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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

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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.