted which are to the following effect:
“1. This is an application for revocation of the probate granted
by this Court dated February 10, 1987 in No. 17 of 1987 in the
Goods of Smt. Usha Devi Himatsingka and further recalling the
order dated January 21, 1987 granting probate. The probate was
granted without any contest admittedly. The Petitioner and the
Respondent No. 2, viz., Anita Fetehpuria are two sisters. The
Respondent No. 2 is supporting the Petitioner and also asking
for revocation of grant of probate.
2. The short case of the Petitioner is that the probate was
obtained fraudulently and without serving any citation and/or
notice of filing of such application. Consent which was recorded
at the time of grant of probate was fraudulent and no lawyer
was engaged either on behalf of the Petitioner or on behalf of
the Respondent No. 2 to give consent. She had no knowledge
of passing of the impugned order of granting probate until May
1999 when a letter was communicated by M/ s. Sinha and Co.
together with copies of the application on
which probate was
granted to the last Will and testament of her mother dated
September 17, 1981. She has also stated that she never engaged
any. lawyer nor executed any Vakalatnama in favour of Mr. Pulak
Lahiri or any other person. The said Vakalatnama allegedly
executed in favour of Pulak Lahiri is forged one. As such Pulak
Lahiri did not have any authority either to appear or give consent
on behalf of the Petitioner to grant probate.”
30. On service of citation it was contended before the High Court
that in view of Rule 9 service of citation was not necessary which
argument was repelled by the High Court in the following words:
“36………Moreover it is noticed that grant is also defective as
no citation either special; or general was served upon the
applicant under Section 283(1)C and (2) of Indian Succession
Act 1925. It is contended by Mr. A.K. Mitra that, since consent
was signified by the applicant under f. 9 of Chapter XXXV of
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the Original Side Rule, service of citation was not necessary. I
am unable to accept this contention, as the above Rule is
applicable in case of grant of Letters of Administration, not
probate.”
31. A plain reading of Section 283 makes it clear that by the use
of word ‘may’ a discretion has been conferred on the District Judge to
issue citations calling upon all persons claiming to have any interest in
the estate of the deceased. Although, it is true that there is discretion
vested to issue citation or not but such discretion has to be exercised
with proper care. The Calcutta High Court in Kamona Soondury
Dassee v. Hurro Lall Shaha, (1882) ILR 8 Cal 570, had occasion
to consider pari materia provision of Section 250 of the Succession Act,
1865 where discretion was vested in the District Judge to issue citation
or not. Calcutta High Court had observed in the said case that when
Will is propounded which alters the devolution of property, a special
citation should be directed. Further the discretion vested with the District
Judge has to be exercised with proper care. Following observation was
made by the Calcutta High Court:
“……Section 250 of the Succession Act vests the District Judge
with full discretion, which should be exercised with proper care:
and when a will is propounded which alters the devolution of
property, a special citation should be directed to be served upon
the person or persons who is or are
immediately affected by the
will. ……”
32.The Calcutta High Court in another judgment in Shyama
Charan Baisya vs. Prafull Sundari Gupta, AIR 1916 Cal 623, in
a case where provisions of Probate and Administration Act, 1881 came
for consideration, held that when a Will is propounded which alters the
devolution of property, the District Judge should, in the exercise of the
discretion, should direct the special citation. Following was held in the
judgment:
“……as observed in the case of Nistariny v. Brahmomyi,
(1891) 18 Cal. 45, when a will is propounded which alters the
devolution of property, the District Judge should, in the exercise
of the discretion vested in him by S.69 of the Probate Act as to
the mode of issuing citations, direct special citations to persons
whose rights are immediately affected by the will. ……”
33. In the present case although there cannot be any dispute to
the legal proposition that discretion is vested under Section 283 to issue
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citation or not but such discretion has to be judicially exercised with
proper care adverting to the facts of each case.
34. 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 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
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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
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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. We allow this appeal, set
aside orders passed by the learned Single Judge as well as Division
Bench of the Calcutta High Court, application for revocation of probate
is allowed, probate dated 04.06.1982 is revoked. The application PLA
No.90 of 1982 is revived before the learned Single Judge of the High
Court which may be considered and decided in accordance with law.
40. The case being old one, we request the High Court to
expeditiously dispose of the proceedings. Parties shall bear their own
costs.
Nidhi Jain
Appeal allowed.
MANJU PURI v. RAJIV SINGH HANSPAL
[ASHOK BHUSHAN, J.]