Yuv Rajnarain Gorwaney vs State And Ors.
2005 Latest Caselaw 1557 Del

JUDGMENT

Badar Durrez Ahmed, J.

Page 2299

1. This is an application under Order 1 Rule 10 CPC for impleadment of one Rajiv Sharma s/o late Shri Prakash Chand Sharma. It is the case of the applicant that he is the son of late Shri Prakash Chand Sharma who was the brother of late Shri Gyan Chand Sharma who, in turn, was the husband of the deceased Smt Avinash Pandit who is said to be the executor of the Will dated 13.2.2001 which is the subject matter of these probate proceedings.

2. The learned counsel appearing on behalf of the applicant submitted that the applicant Rajiv Sharma was a necessary and proper party and, therefore, ought to have been cited as a party in the first instance. He submitted that for determining whether a party is necessary or proper in a probate proceedings it should first be assumed that the testator had died intestate and the heir then should be ascertained and all of them, who would, de hors the Will, be heirs according to the personal law of succession, ought to have been imp leaded as parties. This, according to the learned counsel for the applicant, was not done and the consequences of not doing so are so grave that as per Section 263 and particularly reading it with illustration (ii) thereto, it becomes a ground even for revocation of a probate granted. It was pointed out that Smt. Avinash Pandit had no issue. Her husband late Shri Gyan Chand Sharma had pre-deceased her.

3. There is no difficulty in accepting the proposition, that properties which are the subject matter of these probate proceedings were the absolute properties of Smt Avinash Pandit more so in terms of Section 14 of the Hindu Succession Act, 1956. It is to be noted that under Section 15 of the Hindu Succession Act, 1956, the General Rules of Succession in the case of female Hindus are set out. According to Section 15(1)(a), the properties are, firstly, to devolve upon the sons and daughters (including the children of any pre-deceased son of daughter) and the husband. By virtue of Section 15(1)(b) it is secondly to devolve upon the heirs of the husband. The position, therefore, is that when a female Hindu dies intestate if she survived by her son or daughter or husband then her properties first devolve upon them. In this case late Smt Avinash Pandit did not have any children and therefore, firstly, the properties would have devolved upon her husband. However, her husband late Shri Gyan Chand had pre-deceased her. Therefore, Section 15(1)(a) would not apply in the present case and it would be Section 15(1)(b) which would apply which is the second Rule of devolution prescribed under the provision. Accordingly, the properties would have devolved upon the heirs of the Page 2300 husband. Section 16 of the Hindu Succession Act, 1956 provides that the order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestate's property among those heirs shall take place according to the three rules set out therein.

4. Rule 1 prescribes that among the heirs specified in sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously. Other heirs of the late Smt Avinash Pandit include the Objector No. 3 who happens to be her brother and would fall under Section 15(1)(d), that is, heirs of the father of the deceased. Upon a conjoint reading of Sections 15 and 16 and in particular Rule 1 of Section 16 it becomes clear that the heirs specified in Section 15(1)(b) would take to the exclusion of heirs specified in Section 15(1)(d). Therefore, it becomes clear that if a female Hindu left any heirs specified under section 15(1)(b), they would in the fact situation obtaining in the present case be the only heirs if succession was to be intestate. Rule 3 of Section 16 also prescribes that devolution of the property of the intestate on the heirs referred to, inter alia, in clause (b) of sub-section (1) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the husband's and such person had died intestate in respect thereof immediately after the intestate's death. Therefore, it has to be construed, for the purposes of determining the devolution of the properties of Smt Avinash Pandit, that her husband was alive and he took her entire properties under Section 15(1)(a) and that he too, upon taking the entire properties, immediately died intestate. The devolution of his properties would then be governed by Section 8 of the Hindu Succession Act, 1956 which prescribes a General Rule of Succession in the case of males. Essentially, it prescribes that class I heirs specified in the schedule shall take to the exclusion of class II heirs and so on. The said late Shri Gyan Chand Sharma left no class I heirs and the present applicant would fall under serial No. IV of class II being the brother's son. He would, therefore, be an heir under the Hindu Succession Act to the properties left by Smt. Avinash Pandit had she died intestate. This being the case, I am in agreement with the submissions made by the learned counsel for the applicant that the applicant is a necessary and proper party in these proceedings. It is more so because of the Original Side Practice Direction No. 4 relating to testamentary and intestate jurisdiction of this High Court and, in particular, Rule 3 thereof which reads as under:

"In all applications for probate or for letters of administration with the will annexed, the petitioner shall state the names of the members of the family or other relatives upon whom the estate would have devolved in case of any intestacy together with their present place of residence."

Therefore, the Rule clearly prescribes that the applicant ought to have been named in the probate application. That was not done. However, the learned counsel for the petitioner submits that he cannot be faulted on this ground inasmuch as he represents the executor of the Will in question and is an outsider and not a family member. He also submitted that a public notification was carried out in the newspaper as per Rules and that the applicant has come after five years despite being aware of the death of Page 2301 late Smt Avinash Pandit and also being present in the cremation ceremony. Therefore, according to the learned counsel for the petitioner, this application ought not to be entertained. The learned counsel also states that in any event he does not admit the relationship between the applicant and the testator as disclosed by him.

However, considering all these aspects of the matter, I am of the view that when the Rules prescribe and the law lays down a particular procedure, the applicant ought to have been made a party in the present proceedings. Moreover, the non-citing of a necessary party can be a ground for revocation of a probate granted under Section 263 of the Indian Succession Act, 1925. If such an eventuality exists, then delay in approaching the court ought not to come in the way of these probate proceedings because after all what the court has to do is to determine as to whether the Will in question was, in fact, the Will left by Smt Avinash Pandit. In this view of the matter, the application deserves to be allowed. The said Shri Rajiv Sharma is imp leaded as respondent/objector No. 4. The application stands allowed accordingly.

5. The amended memo of parties be filed within two days. However, since the learned counsel for the petitioner has raised an objection with regard to the relationship between the applicant and the testator, I am not foreclosing this issue at this stage insofar as the petitioner is concerned.

6. The learned counsel for the applicant undertakes to disclose the names of other relatives, if any, of Smt. Avinash Pandit who would be her heirs in terms of the Hindu Succession Act with adequate proof thereof within ten days.

7. The learned counsel for the petitioner shall hand over a copy of the paper book to the counsel for the newly imp leaded respondent No. 4 and formal objections be filed within ten days. The newly imp leaded respondent No. 4 shall participate in the cross examination on 2.12.2005 and shall be entitled to cross examine the said Mr R.D. Saxena. The other witness, namely, Smt Grewal, may also be cross examined by the applicant's counsel on the next date i.e. 3.12.2005 at 11.00 a.m. in Chandigarh.

This application stands disposed of.