Smt. Swaran Lata vs Shri P.P. Sharma
2006 Latest Caselaw 2080 Del

JUDGMENT

Reva Khetrapal, J.

1. By this order I propose to decide two applications, being I.A.Nos.10301 & I.A.No.10302/2006. The first application is filed by the petitioner under Order XIV Rule 5 read with Section 151 of the Code of Civil Procedure for re-framing the issues framed by this Court on 4th August, 2006. The second application is filed by the respondent under Section 114 and under Order 47 Rule 1 read with Section 151 of the Code of Civil Procedure for review and recall of order dated 4th August, 2006 praying that the petitioner's application for revocation of the Will in question be disposed of on the basis of the documents on record.

2. On 4th August, 2006, the following issues were framed for consideration on the pleadings of the parties:

I. Whether the petitioner is entitled to the revocation of the grant of letters of administration issued to the respondent by a judgment and order of this Court dated 2.3.2005 in Probate Case No.34/1988 under Section 263 of the Indian Succession Act, 1925 for the reasons set out in the petition?OPP

II. To what relief, if any, is the petitioner entitled? OPP

3. After framing the aforesaid two issues on 4th August, 2006, the case was listed for filing of additional documents, if any, list of witnesses and affidavits by way of evidence on 21st September, 2006. However, before the said date, the aforesaid two applications were filed by the parties.

4. Before adverting to the applications filed by the petitioner and the respondent, it would be apposite to set out succinctly the facts and circumstances which have led to the filing of the aforesaid two applications. The same are as follows:

(i) A probate case being Probate Case No.34/1988 was filed seeking probate of the Will dated 15th June, 1984 of late Shri Sudershan Lal, asserting that the Will was the last legal and valid testament of late Shri Sudershan Lal. The said probate petition was filed by one Shri Prem Prakash, son of the brother of late Shri Sudershan Lal. The petition was opposed by the sisters of the deceased, the deceased having died as a bachelor. The Will in question was a registered Will, registered with the Sub-Registrar as Document No.1975, Vol.No.399 at page 26. Admittedly, however, the said Will was registered on 8th May, 1987, after the death of the testator late Shri Sudershan Lal, who died on 1.2.1987. The sisters of the deceased filed their opposition to the Will relied upon by the petitioner, alleging the said Will to be a fabricated document.

(ii) On 18.09.1995, the following issues were framed in Probate Case No.34/1988 for consideration:

(1) Whether the deceased had executed a valid will on 15.6.1984? OPP

(2) Whether the properties mentioned in the Will are joint Hindu properties? If so, to what effect? OPD

(3) Whether the Will dated 15.6.1984 is a forged and fabricated document and as a result of a conspiracy, as alleged in para-8 of the Preliminary Objections in the written statement? OPD

(4) Whether the petition is not in accordance with Sections 276, 280 and 281 of the Indian Succession Act? If so, to what effect? OPD

(5) Whether the registration of the Will is in accordance with the law? OPD

(6) Whether the schedule of the properties filed along with the petition is not in accordance with the Will? If so, to what effect? OPD

(iii) By a judgment and order dated 2.3.2005, a learned Single Judge of this Court (Hon'ble Mr. Justice Pradeep Nandrajog) decided the aforesaid issues, granting letters of administration to the petitioner with Will annexed. The following significant findings were returned by the Court which are being reproduced hereunder, being pertinent to the decision of the two applications filed by the petitioner and the respondent respectively.

(A) As regards the factum of execution of a valid Will by the testator (Issue No.1 and Issue No.3), the learned Single Judge repelling the objection that the Will was a forged document, held in paragraph 62 of His Lordship's judgment as under:

62. In view of my decision on issues no.1 & 3, I hold that the Will dated 15.6.1984 has not been proved to be a forged document and, accordingly, I dismiss the application filed by the objectors....

(B) As regards Issue no.2, according to the sisters of the deceased, the properties mentioned in the Will were joint Hindu family properties. The testator was the Karta of the said HUF properties. Thus, could not dispose of the coparcenary properties by way of a Will. In this context, learned Single Judge in paragraph 9 of His Lordship's judgment held as follows:

9. I was informed at the bar that the issue of title to the properties bequeathed by the deceased is a subject matter of civil proceedings. The sisters have taken up the stand that the properties belong to the joint Hindu family. This issue would, accordingly, be decided in the civil suit....

(C) As regards the objection taken by the objectors that the petition did not conform to the requirements of Sections 276, 280 and 281 of the Indian Succession Act (Issue no.4), it was decided in favor of the petitioner and against the respondent.

(D) The next objection raised by the objectors was with regard to the registration of the Will, not being in accordance with law (Issue no.5). On this aspect, the objectors urged that the endorsement of the registration made on the original Will did not correspond with those on official record of the Office of Sub-Registrar and hence the Will was a forged document. In this context, the learned Single Judge in paragraph 10 of His Lordship's judgment held as follows:

10. Since the Will purports to be registered after the death of the deceased, counsel agreed that issue no.5 is of no consequence and accordingly, need not be decided. A caveat; counsel for the petitioner made limited reliance on the issue of registration, reliance being placed to the effect that the document in question existed as on 8.5.1987. This submission was made by counsel for the petitioner in the light of the arguments of Dr. K.S. Sidhu, learned senior counsel for the objectors that the conduct of the petitioner shows that the Will was brought into existence much later, somewhere around May, 1988.

(E) From the aforesaid judgment and order of the learned single Judge dated 2.3.2005, an appeal was preferred by Smt.Swaran Lata (petitioner in the present petition) being FAO(OS) No.103/2005. The said appeal was dismissed by a Division Bench of this Court (Hon'ble Mr.Justice Vijender Jain and Hon'ble Ms.Justice Rekha Sharma) by a detailed judgment on 18.08.2005. With regard to the objection of the appellant that the will was a fabricated document and was brought into existence after the death of late Shri Sudershan Lal, learned Division Bench after minutely going through the record of the Probate Case, negated the aforesaid contention of the appellant. As regards the registration of the Will also, though this aspect was raised by the objectors before the Appellate Court, the Appellate Court found no infirmity with the order of the learned Single Judge. The following pertinent observations with regard to the registration of the Will were made by the Appellate Court in paragraph 10 of its judgment:

10. We do not dispute the proposition that a Will if registered has to be registered in the manner prescribed under Section 61 of the Registration Act 1908. However, so far as this case is concerned the onus to prove the issue whether the registration of the Will was in accordance with law was laid on the respondent. It was therefore for the appellant to summon the record from the office of the Sub Registrar. He having not done so and once the certified copy of the registered Will was placed on record, the effect of document being in existence cannot be disputed. Even otherwise assuming the Will was found to be not registered as per law, it would have made no difference to the outcome of the case, as in Delhi, Letters of Administration can be granted even without registration of the Will. Nothing therefore turns either on the argument raised by counsel for the appellant or on the authorities cited by him.

(F) After the dismissal of the appeal by the Division Bench of this Court, the petitioner filed SLP (Civil) No.1607/2006 against the judgment of the Division Bench dated 18.8.2005. The same was dismissed by the Hon'ble Supreme Court vide order dated 30.01.2006.

5. The petitioners having exhausted all the channels of appeal, have filed the present petition under Section 263 of the Indian Succession Act for revocation of the grant of Letters of Administration granted by this Court vide order dated 2.3.2005 in Probate Case No.34/1988. The grounds for revocation are set out in Section 263 of the Indian Succession Act, which reads as follows:

263. Revocation or annulment for just cause.- 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; or

(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.

6. Reliance is placed by the petitioner herein on Sub-Clause (b) to the Explanation of Section 263 to seek revocation of the letters of administration granted by this Court, as is obvious from a reading of paragraph-6 of the petition, which reads as follows:

6. It is respectfully submitted that the order dated 02.03.2005 made by this Hon'ble Court for making the grant of Letters of Administration, with will annexed, are liable to be revoked, because the letters had been obtained fraudulently by making false suggestions, and concealing from the court facts material to the case. Particulars of fraud, perpetrated upon the court, and others having interest in the estate of the deceased, like the applicant herein as discovered on 25.10.2005, may be stated as under:

a) The respondent, who is the propounder of the document alleged to be will, purports to have presented it before the Sub Registrar-III, Delhi for its registration by him, on 08.05.1987. The Sub Registrar is alleged to have made an endorsement on the back side of the document,- purportedly an endorsement under Section 52, Registration Act endorsing the name of Shri Sudershan Lal son of Bakshi Ram (i.e. the alleged testator) as the person who was presenting the said document for registration. The corresponding endorsement on the alleged will filed before this Hon'ble Court for being annexed to the Letters of Administration, as ordered to be granted on 02.03.2005, records that the document presented for registration was the Will After Death presented by Prem Prakash Sharma son of Shri Madan Mohan.

b) The next endorsement, - apparently purporting to be one under Section 58 Registration Act, - is to the effect that execution of the document presented for registration was admitted by Sh.Sudershan Lal Testator, identified by Madan Mohan Advocate and I.C. (illegible) Adv. The corresponding endorsement in the photocopy supplied by the respondent substitutes the name of Prem Prakash Sharma Beneficiary in place of Sudershan Lal Testator, as the person, who is alleged to have admitted the execution of the document presented for its registration.

c) The alleged will, if allowed to stand, would have the effect of testamentary disposition of the interest of the deceased in the joint family properties of the Hindu Undivided Family, known as Bakshi Ram and Sons. In addition to making fraudulent and false suggestions before the Sub Registrar, as specified above, the respondent concealed from the court facts material to the case. He concealed the fact that the alleged testator was a member, and in fact the Karta, of the joint Hindu Family known and styled all over and all around, as Bakshi Ram and Sons. Late Sh.Bakshi Ram was the father of the alleged testator and of Sh.Madan Mohan Sharma, the father of the respondent and of Sh.Kulbhushan, one of the alleged attesting witnesses of the so-called will. Evidence of unimpeachable character is available to prove that the alleged testator had described himself in various documents, including the documents filed before the High Court, as Karta of M/s.Bakshi Ram and Sons (HUF). The alleged testator continued to describe his status as Karta of M/s.Bakshi Ram and Sons (HUF) at all material times during his life, until death on 01.02.1987. Law is well settled that a co-parcener, including the Karta cannot dispose of the co-parcenary propeerty by way of gift or will. It was, perhaps for this reason that the respondent annexed to the application under Section 276, Succession Act, an inventory describing all the items of property therein as the self acquired property of the testator.

d) The applicant, has since discovered on 25.10.2005, that the alleged will is a rank forgery and the forgerer is none else than the respondent himself, aided and abetted, among others, by his father Madan Mohan Sharma, and his father's brother, namely, Sh.Kulbhushan, whose name has figured above as an alleged attesting witness of the alleged will.

7. A bare reading of the aforesaid grounds for revocation make it abundantly clear that the revocation is being sought by the petitioner principally on two grounds:

I. The Will is a forged and fabricated document and this is borne out, inter alia, by the endorsements of registration made on the original Will which do not correspond with the endorsements of registration made on the official record of the Sub-Registrar Office-III, Delhi, when the Will was presented for registration on 8.5.1987.

II. The Testator was the Karta of HUF properties and thus could not dispose of the coparcenary properties by way of a Will.

8. Adverting first to the second ground for revocation of the Will, as already stated the question whether the testator was the Karta of HUF properties and thus could not dispose of the coparcenary properties by way of a Will, was dealt with in Probate Case No.34/1988 and the learned Single Judge held in paragraph 9 of His Lordship's judgment that the issue framed by His Lordship in this regard (Issue No.2) being the subject matter of civil proceedings in Suit No.2400/1990, the said issue would be decided in the civil suit. The findings of the learned Single Judge having been affirmed in appeal by the learned Division Bench of this Court and the SLP against the said judgment of the learned Division Bench having been dismissed by the Hon'ble Supreme Court, this Court would naturally be bound by the said orders. It is, therefore, not for this Court to go into this aspect any longer. Even otherwise, it is trite law that the question of title to the properties ought not to be gone into in probate proceedings, more so in the instant case where a civil suit in respect of the same is pending.

9. As regards the first ground for revocation of the Will viz., that the Will is a rank forgery, no doubt it is open to the petitioner herein to prove that the Will was forged by proving that the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case. In other words, the petitioner has to allege and prove that the letters of administration were obtained by perpetrating fraud and by concealment of material facts from the Court. Thus, in my prima facie view despite the fact it has been held in judgment dated 2.3.2005 that the Will is not a forged document and the said judgment has been affirmed by the learned Division Bench and a Special Leave Petition there from has been dismissed by the Hon'ble Supreme Court, it would be open to the petitioner to place before this Court any material fact which was hithertobefore concealed from the Court to entitle the petitioner to the relief of revocation. Learned Senior Counsel for the petitioner Dr.K.S. Sidhu submits that the particulars of fraud set out in the petition are sufficient to entitle the petitioner to grant of a revocation order in her favor. I refrain from expressing any view on this as this is essentially a matter of evidence, which has yet to be adduced by the parties. In this view of the matter, I do not think that the framing of any additional issues is called of. I.A.No.10301/2006 filed by the petitioner is, therefore, dismissed.

10. Adverting to I.A.No.10302/2006 filed by the respondent, learned Counsel for the respondent contends on the strength of a judgment of the Hon'ble Supreme Court Mrs. Nalini Navin Bhagwati and Ors. v. Chandbardan Mehta that the present application for revocation be not treated as a suit and be disposed of on the basis of the existing documents on record. In paragraph-7 of its judgment, the Hon'ble Supreme Court observed as under:

7. But when the grant of probate or letter of administration is sought to be revoked, it is not clear to what nomenclature would be ascribed to it and what procedure would be adopted for its disposal. Take for instance a situation when the suit is decreed ex parte. Order IX Rule 13 provides for making of an application to set aside the decree on proof of certain grounds ex parte decree gets set aside. Similarly, when the suit was dismissed for default, under O.IX R-9 an application would be filed and on proof of the circumstances for absence, the order would be set aside and suit would get restored. Similarly, when probate or letter of administration is granted and it is sought to be revoked, S. 263 provides for the grounds on the basis of which it would be revoked. When the grounds are sought to be proved, the question is: whether such an application would be treated to be a suit? We are of the considered view that an application to revoke probate or letter of administration would be treated as miscellaneous application and may be disposed of on the fact situation in an appropriate case either summarily or after recording evidence. The application to revoke the probate or letter of administration thus may be disposed of by the District Judge either summarily or in a given situation where it requires proof of the facts by adduction of evidence by the parties by recording such evidence as is adduced by the parties. The burden will be on the applicant to prove the facts to revoke the probate or letter of administration and the respondent who obtained probate or letter of administration has to disprove the contentions of the applicant. In that situation, based upon the given facts situation, it will be for the Court to dispose it of either summarily or after giving opportunity to both the parties to adduce evidence and consideration thereof. Under these circumstances, it is not necessary that the application for revocation of the probate or letter of administration would be treated as a suit as contemplated under S. 295 of the Act....

11. In the instant case, the application for revocation of the grant of probate has been registered not as a Suit but as a Probate Application/Case. The prayer made for review of order dated 4th August, 2006 is, therefore, uncalled for. Learned senior counsel for the petitioner Dr. K.S. Sidhu by referring to the provisions of Order XLVII sought to urge that the application for review of the order was not at all maintainable.Without going into the aforesaid, I am of the view that the relief sought for by the respondent in the present application is based on a mis-reading of the judgment of the Hon'ble Supreme Court. Hon'ble Supreme Court has nowhere observed that applications for revocation of probate be decided on the basis of documents on record and, as a matter of fact, has specifically stated that it will be open for the court to dispose of the same either summarily or after giving opportunity to both the parties to adduce evidence and consideration thereof.

13. In view of the aforesaid, the grievance of the respondents that evidence cannot be allowed by this Court keeping in view the ratio of the judgment of the Apex Court in Nalini Navin Bhagwati (supra) is wholly baseless.

14. I.A.No.10302/2006 filed by the respondent is accordingly dismissed. It is, however, deemed expedient to record that nothing stated in this order shall be construed as an expression of opinion in the merits of the case.