MANJU PURI versus RAJIV SINGH HANSPAL & ORS. on 14 November 2019

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 – Requirementof – On facts, testator executed a Will bequeathing immovableproperty to his eldest daughter – 20 years later probate obtainedand no objection certificates of two daughters of the testator andhis wife attached – Two years later, suit for partition by youngerdaughter of testator against the eldest daughter in respect of theimmovable property – Written statement by the eldest daughter thatthe said property was gifted to her by her mother – Dismissal ofthe partition suit – Subsequently, legal heirs of the eldest daughtersold the property – Thereafter, appellant-daughter of testator’syounger daughter filed application for revocation of probate –Rejection of application by the Single Judge as well as the DivisionBench of the High Court – On appeal, held: There was no referenceabout Will nor of probate proceedings in the suit for partition andin the written statement – Rights were claimed on the basis ofregistered deed of gift executed by the mother in favour of her elderdaughter, which cast a doubt on the alleged consent given by theyounger daughter in the probate proceedings – It is the appellant’scase that she came to know about the probate proceedings onlythrough conveyance deed – No finding of the High Court that onany earlier point of time the appellant had knowledge of theprobate proceedings as such there was no inordinate delay in filingthe application – Furthermore, the Single Judge erred in not issuingany citation to the younger daughter of the testator in the probateproceedings and without any verification of genuineness of noobjection certificates mechanically granted probate which wasunsustainable – Even though Single Judge had discretion to issuecitation or not but in the facts of the instant case a citation oughtto have been issued in exercise of discretion conferred u/s. 283and the probate granted without issuance of such citation in the

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Afacts of the instant case is to be revoked – Thus, the applicationfor revocation of probate is allowed and probate is revoked – Rulesof the High Court at Calcutta (Original Side), 1914 – ChapterXXXV.

Allowing the appeal, the CourtB

HELD: 1.1. Without adverting to these facts, the HighCourt could not have jumped on the conclusion that there isinordinate delay in filing the revocation application. Neither thereis anything brought on record by respondent Nos. 1, 2 and 3 toindicate that the appellant or her mother had knowledge ofCprobate proceedings on any prior date nor the High Court hasreturned any finding that the appellant had knowledge of probateproceedings and she is guilty of filing an application with delay.There being no finding of the High Court that on any earlierpoint of time the appellant had knowledge of the probateproceedings, the observation that the application having beenDfiled with inordinate delay and deserved to be rejected cannotbe approved. [Para 20] [841-B-C]

1.2 In the facts and circumstances of the instant case, nodelay can be imputed on the appellant in filing application forrevocation of probate when after getting inspection of the PLAErecords on 19.05.2011 she immediately filed the application forrevocation of the probate in July, 2011 itself. The observationof the High Court that there was inordinate delay isunsustainable. [Para 21] [841-D]

1.3 The Will of SS which has been probated is unregisteredFWill dated 15.06.1961. For the probate of the Will the applicationwas filed by the executor on 27.05.1982 and the Will wasprobated on 04.06.1982. It is admitted case of the parties thatno citation was issued by the Single Judge to any of the legalheirs of deceased. In the instant case counter–affidavit has beenfiled by respondent Nos.1,2 and 3 where they have taken aGspecific case that citation was not required to be issued. In theprobate 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 allthe applications for probate or for letters of administration withHthe Will annexed the petition shall state the names of the members of the family or other relatives upon whom the estatewould have devolved in case of an intestacy together with theirpresent place of residence. Rule 9 deals with citation to rightfulparties which requires issue of citation or an application of lettersof administration unless such persons have signified theirconsent to the application. Rule 9 begins with the words “on anapplication for letters of administration”. Had Rule makingauthority wanted to Rule 9 to apply to probate also they oughtto have used both the phrases probate or letters ofadministration. Rule making authority wherever intended torefer both i.e. applications for probate or for letters ofadministration, the same has been used like in Rule 4, Rule 4A,Rule 4B, Rule 5A, Rule 6 where both the expressions “probateof a Will” and “letters of administration” have been usedwhereas Rule 7 uses the expression letters of administration.Rule 9 uses only the expression letters for administration. Rule12 deals with direction in citation to show cause on a certain day.Rule 12 does not refer to either probate or letters ofadministration and thus, is equally applicable to both theexpressions. The applicability of Rule 12 with regard to bothletters of administration and probate which is clear from FormV. [Para 27] [844-B-E]

1.5 Respondents submitted that Rule 9 which providesthat in case where persons have signified their consent, nocitation needs to be issued also applies to the case of probate.The acceptance of the said submission shall be permittingaddition of a word “probate” in Rule 9 whereas Rule 9 only usesexpression “letters of administration”. The High Court held thatRule 9 of the High Court Rules, is applicable only in case of grantof letters of administration and not applicable to the grant ofprobate. [Para 28, 29] [844-F-H]

1.6 Reading of s. 283 of the Succession Act, 1925 makesit clear that by the use of word ‘may’ a discretion has beenconferred on the District Judge to issue citations calling uponall persons claiming to have any interest in the estate of thedeceased. Although, it is true that there is discretion vested toissue citation or not but such discretion has to be exercised withproper care adverting to the facts of each case. [Para 31, 33][846-B-C; 847-A]

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A1.7 The application for probating a Will which is claimedto have been executed 20 years before, the Single Judge oughtto have been cautious in proceeding further with the matter.Along with the application for probating the Will which has beenbrought on the record, the propounder of probate has verifiedthe application along with a consent certificate which was annexedBby HK, wife of SS, GH, daughter of SS and no objection of BK,another daughter of SS. Both HK and GH were beneficiary ofthe Will their no objection to the Will had no adverse effect. Theno objection given by BK was material since BK being seconddaughter of deceased was being dis–inherited from the suitCproperty. Photocopy of the no objection filed by BK has beenbrought on record along with the rejoinder–affidavit, a perusalof which appears that all the three no objections were notarisedby the same Notary. It is not even claimed that the Notary whoidentified BK was engaged as counsel by BK by executing anyVakalatnama. [Para 34] [847-B-E]D

1.8 The factum of filing of suit for partition by BK in theyear 1984 where there is neither any reference of the Will ofSS nor reference of probate proceedings and further in thewritten statement filed in the said suit by GH, elder sister ofBK there is no mention of Will of SS or probate proceedings toEbase her right and to the contrary rights were claimed only onthe basis of registered deed of gift executed by HK in favour ofGH, which cast a doubt on the alleged consent given by BK inthe probate proceedings. Had BK given consent in probateproceedings in the year 1982, it ought to have been reflectedFin the suit or in the written statement filed by GH. The conductof BK in filing suit in 1984 claiming partition and no referenceof probate in the said proceedings clearly indicates that BK wasnot even aware of the probate proceedings when the suit wasfiled. In the written statement filed by GH, who was the beneficiary of the Will as well as the probate proceedings whichGthere was no mention of probate proceedings which makesthis Court wonder as to why the probate proceedings werenot mentioned in the written statement. And if BK has signedas alleged why she was not confronted with the probateproceedings in the written statement. No mention of probateHproceedings clearly indicates that neither BK was aware of probate proceedings nor she was confronted with suchproceedings. In the said proceedings, when a Will is sought tobe probated after 20 years of its execution the High Court oughtto have more cautiously proceeded with the probateproceedings. [Para 35] [847-E-H; 848-A-C]

1.9 In the facts and circumstances of the instant case, theSingle Judge erred in not issuing any citation to BM in theprobate proceedings and without any verification of genuinenessof no objection certificates mechanically granted probate whichwas unsustainable. If it is accepted that in probate proceedingspersons who have been dis–inherited in the Will on mere noobjection certificates by them without either being called byprobate court to appear and certify their no objections or to fileany pleading will lead to unsatisfactory result and may causeprejudice to persons who were not aware of the proceedings andare yet claimed to have submitted no objections. Even thoughSingle Judge had discretion to issue citation or not but in thefacts of the instant case a citation ought to have been issued inexercise of discretion conferred under Section 283 of theSuccession Act and the probate granted without issuance of suchcitation in the facts of the instant case deserves to be revokedand the Single Judge and the Division Bench committed errorin rejecting the application for revocation. [Para 36] [848-D-G]

1.10 It was submitted that in view of probate proceedingsas well as adverse consequences on the appellant with regardto 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 theimpugned judgments has only dealt with the proceedings initiatedby the appellant for revocation of probate. The said proceedingsneed to be considered only insofar as related to application filedby the appellant for revocation of probate. The order passed bythe Single Judge as well as Division Bench of the High Courtis set aside and the application for revocation of probate isallowed and the probate is revoked. The PLA application isrevived before the Single Judge of the High Court which maybe considered and decided in accordance with law. [Para 39, 40][849-E-F]

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AJyotsana Rajgarhia v. Dipak Kumar Himatsingka(2002) ILR 2 Cal 402;Kamona Soondury Dassee v.Hurro Lall Shaha (1882) ILR 8 Cal 570;ShyamaCharan Baisya v. Prafull Sundari GuptaAIR 1916 Cal623;Harimati Debi and another v. Anath Nath RoyChoudhuryAIR 1939 Cal 535 – referred to.B

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8455of 2019.

From the Judgment and Order dated 13.04.2017 of the HighCourt at Calcutta in APO No. 94 of 2016 with PLA No. 90 of 1982D

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,EPankaj 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 judgmentFdated 13.04.2017 of Calcutta High Court dismissing the appeal filed bythe appellant against the judgment and order of learned Single Judgedated 24.08.2015 rejecting the application filed by the appellant forrevocation of probate dated 04.06.1982 in relation to Will of one SurjanSingh Randhawa.

2. Brief facts necessary to be noticed for deciding this appeal Gare:

One, Surjan Singh Randhawa had purchased immovable propertywhich was subsequently numbered as 5/1A Belvedere Road, Kolkataalong with his brother, Bachittar Singh Randhawa, in the names of theirrespective wives, Smt. Harnam Kaur Randhawa and Smt. Celia MaryHRandhawa. Surjan Singh Randhawa had two daughters, namely, Smt.

Gian Hanspal and Smt. Beena Kumari Mehra. On 15.06.1961, SurjanSingh Randhawa executed a Will bequeathing the above immovableproperty to his eldest daughter, Smt. Gian Hanspal. Surjan SinghRandhawa died on 28.11.1962. Registered gift deed dated 25.03.1964was executed by Smt. Harnam Kaur Randhawa in favour of Smt. GianHanspal with regard to above property numbered as 5/1C BelvedereRoad, Kolkata on 27.05.1982. Bachittar Singh Randhawa, brother oflate Surjan Singh Randhawa filed a probate petition before the CalcuttaHigh Court seeking grant of probate in relation to the Will dated15.06.1961. Along with probate petition three no objection certificateswere attached i.e. certificates of Smt. Gian Hanspal, Smt. Harnam KaurRandhawa and Smt. Beena Kumari Mehra. Calcutta High Court videits order dated 04.06.1982 allowed the application and granted probatein favour of Bachittar Singh Randhawa.

3. In April, 1984, Smt. Beena Kumari Mehra filed a suit againstSmt. Gian Hanspal for partition of the property including the premises5/1C Belvedere Road, Kolkata. In the suit Smt.Gian Hanspal wasimpleaded as defendant. In the suit Smt. Beena Kumari Mehra claimedthat after the death of Smt. Harnam Kaur Randhawa, the mother ofthe plaintiff, she along with her sister, Smt. Gian Hanspal became entitledto 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 thewritten statement that Smt. Harnam Kaur Randhawa has gifted thepremises 5/1C Belvedere Road, Kolkata by registered Gift Deed dated25.03.1964, the suit was claimed to be barred by time. Smt. GianHanspal died during the pendency of the suit on 24.02.1988 and herheirs were impleaded.

4. Dr. Harbhajan Singh Hanspal, who was substituted in the suitbeing T.S. No.61 of 1984 filed a written statement reiterating the claimon the basis of the registered gift deed dated 25.03.1964. It was furtherpleaded that the plaintiff had notice and knowledge of the Will at leastfrom 29.08.1984 when the copy of the written statement was servedupon 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. On28.06.2010, Rajiv Singh Hanspal, son of Smt. Gian Singh and late Dr.Harbhajan Singh Hanspal with two others sold the premises, 5/1CBelvedere Road, Kolkata in favour of one Rungta Mines Limited.

6. The appellant came to know about the conveyance deed andthrough conveyance deed came to know the probate dated 05.06.1982.

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AThe appellant, daughter of Smt. Beena Kumari Mehra, filed anapplication G.A. No.2441 of 2011 for revocation of the probate grantedon 05.06.1982 impleading respondent Nos.1, 2 and 3 as the legal heirsof Gian Hanspal, respondent No.4, the purchasers of the premises indispute by conveyance deed and respondent Nos.5 and 6 as performarespondents were impleaded. The brothers of the appellant wereBimpleaded as proforma respondents. In the application the case of theappellant was that after coming to know about the conveyance she gotinspected the probate application, records of P.L.A. No.90 of 1982 on19.05.2011 and came to know that on the basis of no objectioncertificate of the appellant’s mother, late Smt. Beena Kumari Mehraprobate was granted. Appellant’s case was that probate was obtainedCupon false representation, without any notice to the appellant’s motherwho was legal heir of the deceased, Surjan Singh Randhawa. It wasfurther pleaded that signatures of the appellant’s mother on the said noobjection certificate were forged signatures as the appellant’s motherwas shown to have signed as Beena Mehra, whereas she used to signDas Beena Kumari Mehra which is apparent from her signatures inPassport, Will and her PAN Card. It was further pleaded that purportedWill dated 15.06.1981 was not the genuine Will and was created afterhis death to deprive her mother of her legal entitlement in the suitproperty as a legal heir of the deceased. The application of the appellantfor revocation of the probate was contested by the respondents. LearnedESingle Judge vide order dated 24.08.2015 rejected the application forrevocation of probate. Learned Single Judge held that the appellantunder Indian Succession Act, 1925 is not entitled to any citation. Themother of the appellant who could have possibly objected to the saidgrant had filed an affidavit for consent. Learned Single Judge furtherheld that moreover, there is an inordinate and inexplicable delay in filingFthe application. The mother of the appellant never objected the grantduring her life time. Application was rejected on these observations.

7. The appeal was filed by the appellant before the DivisionBench against the judgment of the learned Single Judge dated 24.08.2015and which appeal also came to be dismissed by the Division Bench byGorder dated 13.04.2017 impugned in the present appeal. The DivisionBench held that the trial court appears to have considered the matterin its proper perspective and the relevant discretion exercised in rejectingthe petition for revocation does not appear to be perverse.

8. We have heard Shri Siddharth Luthra, learned senior counsel,Happearing for the appellant and Shri Jayant Bhushan, learned senior counsel, appearing for respondent Nos.1, 2 and 3. We have also heardShri Jishnu Saha, learned senior counsel appearing for respondent No.4.

9. Shri Luthra contended that probate was granted on 04.06.1982within a week from filing of the application on 27.05.1982 without issuingany citation to mother of the appellant who was younger daughter ofSurjan Singh Randhawa, a legal heir. No objection certificate which wasappended with the probate application alleged to have been signed byBeena Kumari was a forged no objection certificate. Beena Kumari,the mother of the appellant used to sign as Beena Kumari Mehra. It isfurther submitted that a suit was filed for partition of the suit propertyby Beena Kumari in April, 1984 in which suit written statement wasfiled by Smt. Gian Hanspal where there was no reference to probatedated 04.06.1982. The claim of the suit premises was on the basis ofthe gift deed dated 25.03.1964 executed by Smt. Harnam KaurRandhawa in favour of Smt. Gian Hanspal. It is submitted that hadBeena Kumari given consent in the probate proceedings there was noquestion of her filing suit for partition. The factum of filing of suit forpartition by appellant’s mother clearly indicates that neither she has filedno objection certificate nor she was aware of such proceedings. It issubmitted that the application filed by the appellant who is daughter ofSmt. Beena Kumari Mehra was fully covered under the grounds forrevocation under Section 263. The proceeding for obtaining the grantof probate was fraudulent proceeding which ought to have been setaside by the High Court. It is submitted that for grant of probate it isnecessary to issue a citation to legal heirs and no citation having beenissued in the present case the entire proceeding deserved to be set aside.

10. Shri Siddharth Luthra has also referred to Chapter XXXVof the Rules of the High Court at Calcutta (Original Side), 1914(hereinafter referred to as “High Court Rules”) dealing with theTestamentary and Intestate Jurisdiction. Shri Luthra submits that Rulescontemplate issuance of citation.

11. Shri Jayant Bhushan, learned senior counsel, appearing forrespondent Nos.1,2 and 3 submits that for grant of probate it is notmandatory to issue a citation. He submits that use of word ‘may’ inSection 283 of Indian Succession Act, 1925 clearly indicates that it isin the discretion of the District Judge to issue or not to issue citation.Mere non-issuance of citation does not lead to any illegality. Referringto Rule 9 of Chapter 35 of the Rules of the High Court at Calcutta(Original Side), 1914, Shri Jayant Bhushan submits that issuance ofcitation is contemplated for letters of Administration unless such person A

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Asignifies consent, which Rules also provide for grant of probate. Hesubmits that there being no objection by Smt. Beena Kumari Mehrathere was no occasion of issuance of any citation as well and there isno illegality found in the above probate.

12. He further submits that probate proceedings were initiatedby Bachittar Singh Randhawa, brother of deceased. He further submitsBthat the suit for partition filed in April, 1984 was dismissed for non-prosecution and the matter was not further carried by Smt. BeenaKumari Mehra, it is clear that she never wanted to prosecute the matterany further. After the death of Smt. Beena Kumari Mehra it is not opento the appellant to file an application for revocation of probate after 30Cyears of grant when both Smt. Beena Kumari Mehra and Smt. GianHanspal are dead. He further submits that in view of the dismissal ofsuit for partition any claim for possession of the suit premises is barredand no useful purpose shall be served in exercising jurisdiction underArticle 136 in the facts of the present case. Mother’s suit for partitionhaving been dismissed for non-prosecution, suit by daughter is clearlyDbarred.

13. Learned counsel appearing for respondent No.4 submits thatrespondent No.4 is a bona fide purchaser for value who purchased theproperty on the strength of probate granted in favour of the vendors.He submits that the rights of respondent No.4 need to be protectedEand it cannot suffer due to fight between the appellant and respondentNo.1,2 and 3. He further submits that in any view of the matter therevocation of probate shall operate prospectively not affecting any ofthe rights of respondent No.4.

14. Learned counsel for the parties have also referred to andrelied on some judgments which we shall notice hereinafter.F

15. We have considered the submissions of the learned counselof the parties and perused the material on record.

16. The main issue needs to be considered and answered in theappeal is as to whether sufficient grounds were made out in theapplication for revocation of probate filed by the appellant and the HighGCourt committed error in rejecting the application as well as dismissingthe appeal.

17. There is no dispute regarding relationship of the parties. Theappellant is a daughter of Smt. Beena Kumari Mehra who was theyoungest daughter of Surjan Singh Randhawa, the deceased whose WillHwas probated by the High Court. Respondent Nos.1,2 and 3 are legal heirs of eldest daughter of deceased Surjan Singh Randhawa, Smt. GianHanspal.

18. Both the learned Single Judge and the High Court in rejectingthe application filed by the appellant for revocation had observed thatthere was inordinate delay in filing the application. The probate of theWill was granted on 04.06.1982 and the application for revocation ofprobate was filed by the appellant with affidavit which is dated27.07.2011. From the conveyance deed she claimed to know about thecase being No. PLA No.90 of 1982 where the High Court grantedprobate of the Will of 04.06.1982. In paragraph 15 of the applicationthe details of coming to know about the probate proceedings have beenmentioned which are relevant to be reproduced:

“15.After coming to know of the said facts your petitionerinstructed her advocate on record to Institute suitable legalproceedings for cancellation of the said Indenture. However, shewas advised that before instituting the legal proceedings it wasnecessary to take inspection of proceedings in which probate tothe purported last Will of the said deceased was granted toascertain whether the petitioner’s mother had consented to grantof the said probate and whether the Will of the said deceasedwas genuine. As advised your petitioner come down to Kolkataand took inspection of the records of PLA No.90 of 1982 on19.5.2011. From the records of the said PLA it appears that thesame was filed on 27.5.1982 and that a purported no objectioncertificate of your petitioner’s mother notarised on 19.4.1982upon identification by one Dilip Kumar Basu said to be practicingas Advocate in the Learned Chief Metropolitan Magistrate’sCourt, was filed in order to show as if your petitioner’s motherhad given no objection to grant of probate of the said Will. Yourpetitioner also inspected the said no objection certificate whichyour petitioner’s mother is alleged to have signed as “BeenaMehra”. The said signature is not of your petitioner’s mother.Your petitioner’s mother always signed as “Beena KumariMehra”. The copies of PAN Card and Passport of your motherissued in July 1982 both bearing her genuine signatures areannexed thereto and collectively marked Annexure “E”. Prior toher death on 5.5.2008 your petitioner’s mother had made her lastWill dated 30[th] June 2005 which was registered. The said Willalso bears her genuine signatures. A copy of the said Will isannexed hereto and included in Annexure “E”. The handwriting A

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Aunder which the said words “Beena Mehra” have been writtenis not of your petitioner’s mother. From the records of the saidPLA it further appears that purported no objections of the saidHarnam Kaur Randhawa and Gian Hanspal also notarised by thesame Notary in April 1982 were filed. Your petitioner’s advocatehas obtained, a certified copy of the application in said PLA aBcopy whereof is annexed hereto and marked Annexure “F”.”19. In the application also details of Suit No.61 of 1984 filed byBeena Kumari Mehra, mother of the appellant, have been mentionedwherein written statement was filed by Smt. Gian Hanspal. The filingof suit for partition by Smt. Beena Kumari Mehra is not denied norCfiling of written statement by Smt. Gian Hanspal is denied. The copyof the plaint of Suit No.61 of 1984 has been brought on record asAnnexure ‘P-4’. It is indicated that the appellant’s mother claimed thatafter 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 inthe property. There was no reference of probate dated 04.06.1982 orDno objection given by Beena Mehra in the written statement filed bySmt.Gian Hanspal, the defendant No.1, although in paragraph 1 thereis mention of registered gift given by Smt.Harnam Kaur Randhawa infavour of the Smt. Gian Hanspal which is to the following effect:

“1.The allegations of paragraph 1 of the plaint are not correct.EMrs. Harnam Kaur Randhawa long before her death made a giftof the house and premises No.5/1C Belvedere Road by aregistered instrument dated 25.03.1960. After that defendant hasbeen the sole and absolute owner of the said premises. Thedefendant having been in possession of the said property from1964 March to date on the basis of and on a claim of title, theFplaintiff’s claim of succession as an heir of the mother is nottenable in law and fact.”

20. But there was no mention in the entire written statementabout the probate dated 04.06.1982. The pleadings in the aboveproceedings clearly indicate that neither there was knowledge of anyprobate proceedings nor even claim of probate proceedings was takenGby Smt. Gian Hanspal in the written statement which was filed in theyear 1984. The suit filed by Smt. Beena Kumari Mehra got dismissedin default on 26.03.1986 and an application for restoration of the suitwas also dismissed for default on 19.08.2006. Smt. Beena Kumari Mehradied on 05.05.2008. When the case was set by the appellant in theHapplication for revocation that she came to know about the probate proceedings only through conveyance deed executed by respondentNos.1,2 and 3 in favour of respondent No.4 dated 28.06.2010 and shegot inspection of the records of PLA No.90 of 1982 on 19.05.2011 andcame to know about the probate proceedings and alleged no objectionsby her mother, Smt. Beena Kumari Mehra. Without adverting to thesefacts, the High Court could not have jumped on the conclusion that thereis inordinate delay in filing the revocation application. Neither there isanything brought on record by respondent Nos.1, 2 and 3 to indicatethat the appellant or her mother had knowledge of probate proceedingson any prior date nor the High Court has returned any finding that theappellant had knowledge of probate proceedings and she is guilty offiling an application with delay. There being no finding of the CalcuttaHigh Court that on any earlier point of time the appellant had knowledgeof the probate proceedings, the observation that the application havingbeen filed with inordinate delay and deserved to be rejected cannot beapproved.

21. We, thus, are of the view that in the facts and circumstancesof the present case no delay can be imputed on the appellant in filingapplication for revocation of probate when after getting inspection ofthe PLA records on 19.05.2011 she immediately filed the applicationfor revocation of the probate in July, 2011 itself. The observation ofthe High Court that there was inordinate delay is unsustainable.

22. Now, we come to the submission that as to whether issuanceof citation to the legal heir is contemplated according to the provisionsof the Indian Succession Act, 1925 as well as the High Court Rules.Chapter III of the Succession Act deals with alteration and revocationof grants. Section 263 provides for revocation or annulment for justcause which is to the following effect:

“263. Revocation or annulment for just cause.-The grant ofprobate or letters of administration may be revoked or annulledfor just cause.

Explanation.-

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Illustrations

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(ii) The grant was made without citing parties who ought to havebeen cited.

(iii) The will of which probate was obtained was forged orrevoked.

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23. Chapter IV of the Succession Act contains a heading “OFTHE PRACTICE IN GRANTING AND REVOKING PROBATESAND LETTERS OF ADMINISTRATION”. Section 268 of the Actprovides that proceedings of the Court of the District Judge in relationto the granting of probate and letters of administration shall, save asBhereinafter otherwise provided; be regulated, so far as the circumstancesof the case permit, by the Code of Civil Procedure, 1908.

24. Section 276 deals with petition for probate. Section 283 dealswith the powers of District Judge. Section 283 is as follows:

“283. Powers of District Judge.-(1) In all cases the DistrictCJudge 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 orthe right of the petitioner to the letters of administration, asthe case may be;D

(c) issue citations calling upon all persons claiming to have anyinterest in the estate of the deceased to come and see theproceedings before the grant of probate or letters ofadministration.

(2) The citation shall be fixed up in some conspicuous part ofEthe court-house, and also in the office of the Collector of thedistrict and otherwise published or made known in such manneras the Judge or District Delegate issuing the same may direct.

(3) Where any portion of the assets has been stated by thepetitioner to be situate within the jurisdiction of a District JudgeFin another State, the District Judge issuing the same shall causea 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 acitation issued by himself, and shall certify such publication tothe District Judge who issued the citation.”

G25. We may revert back to the proceedings which wereundertaken in the present case. The Will of Surjan Singh Randhawawhich has been probated is unregistered Will dated 15.06.1961. For theprobate of the Will the application was filed by the executor on27.05.1982 and the Will was probated on 04.06.1982. It is admitted caseof the parties that no citation was issued by the learned Single JudgeHto any of the legal heirs of deceased. In the present case counter- affidavit has been filed by respondent Nos.1,2 and 3 where they havetaken a specific case that citation was not required to be issued. In theprobate proceedings since Smt. Beena Kumari Mehra consented togrant a probate, in paragraph 3(y) of the counter-affidavit following hasbeen stated:

“3(y)The said Smt. Harnam Kaur Randhawa, and Gian Hanspalcame to know about the Will in the year 1981. Immediatelythereafter, the said Smt. Harnam Kaur Randhawa took steps forobtaining the probate of the Will. Since Beena Kumari Mehraconsented to the grant of probate, there was no occasion to serveany citation on her. Under Indian Succession Act, citation isserved only upon dissenting heirs of the testator.”

26. Shri Jayant Bhushan, learned senior counsel, appearing forthe respondent Nos.1,2 and 3 has submitted that it was not mandatoryfor District Judge to issue citation where no objection certificate/consenthas been filed by the legal heirs of the deceased. Section 283 asextracted above deals with the power of District Judge. In Section283(1) the word ‘may’ has been used which as submitted by the learnedcounsel for the respondents gives discretion to District Judge to issuecitation or not. The power given to the District Judge under Section283 governs both petition for probate which is provided in Section 276and petition for letters of administration as provided in Section 278. TheCalcutta High Court has framed Rules, namely, Rules of the High Courtat Calcutta (Original Side), 1914, Chapter XXXV of which relates toTestamentary and Intestate Jurisdiction. Rules 5A, 9 and 12 of theRules which are relevant are as follows:

“5A. In all applications for probate or for letters of administrationwith the will annexed the petition shall state the names of themembers of the family or other relatives upon whom the estatewould have devolved in case of an intestacy together with theirpresent place of residence.

9. Citation to rightful parties. - On an application for lettersof administration, unless otherwise ordered, a citation shall issueto all persons having a right to take the grant prior or equal tothat of the applicant, unless such persons have signified theirconsent to the application.

12. Direction in citation to show cause on a certain day. -All citations shall, unless otherwise ordered, direct the personscited to show cause on the fourth day from the day of service A

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Awhere the parties to be cited reside within the town of Calcutta,or on such day certain as the Judge shall direct where they resideoutside Calcutta; and, where they cannot be served in the mannerprovided for service of process, may be served by the insertionas an advertisement in such local newspapers as may bedirected, of a Notice in Form No. 5.”

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27. Rule 5A provides that in all the applications for probate orfor letters of administration with the Will annexed the petition shall statethe names of the members of the family or other relatives upon whomthe estate would have devolved in case of an intestacy together withtheir present place of residence. Rule 9 deals with citation to rightfulCparties which requires issue of citation or an application of letters ofadministration unless such persons have signified their consent to theapplication. Rule 9 begins with the words “on an application for lettersof administration”. Had Rule making authority wanted to Rule 9 to applyto probate also they ought to have used both the phrases probate orletters of administration. Rule making authority wherever intended toDrefer 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 ofadministration” have been used whereas Rule 7 uses the expressionletters of administration. Rule 9 uses only the expression letters foradministration. Rule 12 deals with direction in citation to show causeEon a certain day. Rule 12 does not refer to either probate or letters ofadministration and thus, is equally applicable to both the expressions.The applicability of Rule 12 with regard to both letters of administrationand probate which is clear from Form V which uses the expression:

“Petition for probate_________________

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Letters of Administration”

28. Learned counsel for the respondents has submitted that Rule9 which provides that in case where persons have signified their consent,no citation needs to be issued also applies to the case of probate. Theacceptance of the above argument shall be permitting addition of a wordG“probate” in Rule 9 whereas Rule 9 only uses expression “letters ofadministration”.

29. The Calcutta High Court has already taken the view that Rule9 of the High Court Rules, Chapter XXXV is applicable only in caseof grant of letters of administration and not applicable to the grant ofHprobate. In Jyotsana Rajgarhia vs. Dipak Kumar Himatsingka,

(2002) ILR 2 Cal 402, the High Court had occasion to consider acase where revocation of a probate was asked for. In the above casealso the person seeking for revocation for grant of a probate was claimedto have consented to such grant and it was contended that since theparty has consented for grant of probate it was not entitled for issuanceof any citation. In paragraphs 1 and 2 of the judgment facts of the caseare noted which are to the following effect:

“1. This is an application for revocation of the probate grantedby this Court dated February 10, 1987 in No. 17 of 1987 in theGoods of Smt. Usha Devi Himatsingka and further recalling theorder dated January 21, 1987 granting probate. The probate wasgranted without any contest admittedly. The Petitioner and theRespondent No. 2, viz., Anita Fetehpuria are two sisters. TheRespondent No. 2 is supporting the Petitioner and also askingfor revocation of grant of probate.

2. The short case of the Petitioner is that the probate wasobtained fraudulently and without serving any citation and/ornotice of filing of such application. Consent which was recordedat the time of grant of probate was fraudulent and no lawyerwas engaged either on behalf of the Petitioner or on behalf ofthe Respondent No. 2 to give consent. She had no knowledgeof passing of the impugned order of granting probate until May1999 when a letter was communicated by M/ s. Sinha and Co.together with copies of the application on which probate wasgranted to the last Will and testament of her mother datedSeptember 17, 1981. She has also stated that she never engagedany. lawyer nor executed any Vakalatnama in favour of Mr. PulakLahiri or any other person. The said Vakalatnama allegedlyexecuted in favour of Pulak Lahiri is forged one. As such PulakLahiri did not have any authority either to appear or give consenton behalf of the Petitioner to grant probate.”

30. On service of citation it was contended before the High Courtthat in view of Rule 9 service of citation was not necessary whichargument was repelled by the High Court in the following words:

“36………Moreover it is noticed that grant is also defective asno citation either special; or general was served upon theapplicant under Section 283(1)C and (2) of Indian SuccessionAct 1925. It is contended by Mr. A.K. Mitra that, since consentwas signified by the applicant under f. 9 of Chapter XXXV of A

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Athe Original Side Rule, service of citation was not necessary. Iam unable to accept this contention, as the above Rule isapplicable in case of grant of Letters of Administration, notprobate.”

31. A plain reading of Section 283 makes it clear that by the useBof word ‘may’ a discretion has been conferred on the District Judge toissue citations calling upon all persons claiming to have any interest inthe estate of the deceased. Although, it is true that there is discretionvested to issue citation or not but such discretion has to be exercisedwith proper care. The Calcutta High Court in Kamona SoonduryDassee v. Hurro Lall Shaha, (1882) ILR 8 Cal 570, had occasionCto consider pari materia provision of Section 250 of the Succession Act,1865 where discretion was vested in the District Judge to issue citationor not. Calcutta High Court had observed in the said case that whenWill is propounded which alters the devolution of property, a specialcitation should be directed. Further the discretion vested with the DistrictJudge has to be exercised with proper care. Following observation wasDmade by the Calcutta High Court:

“……Section 250 of the Succession Act vests the District Judgewith full discretion, which should be exercised with proper care:and when a will is propounded which alters the devolution ofproperty, a special citation should be directed to be served uponEthe person or persons who is or are immediately affected by thewill. ……”

32. The Calcutta High Court in another judgment in ShyamaCharan Baisya vs. Prafull Sundari Gupta, AIR 1916 Cal 623, ina case where provisions of Probate and Administration Act, 1881 camefor consideration, held that when a Will is propounded which alters theFdevolution of property, the District Judge should, in the exercise of thediscretion, should direct the special citation. Following was held in thejudgment:

“……as observed in the case of Nistariny v. Brahmomyi,(1891) 18 Cal. 45, when a will is propounded which alters theGdevolution of property, the District Judge should, in the exerciseof the discretion vested in him by S.69 of the Probate Act as tothe mode of issuing citations, direct special citations to personswhose rights are immediately affected by the will. ……”

33. In the present case although there cannot be any dispute toHthe legal proposition that discretion is vested under Section 283 to issue citation or not but such discretion has to be judicially exercised withproper care adverting to the facts of each case.

34. In the case before us the Will was dated 15.06.1961, probateapplication was filed on 27.05.1982, that is almost after 20 years. Theapplication for probating a Will which is claimed to have been executed20 years before, learned Single Judge ought to have been cautious inproceeding further with the matter. We notice that along with theapplication for probating the Will which has been brought on the recordas Annexure P-2, the propounder of probate has verified the applicationalong with a consent certificate which was annexed by Smt. HarnamKaur Randhawa wife of Surjan Singh Randhawa, Smt. Gian Hanspalwife of Dr. Harbhajan Hanspal daughter of Surjan Singh Randhawaand no objection of Smt. Beena Mehra wife of V.K. Mehra anotherdaughter of Surjan Singh Randhawa. Both Smt. Harnam Kaur and Smt.Gian Hanspal were beneficiary of the Will their no objection to the Willhad no adverse effect. The no objection given by Smt. Beena Mehrawas material since Beena Mehra being second daughter of deceasedwas being dis-inherited from the suit property. Photocopy of the noobjection filed by Smt. Beena Mehra has been brought on record alongwith the rejoinder-affidavit,a perusal of which appears that all thethree no objections were notarised by the same Notary, an Advocate,Shri Dilip Kumar Basu. It is not even claimed that Shri D.K. Basu whoidentified Beena Mehra was engaged as counsel by Beena Mehra byexecuting any Vakalatnama.

35. The factum of filing of suit for partition by Smt. BeenaKumari Mehra in the year 1984 where there is neither any referenceof the Will of Surjan Singh Randhawa nor reference of probateproceedings and further in the written statement filed in the said suitby Smt. Gian Hanspal, elder sister of Smt.Beena Kumari Mehra thereis no mention of Will of Surjan Singh Randhawa or probate proceedingsto base her right and to the contrary rights were claimed only on thebasis of registered deed of gift dated 25.03.1964 executed by Smt.Harnam Kaur Randhawa in favour of Smt. Gian Hanspal, which casta doubt on the alleged consent given by Smt. Beena Kumari Mehra inthe probate proceedings. Had Smt.Beena Kumari Mehra given consentin probate proceedings in the year 1982, it ought to have been reflectedin the suit or in the written statement filed by Smt. Gian Hanspal. Theconduct of Smt.Beena Kumari Mehra in filing suit in 1984 claimingpartition and no reference of probate in the said proceedings clearlyindicates that Smt.Beena Kumari Mehra was not even aware of the A

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Aprobate proceedings when the suit was filed. In the written statementfiled by Smt. Gian Hanspal, who was the beneficiary of the Will aswell as the probate proceedings which there was no mention of probateproceedings which makes us wonder as to why the probate proceedingswere not mentioned in the written statement. and if Smt. Beena KumariMehra has signed as alleged why she was not confronted with theBprobate proceedings in the written statement. No mention of probateproceedings clearly indicates that neither Smt. Beena Kumari Mehrawas aware of probate proceedings nor she was confronted with suchproceedings. In the said proceedings, when a Will is sought to beprobated after 20 years of its execution the High Court ought to havemore cautiously proceeded with the probate proceedings. The CalcuttaCHigh Court in Harimati Debi and another vs. Anath Nath RoyChoudhury, AIR 1939 Cal 535, in concurring judgment of LatifurRahman, J. held that where an unregistered Will is sought to bepropounded after the lapse of more than 20 years it is required that allmanner of doubt and suspicion is removed.D36. We are of the view that in the facts and circumstances of

36. We are of the view that in the facts and circumstances ofthe present case, learned Single Judge erred in not issuing any citationto Smt. Beena Mehra in the probate proceedings and without anyverification of genuineness of no objection certificates mechanicallygranted probate which was unsustainable. If it is accepted that in probateproceedings persons who have been dis-inherited in the Will on mereEno objection certificates by them without either being called by probatecourt to appear and certify their no objections or to file any pleadingwill lead to unsatisfactory result and may cause prejudice to personswho were not aware of the proceedings and are yet claimed to havesubmitted no objections. We, thus, conclude that even though learnedFSingle Judge had discretion to issue citation or not but in the facts ofthe present case a citation ought to have been issued in exercise ofdiscretion conferred under Section 283 of the Succession Act and theprobate granted without issuance of such citation in the facts of thepresent case deserves to be revoked and learned Single Judge and theDivision Bench committed error in rejecting the application for revocationGfiled by the appellant.

37. Learned senior counsel appearing for respondent No.4 whois the purchaser of the property from respondent Nos.1,2 and 3 byconveyance deed dated 28.06.2010 has contended that the rights ofrespondent No.4 be protected since he is a bona fide purchaser withHvalue. 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 advertto the submission of the learned counsel for respondent No.4. In viewof our conclusion as noted above that revocation application filed bythe appellant deserves to be allowed, the order dated 04.06.1982 grantingprobate in PLA No.90 of 1982 deserves to be set aside and the probateproceedings shall stand revived before the learned Single Judge and itis yet to be considered by the learned Single Judge as to what ordersare to be passed in the proceedings in PLA No.90 of 1982 and all thecontentions which are sought to be raised by respondent No.4 are tobe adverted in the above proceedings.

38. The submission raised by respondent No.4 needs noconsideration in these proceedings which were initiated by the appellantonly for revocation of probate. Learned counsel for respondent Nos.1,2 and 3 has further submitted that the appellant had already filed a suitbeing Title Suit No.59/2013 in the Court of First Civil Judge(SeniorDivision) at Alipore where a declaration is claimed that the indentureof conveyance dated 28.06.2010 executed and registered in favour ofrespondent No.4 is void, illegal and invalid.

39. Shri Jayant Bhushan submits that in view of probateproceedings as well as adverse consequences on the appellant withregard to the dismissal of suit for partition filed by the mother for non-prosecution, this Court may not interfere with the proceedings/orderpassed by the Calcutta High Court. The Calcutta High Court in theimpugned judgments has only dealt with the proceedings initiated bythe appellant for revocation of probate, we need to consider the saidproceedings only insofar as related to application filed by the appellantfor revocation of probate dated 04.06.1982. We allow this appeal, setaside orders passed by the learned Single Judge as well as DivisionBench of the Calcutta High Court, application for revocation of probateis allowed, probate dated 04.06.1982 is revoked. The application PLANo.90 of 1982 is revived before the learned Single Judge of the HighCourt which may be considered and decided in accordance with law.

40. The case being old one, we request the High Court toexpeditiously dispose of the proceedings. Parties shall bear their owncosts.

Nidhi Jain

Appeal allowed.

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