R.N. Gupta And Ors. vs State And Ors.
1995 Latest Caselaw 474 Del

JUDGMENT

S.K. Mahajan, J.

(1) This order will dispose of the application filed by Mrs.Pramila Gupta under Section 263 of Indian Succession Act for revocation of the grant of probate of the Will dated 21st February, 1985 executed by the deceased on the ground that the probate had been obtained by playing fraud on the Court.

(2) The facts in short are that Smt.Shanti Devi, widow of late Ram Kishan Das died on 19th March, 1986. Petition for probate was made by Shri R.N. Gupta and Smt.Savitri Devi Gupta, son-in-law and daughter of the deceased. In the application for the grant of the probate of the Will dated 21st February, 1985 executed by the deceased Smt.Shanti Devi, Along with the Will the list of near relatives of the deceased was also annexed. The names of the near relatives in the said list were Smt.Savitri Devi Gupta - petitioner No.2, Shri Sooraj Narain Gupta - husband of the predeceased daughter of the deceased. Proclamation of the petition was made in the newspaper and notice was also issued upon to respondent No.2. There was no opposition to the grant of probate and after evidence had been recorded, the application for grant of probate was allowed and probate granted in favor of the petitioners. The order for grant of the probate was passed on November 26, 1986.

(3) The present application was filed by one Mrs.Pramila Gupta, wife of Mr.Ram Babu Gupta. It is alleged that probate had been obtained by playing fraud upon the Court and the petitioner had mis-represented the facts and did not furnish material particulars required to be furnished Along with the petition. According to the application, the facts mis-represented fraud played and the relevant material withheld was as under: -

(A)The petitioner did not incorporate the complete amount of assets, property that were left by the deceased;

(B)the petitioner did not include in the list of near relatives, the names and the addresses of the sons, daughter-in-laws and grand children of the deceased;

(C)the petitioner did not include the fact that by a decree dated 4.5 .1960 passed in Civil Suit No.2/60 by the Court of Shri N.C. Dwivedi,I strict Judge, Ujjain, the deceased had bound herself that upon her death all her property including the property to be acquired by her would go in the hands of Mrs.Ram Babu Gupta and her children and Mr Nagesh and her children.

(4) The allegations are that because of non-inclusion of the names of near relatives of the deceased in the petition, the probate granted in favor of the petitioner was liable to be revoked. It has also been alleged that by a decree dated 4th May, 1960. passed by District Judge, Ujjain, the deceased had bound herself that the property . would go in the names of the applicant and her children and Mrs.Nagesh and her children and as such the deceased, according to the applicant, could not execute the Will in question.

(5) Reply to the application had been filed by the petitioner. Besides replying the application on merits, preliminary objections have been taken that the applicant had no locus standi to challenge the grant of probate in respect of the registered Will of the deceased. It is stated that none of the clauses (a) to (e) of Section 263 were applicable to the facts and circumstances of the case nor there was is any just cause for revocation or annulment of the probate granted in favor of the petitioner. On merits it was stated that the applicant was not interested in the proceedings nor any notice was required to be given to him because her husband, who was the natural son of the deceased Smt.Shanti Devi had been adopted by Sh.Shaud Ram (uncle of Sh.Ram Kishan Dasji - husband of the deceased) and on the adoption of the said Ram Babu Gupta in the family of Sh.Shauji Ram, he ceased to be a member of the family of Smt.Shanti Devi and did not have any interest in her state. It is also alleged that Mr.Ram Babu Gupta had also not filed objections in his own name but filed objections as general attorney of his wife, who has no locus standi to maintain this present application.. The application was, therefore, stated to be without any merits.

(6) Thrust of the argument of the applicant is that, in case, fraud is established, the question of locus will not to be looked into. Even otherwise, according to the applicant, the objector being the wife of the natural son of the deceased, was interested in the assets of the deceased and had the locus to file the present petition. It is further stated that in terms of the award, the applicant had been given share in the property and this award was made a rule of Court by the Court of District Judge, Ujjain. The contention is that the petitioner was aware of the said award as has been admitted in the reply dated 12th December, 1988 given to the notice sent on behalf of the applicant. The argument, therefore, is that as applicant had been given share in the property, she had interest therein and, therefore, bad the locus to file the present petition. Smt.Shanti Devi had two sons, namely, Shri Ram Babu Gupta and Shri Nagesh and according to applicant, even assuming that Sh.Ram Babu Gupta bad ceased to have interest in the property on his having been adopted by the family of Sh.Sbauji Ram, Nagesh, in any case, was entitled to be named as one of the relatives in the petition and his name having not been entered in the list of relatives, it was a clear case of mis-representation and fraud and the probate was, in the circumstances, liable to be revoked.

(7) Reliance has been placed upon a Division Bench Judgment of Calcutta High Court reported as Air 1933 Calcutta 74, wherein it has been held that in case names of some of the relatives have been omitted from the list of relatives, the said omission was sufficient to revoke the grant of probate in favor of the person who had propounded the Will. Reliance has also been placed upon Air 1947 Patna 434 holding that any interest, however slight or even the bare possibility of interest, is sufficient to entitle a party to oppose a testamentary paper. Hence, a daughter of the testator, who was a person entitled to succeed under Hindu law, on the death of the testator, was entitled to citation and she was a person who ought to have been cited as a relative in the petition. To the same effect is the judgment reported as .

(8) The argument, therefore, is that the petitioner having not mentioned the names of Ram Babu Gupta as well as Nagesh in the petition for the grant of probate, the probate granted to the petitioner was liable to the revoked. It is submitted by the applicant that nothing further is required to be proved by her on record and the moment it is established that two of the legal heirs whose names were entitled to be mentioned in the petition had not been named therein, the probate was liable to be revoked. The information, according to the applicant, about the legal heirs of the deceased was deliberately withheld by the petitioner from the Court and notices were not consequently issued to those persons because the petitioner wanted to swallow the entire assets left behind by the deceased to the exclusion of the persons who in fact were interested and entitled to the same. According to the applicant, the deceased had bound herself under a Court decree that the entire moveable and immoveable properties shall vest exclusively to the benefit of her two daughters and grand children.

 (9) The probate or the Letters of Administration can be revoked or annulled for the reasons stated in Section 263 of the Indian Succession Act. Section 263 of the Act reads as under : -    THE grant of probate or letters of administration may be revoked or annulled for just cause.   

 EXPLANATION: Just cause shall be deemed to exist where : -   

 A.the proceedings to obtain the grant were defective in substance; or     

 B.the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or   

 C.the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or   

 D.the grant has become useless and inoperative through circumstances;   

 E.the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of chapter Vii of this part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.    

(10) The question for consideration is whether the name of Ram Babu Gupta or his wife Smt.Pramila Gupta was required to be cited and what is the effect of not citing the name of either Ram Babu Gupta or his wife in the list of near relatives in the petition. The revocation or annulment of the probate or Letters of Administration can only be for just cause. As mentioned in illustration 2 to Section 263, just cause shall be deemed to have existed where the grant was made without citing the names of the persons who were entitled to the estate of the deceased on her death. Though Section 276 does not mention as to what particulars are required to be given in the petition, however, it is the duty of the person applying for grant of probate to bring to the notice of the Court as to who are the persons who can claim to be entitled to the assets of the deceased.

(11) To my mind, the persons who are entitled to be cited as near relatives in the petition, are the persons who are otherwise entitled to inherit the assets of the deceased in case he had died intestate. The petitioner in a petition for probate is required to mention the names of all those persons who are entitled to a share in the assets of the deceased, in case, the deceased had died intestate. In this case, it is admitted case of the parties that Ram Babu Gupta, though was the real son of the deceased Smt.Shanti Devi, had been adopted by Shauji Ram (uncle of Shri Ram Krishan Das Khanna - husband of the deceased). In law, on adoption of the said Shri Ram Babu Gupta in the family of Shri Shauji Ram, be ceased to be a member of the family ofSmt.Shanti Devi and consequently, in case, the said Smt.Shanti Devi had died intestate, he was not entitled to any share under the Hindu law in the property left behind by her. Even in the proceedings which have taken place in the Court of District Judge, Ujjain and upon which reliance have been placed by the applicant, it is clearly mentioned that Shri Ram Babu Gupta was the adopted son of Shri Shauji Ram. Sh.Ram Babu Gupta being the adopted son of Shri Shauji Ram, was not entitled to any share in the property of Smt.Shanti Devi, in case, she had died intestate.

(12) Judgment reported as Air 1947 Patna 434 relates to a case where minor daughter of the testator, who was entitled to a share in the property on the death of the testator, having not been mentioned as a relative in the petition, the Court held that it was a defect which would entitle the applicant/daughter of the deceased testator to the revocation of the grant. The case reported as was in respect of a Will executed by one Ganga Bishnu Dey. On his death, he left behind three infant daughters, a brother and a widow. When the brother filed a petition for the grant of probate, as executor of the Will, he did not mention the names of three infant daughters in the petition nor any guardian had been appointed on their behalf. The probate granted in favor of the brother was revoked on an application of one of the daughters of the deceased on the ground that no citation had been issued as far as daughters were concerned. It was in these circumstances, it was held by the Calcutta High Court that where a citation ought to have been issued to the near relatives and the same having been not issued, it was a fit case for revocation of the probate granted earlier by the Court, In it has been held that although Section 276 docs not in so many words require the petitioner for the grant of a probate to state the names of the relatives of the testator, where it is found that the testator had left near relatives, the omission to furnish information about their existence and non-issue of citation on them would be a ground for revocation. This was a case where a Will was propounded by the executor who alleged himself to be the son of the sister of the testator and filed a petition for grant of probate of the said Will. The deceased had left behind three daughters. Petitioner in that case did not mention the names of any of the sisters in the petition nor any citation was issued to them. Ex-parte probate was granted and on an application having been filed by one of the daughters for revocation of the probate, it was held that omission to furnish information about the existence of the near relatives of the deceased and non-issue of citation on them would be a ground for revocation. In all the cases which have been cited at Bar by learned counsel for the applicant, the persons to whom the citation had not been issued, were the persons who were otherwise entitled to the asset of the deceased under Hindu Law or were otherwise entitled to the property of the deceased, in case, be had died intestate. It was in these circumstances that the Courts have rightly held that non-issue of citation on those persons would entitle them to have the grant revoked.

(13) In the present case, Sh.Ram Babu Gupta having been adopted into the family of Sh.Shauji Ram and having ceased to be a member of the family of Smt.Shanti Devi was not entitled to any share in the assets of the deceased and was, therefore, not entitled to a citation to be issued on him. There was no need of his being cited as a near relative of the deceased in the petition.

(14) In a judgment reported as it has been held that the person who had filed an application for revocation of the grant of probate was the step son of the deceased testator and was not entitled to claim a share in the testator's property simultaneously with her real son and as such was not entitled for a citation to be issued to him. I am, therefore,of the opinion that there was no need of citing the name of Sh.Ram Babu Gupta or his wife Smt.Pramila Gupta as near relatives nor was there need of citation issued to them and the probate cannot be revoked on an application filed by them merely on. the ground that their names have not been mentioned in the petition.

(15) The present application for revocation of the grant of probate has been filed by Smt.Pramila Gupta, wife of Sh.Ram Babu Gupta. Smt.Pramila Gupta cannot by any stretch of imagination be said to be a person to whom a citation could be issued. Even assuming, that Sb.Ram Babu Gupta was entitled to a citation to be issued to him, the applicant could not, in any case, be entitled to citation so long as her husband is alive. She is no one of the legal representatives whom to be entitled to the assets of the deceased on her death even after her husband is assumed to be one of such legal representatives. Smt.Pramila Gupta, therefore, in any case, did not have any locus standi to file the petition. It is then contended that the deceased, in any case, had one more . son, namely, Nagesh and, therefore, after his death one of his legal representatives ought to have been mentioned in the petition for probate. There is no application filed on behalf of the .legal representatives of Nagesh for the revocation of the grant of probate in favor of the petitioner and, in my opinion, the petitioner cannot agitate this point on their behalf. It was for the legal representatives of Mr.Nagesh to take appropriate remedy as advised, in case, they are agreed by the grant of probate in favor of the petitioner.

(16) The question as to whether the deceased could make a Will of the property, which are alleged to be the subject-matter of the decree passed by the District Judge, Ujjain, is not a question which can be gone into by the. probate Court. It is well settled that the question of title cannot be gone into by the probate Court and it will be an exercise in futility to go into the question as to whether the deceased could have executed the Will in respect of the property, which are alleged to be the subject-matter of decision by the Court of the District Judge, Ujjain. It will be for the applicants to take appropriate remedy as permissible in Law in respect of the properties alleged to have fallen to their share by virtue of the decision of the District Judge, Ujjain, but the same cannot be made the subject-matter of controversy in the present petition.

(17) In view of the above discussions, there is no merits in the application for revocation of the grant of probate and the same is, accordingly, dismissed. However, in the circumstances of the case, I leave the parties to bear their own costs.