Manju Puri Vs Rajiv Singh Hanspal

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8455 OF 2019

(ARISING OUT OF SLP(C)NO.20452 OF 2017

MANJU PURI ... APPELLANT

VERSUS

RAJIV SINGH HANSPAL & ORS. ... RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

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

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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. 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.

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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

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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. 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

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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

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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.

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8. We have heard Shri Siddharth Luthra, learned senior

counsel, appearing for the appellant and Shri Jayant

Bhushan, learned senior 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

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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

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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 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

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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

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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

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Singh Randhawa, the deceased whose Will was probated

by the High Court. Respondent Nos.1,2 and 3 are legal

heirs of eldest daughter of deceased Surjan Singh

Randhawa, Smt. Gian 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

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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 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

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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:

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“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

proceedings only through conveyance deed executed by

respondent Nos.1,2 and 3 in favour of respondent No.4

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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

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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) ……… ……… ………

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(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.

……… ……… ………”

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;

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(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

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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-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

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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.

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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 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.

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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

P a g e 24 | 35

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, (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

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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

P a g e 26 | 35

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 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

P a g e 27 | 35

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. ……”

P a g e 28 | 35

33. In the present case although there cannot be any

dispute to the legal proposition that discretion is

vested under Section 283 to issue citation or not but

such discretion has to be judicially exercised with

proper care adverting to the facts of each 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

P a g e 29 | 35

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

P a g e 30 | 35

to the contrary rights were claimed only on the basis

of registered deed of gift dated 25.03.1964 executed

by Smt. Harnam Kaur Randhawa in favour of Smt. Gian

Hanspal, which cast a doubt on the alleged consent

given by Smt. Beena Kumari Mehra in the probate

proceedings. Had Smt.Beena Kumari Mehra given consent

in probate proceedings in the year 1982, it ought to

have been reflected in the suit or in the written

statement filed by Smt. Gian Hanspal. The conduct of

Smt.Beena Kumari Mehra in filing suit in 1984 claiming

partition and no reference of probate in the said

proceedings clearly indicates that Smt.Beena Kumari

Mehra was not even aware of the probate proceedings

when the suit was filed. In the written statement filed

by Smt. Gian Hanspal, who was the beneficiary of the

Will as well as the probate proceedings which there was

no mention of probate proceedings which makes us wonder

as to why the probate proceedings were not mentioned

in the written statement. and if Smt. Beena Kumari

Mehra has signed as alleged why she was not confronted

with the probate proceedings in the written statement.

No mention of probate proceedings clearly indicates

P a g e 31 | 35

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

P a g e 32 | 35

called by probate court to appear and certify their no

objections or to file any pleading will lead to

unsatisfactory result and may cause prejudice to

persons who were not aware of the proceedings and are

yet claimed to have submitted no objections. We, thus,

conclude that even though learned Single Judge had

discretion to issue citation or not but in the facts

of the present case a citation ought to have been issued

in exercise of discretion conferred under Section 283

of the Succession Act and the probate granted without

issuance of such citation in the facts of the present

case deserves to be revoked and learned Single Judge

and the Division Bench committed error in rejecting the

application for revocation filed by the appellant.

37. Learned senior counsel appearing for respondent

No.4 who is the purchaser of the property from

respondent Nos.1,2 and 3 by conveyance deed dated

28.06.2010 has contended that the rights of respondent

No.4 be protected since he is a bona fide purchaser

with value. Although, the respondent No.4 was impleaded

as one of the parties, we are of the view that at this

P a g e 33 | 35

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

P a g e 34 | 35

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.

P a g e 35 | 35

40. The case being old one, we request the High Court

to expeditiously dispose of the proceedings. Parties

shall bear their own costs.

......................J.

( ASHOK BHUSHAN )

......................J.

( NAVIN SINHA )

New Delhi,

November 14, 2019.

MANJU PURI Vs RAJIV SINGH HANSPAL

MANJU PURI Vs RAJIV SINGH HANSPAL