Gulshan Kumar Anand vs Peshori Lal Anand
2008 Latest Caselaw 1490 Del

                                Unreportable
                  IN THE HIGH COURT OF DELHI AT NEW DELHI

             +FAO (OS) No.3/2002 and CM Nos. 5/2002 & 515/2003
                                    and
                   FAO (OS) No. 4/2002 and CM No. 6/2002

                                                     Date of Hearing: 18.07.2008
                                                    Date of Decision: 29.08.2008

#Gulshan Kumar Anand                     ......Appellant

!                                        Through: Mr.Rohit Kumar with
                                         Ms.Sumeet Kaur

                     Versus

$Peshori Lal Anand                       .....Respondent
                                         Through Mr.APS Ahluwalia

CORAM :-
*THE HON'BLE MR.JUSTICE A.K.SIKRI
THE HON'BLE MR. JUSTICE MANMOHAN SINGH

       1.Whether Reporters of Local papers may be allowed to
         see the Judgment?
       2.To be referred to the Reporter or not?
       3.Whether the judgment should be reported in the Digest?

A.K. SIKRI, J.

:

1. The appellants are the real brothers. Two Probate Petitions were filed

invoking original jurisdiction of this Court. One was by the respondent

herein, namely, Sh.Peshori Lal on the basis of Will dated 11.12.1968

executed by their mother late Smt.Lakshmi Devi. The second petition was

filed by the appellant herein on the basis of Will executed by their father on

28.11.1978. Subject-matter of both the Wills is the same properties

bequeathed by both of them. It is not in dispute that Smt.Lakshmi Devi was

the absolute owner of the properties bequeathed by her. The Will dated

28.11.1978 written by the parties' father is on the premise that after the

death of his wife Smt.Lakshmi Devi, he became the absolute owner of the

properties in question as stipulated in para-5 of the Will of Smt.Lakshmi

Devi. There is no dispute about the execution of Will dated 11.12.1968

executed by Smt.Lakshmi Devi. In any case, the respondent herein has

proved the Will by leading appropriate evidence.

2. In fact, there is no serious dispute about the factum of the Will dated

28.11.1978 executed by Sh.Boota Mal, father of the parties. The entire

dispute is as to whether he had right to execute the said Will. It is because

of the reason that whereas the assertion of the appellant was that their

mother Smt.Lakshmi Devi in her Will had made the bequeath in favour of

her husband who became absolute owner thereof after her death and

therefore, had right to make further bequeath as owner thereof, contention

of the respondent is that by Will dated 11.12.1968 Smt. Lakshmi Devi

conferred only life interest in favour of Sh.Boota Mal with further stipulation

that after his death the properties had to be devolved upon his sons in the

manner stipulated in para-6. Therefore, Sh. Boota Mal could not have made

disposition of the said properties by writing the Will dated 28.11.1978.

3. The learned Single Judge of this Court vide judgment dated 23.4.1985

granted probate in favour of the respondent Sh.Peshori Lal in respect of Will

dated 11.12.1968 executed by Smt.Lakshmi Devi. At the same time, he

refused to grant probate in respect of Will dated 28.11.1978 executed by

Sh.Boota Mal holding that in the Will of Smt.Lakshmi Devi only life interest

was created in favour of Sh.Boota Mal and after his death, the property in

his hand had to go to two sons, viz., the appellant and the respondent

herein, in shares as mentioned in para-6 of the Will of Smt.Lakshmi Devi.

This judgment was taken in appeal. The Division Bench, vide orders dated

11.12.1985, allowed the appeal and set aside the judgment dated 23.4.1985

rendered by the learned Single Judge, inter alia, observing that the Probate

Court is only concerned with the decision whether the Will is valid. Even if in

the trial, Will executed by Sh.Boota Mal is proved and Letter of

Administration granted, it would still remain to be seen whether the person

concerned gets an estate or not for which the terminative factor would be as

to whether Sh.Boota Mal had only a life interest in the property in question.

However, such a question could be decided only in a regular civil suit, which

was already pending, noted the Division Bench. After the matter was

remitted back to the learned Single Judge with the aforesaid observations,

the learned Single Judge has decided both the Probate Petitions afresh vide

his judgment dated 5.11.2001, albeit, with the same results, namely,

granting probate in respect of the Will of Smt. Lakshmi Devi and dismissing

the other Probate Petition filed by the appellant herein seeking Letter of

Administration on the basis of Will executed by Sh.Boota Mal, on the ground

that he had neither any authority nor any locus to bequeath the property in

question. A perusal of the impugned judgment of the learned Single Judge

would show that he has gone into the same exercise again, namely,

interpreted paras 5 and 6 of the Will of Smt.Lakshmi Devi and on that basis

concluded that Sh.Boota Mal was given life interest in the estate left by

Smt.Lakshmi Devi, which was to be devolved upon the two sons after the

death of Sh.Boota Mal in the manner mentioned in para-6 of the said Will

and therefore, Sh.Boota Mal could not have bequeathed the properties in

question in the manner he liked since he was only given life interest.

Interestingly, the learned Single Judge noted the Division Bench order dated

11.12.1985 whereby the earlier judgment dated 23.4.1985 was set aside.

The following extract is specifically reproduced in the impugned judgment:-

"The fact of the matter is, as it appears to us, that the probate court had really to decide the validity of the Will and the question as to what title is conveyed by the Wills has to be left to other proceedings. Hence, it may be that Boota Mal got life estate or it may be that he got full estate but this has to be decided by the appropriate court. At the stage of probate, all that had to be seen was what was the Will and whether it was valid? The judgment of the probate court operates in rem. Once probate is granted, the same is effective qua the whole world.

5. As far as the other case is concerned, i.e. probate case No.58/79 that has failed on the short ground that on the interpretation of Lakshmi Devi's will Boota Mal only life estate. We may say that we express no opinion as to what estate was actually received by Boota Mal. It is now for the Probate Court to decide whether the Will made by Boota Mal was a valid will. The decision of the probate court

regarding validity of the Will does not mean that the estate of Boota Mal is changed or altered. Whatever rights Boota Mal may have had in this house, will still operate and the estate passed in accordance with the Will, will depend on the nature of the estate which Boota Mal held. The probate court is only concerned with decision whether the Will is valid. Assuming that on trial the Will is upheld and letters of administration are granted, it will still remain to be seen whether the person concerned gets an estate or not because Boota Mal's estate was only a life estate, and no estate will pass if the letters of administration are granted. However, this question as to what estate Boota Mal had has to be decided in a regular civil suit, which we are told are already pending. The result will be that this appeal will also be accepted and this case will be remanded for fresh decision.

6. We also make it clear that any decision reached in the probate case regarding nature of the estate has no binding effect on the civil court's decision. The binding force is limited to the validity of the Will and no other question."

4. Notwithstanding the above, same error is committed by the Single Judge by

adopting a circuitous approach as is clear from the following observations of

the learned Single Judge before approaching the issue at hand:-

"As is apparent from the conventions of learned counsel, Boota Mal derived his right of ownership from the Will executed by Lakshmi Devi. Now to segregate the said right from the right granted to both the parties by virtue of para 6 by the person who was absolute owner of the property and by virtue of whose Will Boota Mal claims the right of the absolute ownership prima facie sounds fallacious and difficult to ram down the throat. Neither probate nor letter of administration can be granted unless the ultimate intention of Lakshmi Devi is culled out by way of reading paras 5 & 6 conjointly, i.e. conjunctively and not disjunctively as is sought by Mr.Chaudhary."

5. After quoting few judgments, one Full Bench judgment of this Court and two

Supreme Court judgments, thereafter on the interpretation of the Will, the

learned Single Judge observed that the underlying principle was that the last

intention of the testator is given effect to which principle is regulated by the

well known maxim: "cum duo inter se pugnantia reperiuntur in testament

ultimum ratum est." Taking note of this principle the learned Single Judge

went on to observe as under:-

"There is no gainsaying the fact that the court entrusted with the probate petition has to return finding as to the validity or legality of the Will and should not traverse beyond that. As is the tenor of the ratios in the aforesaid authorities duty is also cast upon the court dealing with the probate petition to grant probate and letters of administration in unambiguous terms and not resulting in anomalous or fallacious situation."

6. On this basis the trial court assumed that it was necessary to interpret the

Will of Smt.Lakshmi Devi before granting probate in respect of that Will and

thought it proper to interpret paras 5 and 6 of the said Will. Thereafter, he

dwelled into the exercise of interpreting these two clauses of the Will and

opined that only life interest was bestowed in favour of Sh. Boota Mal by

Smt. Lakshmi Devi and as s consequence, Will executed by Sh. Boota Mal

was of no effect even if it was validly executed.

7. The entire approach of the learned Single Judge is erroneous and in the

teeth of principle of law stated by the Division Bench in its judgment dated

11.12.1985 It is clearly wrong on the part of the learned Single Judge to

hold that unless the provisions of the Will are to be interpreted, no probate

or Letter of Administration can be granted in respect of the said Will - the

Will executed by Smt.Lakshmi Devi in the instant case. In its attempt to

make a fine distinction that if clause 6 of the Will executed by Smt.Lakshmi

Devi prevails, the Will executed by Sh.Boota Mal has no legs to stand even if

it was validly executed, the learned court below fell into the same error

which was committed earlier when judgment dated 23.4.1985 was given,

though set aside by the Division Bench in appeal decided on 11.12.1985. In

the probate proceedings the learned Court was required to only decide as to

whether Smt.Lakshmi Devi had executed the Will in question, if so, to grant

probate/letter of administration in that behalf. Once the probate is granted,

it could be left to the parties to agitate, if they so wanted to argue as to

whether Sh.Boota Mal was given life interest or absolute interest in the

property bequeathed by Smt.Lakshmi Devi. Likewise, in respect of the Will

executed by Sh.Boota Mal also, the only question to be examined was as to

whether he executed Will dated 28.11.1978 or not. Probate in respect of

both the Wills could have been given, if proved. When that is not the scope

and jurisdiction while deciding with the probate cases, the probate in both

the cases could be granted and in so far as the rights flowing therefrom are

concerned, if there is a difference between the parties thereupon, the same

could be agitated in a regular civil suit as was observed by the Division Bench

on the earlier occasion.

8. There are only two possibilities when Will of Smt.Lakshmi Devi is

interpreted, namely, (i) life estate was given to Sh.Boota Mal by Smt.Lakshmi

Devi in her Will. If that is decided in a civil suit, the Will of Sh.Boota Mal

would not be given effect to, even though probated on the ground that he

had no right to execute the Will in respect of those properties in which he

only had life interest or (ii) the civil court holds that Sh.Boota Mal was given

absolute interest in the property bequeathed by Smt.Lakshmi Devi in her

Will. In that eventuality Will executed by Sh.Boota Mal would be given

effect to and properties shall be devolved upon the parties as per the Will.

In fact, suit in that behalf is already pending. The purpose of probate

proceedings is to find out whether Will in question, which is projected, is the

last Will of the testator and validly executed. By granting probate in both

the cases this purpose would have been achieved. The dispute in the regular

civil suit thereafter could proceed on the premise that both are validly

executed Wills and only effect of those Wills can be determined in the civil

proceedings. The view we have taken is not only in conformity with the

earlier decision dated 11.12.1985 rendered by the Division Bench in this very

cases, it is in consonance with the principle of law laid down by the Supreme

Court defining the scope of court's jurisdiction while deciding testamentary

cases. Our purpose would be served by referring to a recent judgment of

the Apex Court in Krishna Kumar Birla v. Rejendra Singh Lodha and Others,

(2008) 4 SCC 300 (per S.B. Sinha, J.). The Supreme Court in categorical terms

expressed the legal position in the following manner:-

"57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as to how and in what manner an application for grant of probate is to be filed, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other persons is beyond the domain of the Probate Court."

xxxxx

67. In the recent judgment of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon [(2007) 11 SCC 357: (2007) 12 Scale 282], this Court inter alia relying upon Chiranjilal Shrilal Goenka v. Jasjit Singh (1993) 2 SCC 507 and upon referring to a catena of decisions of the High Court and this Court, held that the Probate Court does not decide any question of title or of the existence of the property itself.

68. In Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal [(2008) 1 SCC 267: (2007) 12 Scale 542] it is stated (SCC p. 274, para 22)

"22 (21). The Probate Court, indisputably, exercises a limited jurisdiction. It is not concerned with the question of title. But if the probate has been granted subject to

compliance with the provisions of the Act, an application for revocation would also lie."

9. Learned counsel for the respondent, however, submitted that it was proper

on the part of the learned Single Judge to address the aforesaid issue in

order to shorten the litigation. This reason by itself will not confer

jurisdiction on a probate court which the court otherwise does not have.

Learned counsel for the respondent also relied upon a judgment of the

Supreme Court in Anil Kak v. Kumari Sharda Raje and Others, (2008) SLT 631

to contend that such an exercise was undertaken in that case in probate

proceedings. Incidentally, this judgment is also by the same Hon'ble Judge

who is the author of judgment in the case of Krishna Kumar Birla (supra). A

reading of this judgment would clearly demonstrate that the issue in that

case was entirely different. Apart from the issue as to whether the Will was

validly executed or not, other dispute was in respect of appendices which

were not in existence at the time when the Will was executed. Will in

question was in two parts: first part dealt with the property belonging to the

husband of the testatrix and the second part dealt with the properties which

purportedly belonged to her. Distribution of assets was not specifically

stated in the Will but was mentioned in the appendices. However, those

appendices, which were required to be read as part of the main Will so as to

effectuate intention of the testatrix, were not proved at the trial. The Court

held that since Will by its own could not be given effect to, it must be read

along with appendices. While deciding such a question as to whether Will by

its own could be given effect to, the Court went into the exercise of

interpretation of that Will. It was, thus, from altogether different angle and

does not touch the principle of law with which we are concerned. This

judgment, therefore, shall be of no help to the respondent.

10. Since we are holding the view that interpretation of the Will of Smt.Lakshmi

Devi was not required in order to ascertain as to whether Sh.Boota Mal had

right to execute the Will or not, we are not commenting as to whether such

an interpretation given by the learned Single Judge is correct or not. Only on

the ground that this exercise was not necessary for grant of probate, we

allow these appeals and set aside the judgment of the learned Single Judge

in so far as dismissal of Probate Petition No.58/1979 filed by the appellant

herein is concerned. We remand Probate Petition back to the trial court to

decide the limited question as to whether Will dated 28.11.1978 purportedly

executed by Sh.Boota Mal is validly executed. All the pending applications

also stand disposed of. There shall be no orders as to costs.

                                                                 (A.K. SIKRI)
                                                                   JUDGE



August 29, 2008                                         (MANMOHAN SINGH)
hp.                                                          JUDGE