Delhi High Court

Smt. Chandra Prabha vs Shri Satish Chand Sharma & Others on 12 August, 2010

Author: M. L. Mehta

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO(OS) Nos. 359-361/2010

                                          Reserved On: May 10, 2011

                                         Date of Decision: 12.08.2011

SMT. CHANDRA PRABHA                               ...... APPELLANT

                          Through:    Mr. K.S. Siddhu, Sr. Advocate
                                      with   Ms.   Maldeep   Sidhu,
                                      Advocates
                                 Versus

SHRI SATISH CHAND SHARMA & OTHERS                  ...... RESPONDENTS

                          Through:      Mr.Prakash Gautam, Advocate
                                        for respondent no.1.
                                        Ms. Swaty S. Malik, Advocate for
                                        the respondent no.2.
                                        Mr. Atul Nigam, Advocate for the
                                        respondents No.3A to 3D.

CORAM :
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE M.L. MEHTA
1.  Whether Reporters of local papers may be
    allowed to see the judgment?                     Yes
2.  To be referred to the Reporter or not ?          Yes
3.  Whether the judgment should be reported
    in the Digest ?                                  Yes

M.L. MEHTA, J.

1. This appeal is directed against the order dated 23rd February,

2010 passed by learned Single Judge whereby three applications viz. IA

No.6043 of 2007, IA No. 6044 of 2007 and IA No. 6045 of 2007 filed by

the appellant/ plaintiff in her suit CS(OS) No. 526 of 2007 came to be

dismissed.

2. The admitted facts are that the appellant/ plaintiff is daughter of

Pt. Moolchand Sharma who died on 25th December 1939 leaving behind

his widow and five minor children i.e. three sons (Mr. S.C. Sharma, Mr.

R.C. Sharma and Mr. H.C. Sharma) and two daughters (Chander Lekha

and appellant Chander Prabha). A will was executed by Pt. Moolchand

Sharma dated 10th December, 1937 whereby he vested his entire

property, movable as well as immovable, in five persons (trustees) who

were to manage the said property and ensure that the family of the

deceased was maintained, educated and married. The said Will was

proved and registered before a Senior Subordinate Judge, Delhi on 14 th

December, 1940 in probate proceedings. The probate came to be

granted by the Court on 28th May, 1941. The mother of the appellant

also passed away in 1942 and her sister (Chander Lekha) got married

in the year 1942. The appellant was married in the year 1951. On 12 th

July, 1954, a Transfer Deed was executed by the Trustees in favour of

H.C. Sharma and S.C. Sharma who had attained majority. Since Mr. R.C.

Sharma was minor at that time, his share continued to remain with Pt.

Moolchand Trust. Mutation in the names of Mr. S.C. Sharma and Mr. H.C.

Sharma was effected on 7th July, 1956. The share of Mr. R.C. Sharma

was transferred by the trustees in his name on 11th October, 1958, after

he attained majority. Admittedly, the shares of the sons of late Pt.

Moolchand Sharma were mutated in their names and that they

themselves or through their Lrs are in possession of their shares in the

property.

3. It is also admitted that in a suit being CS (OS) 2166 of 1999 titled

as S.C. Sharma and Others v. R.C. Sharma and Others, the appellant

moved an application dated 4th November 1993 under Order 1 Rule 10

CPC for impleadment and she was allowed to be impleaded as

defendant no.9 in the said suit limited to her rights/ benefits as per the

Will of her deceased father. It is also a matter of record that on 29 th

June, 1996 a suit being CS(OS) 1573 of 1996 titled as Chadra Prabha v.

Satish Chand Sharma and others was filed by the appellant seeking

relief of declaration, rendition of accounts and permanent injunction

against the defendants including her brothers. One of the pleas taken in

the said suit was that she came to know of the factum of the Will on 19th

July, 1993 i.e. ten days before her filing the application for impleadment

under Order 1 Rule 10 CPC in suit bearing number CS (OS) 2166/1990.

The present suit came to be filed on 12th March, 2007 by the appellant /

plaintiff. It is also an admitted fact that she filed an application being IA

No. 11875/ 2006 under Section 55 of Indian Trust Act, 1882 in suit being

CS(OS) No.2166 of 1990 claiming her rights on the basis of the Will and

seeking withdrawal of the rent of the properties deposited by the

tenants. The said application of the appellant/ plaintiff came to be

dismissed by Justice Sanjay Kishan Kaul of this Court vide order dated

29th May, 2007. Admittedly the said order has not been challenged by

the appellant/ plaintiff and has attained finality. The appellant

thereafter got her name deleted from the array of defendants in CS

(OS) No.2166 of 1990 vide order dated 3rd December 2009 of the said

this Court. It is further an admitted fact that appellant also filed a suit

being CS(OS) No.2272/2001 in this Court claiming relief for her

maintenance and that the same has been withdrawn by her.

4. The present suit being CS (OS) No.526 of 2007 was filed by the

appellant/ plaintiff seeking a decree for execution of the Trust Deed,

seizure and impounding of entire estate of the deceased and for

directions to defendant no.4 to produce the accounts of the trust

properties and another records pertaining to the trust in which his

father late Bawa Milkha Singh was the trustee and also for appointment

of a receiver who may take care of the estate until the date this Court

appoints trustees for administration of the trust. It was during pendency

of this suit that the aforesaid three applications were filed by the

appellant which came to be dismissed by learned Single Judge vide the

impugned order dated 23rd February, 2010.

5. Application IA 6043 of 2007 under Section 151 CPC read with

Section 55 and 56 of the Indian Trust Act was based on the averments

that though she was a beneficiary of the trust properties and was

entitled to have a share therein, she has been denied her share in the

trust properties, which should have been collected by the trustees and

deposited in the Court. She averred that the rent proceeds from the

trust properties were being deposited in CS(OS) 2166 /1990 and vide

order dated 8th August, 2006, the defendants have used a portion of the

amount deposited without her knowledge. She prayed for grant of rent

proceeds out of the trust properties of her share or atleast `5 lac per

month till pendency of the suit as a financial support to her since she

was living a life of poverty and has been dependent on her husband and

sons throughout.

6. IA 6044 of 2007 was filed for execution of the trust of which she

claimed to be a beneficiary. She prayed for appointment of a trustee or

the trustees under Section 71 of the Indian Trust Act alleging the

trustees having failed in their duties to deposit her share with the

District Judge, and instead having transferred the trust properties to the

male beneficiaries in collusion with them in order to deprive her of her

lawful entitlements. She averred that the trustees have acted

detrimental and prejudicial to her interests and for all these reasons she

prayed that the Court should appoint trustee/ trustees to safeguard her

benefit and interests.

7. In IA 6045 of 2008 filed under Section 68 of the Act, she has

averred that the trustees of late Moolchand Sharma have acted in

malafide manner. In this regard, it has been alleged that the probate

was applied only by one trustee namely Bawa Milkha Singh and the

same was granted to him. Prayer is made for attachment of the trust

properties and its profits till the pendency of the suit and to administer

the trust property in the best beneficial interest of the plaintiff/

appellant.

8. Learned Single Judge while dismissing the aforesaid three

applications observed that without going into the merits of the case as

to whether the suit as such is maintainable or not, the rival submissions

raised by the parties need to be examined at the time of trial of the

matter. The contentions raised before us by learned Senior Advocate

Dr. K.S. Siddhu on behalf of the appellant on merits are the same as

urged before the learned Single Judge. It was submission of learned

Senior Counsel that creation of trust by Will executed by late Pt.

Moolchand Sharma was not complete without there being acceptance

thereof by the trustees. That being so, he submitted that though it was

not a trust but a situation similar to trust which he termed as resultant

trust or nominal trust. He submitted that in such a situation, when there

was no trust and the property was in the hands of third person, the said

third person would be trustee de son tort which would mean a person

who acquired possession of the property by fraud. He submitted that

the trustees colluded with the male beneficiaries i.e. appellant's three

brothers and transferred the properties in their favour by playing fraud.

In this regard, he submitted that the probate is a fraudulent document

which was granted in favour of only one of the five trustees namely

Bawa Milkha Singh who applied and obtained, whereas the other four

names of the trustees were not in the probate proceedings, but on the

margin of the said document and subsequently corresponding changes

and interpolations were made therein. He also submitted that in place

of trustee Mr. Prem Lal Gupta, the name of Mela Ram was added as one

of the trustees fraudulently. He submitted that the transfer documents

in favour of her brothers Mr. H.C. Sharma Mr. S.C. Sharma and Mr. R.C.

Sharma were outcome of fraud, forgery and conspiracy by the trustees

and her brothers. It was one of the grounds of appellant that because of

this fraudulent acts of omission and commissions on the part of

trustees and her brothers, that aforesaid three applications were filed to

protect the trust property and to prevent the irreparable injuries to her.

Learned counsel submitted that on the face of these documents, the

learned Single Judge ought to have expressed his prima facie opinion on

provisional basis, instead of observing that the averments need to be

tested. In any case, it was submitted by learned Senior Counsel that the

appellant has been denied her share of proceeds of the trust properties

which should have been collected and deposited by the trustees in the

Court and that despite having a share in the properties, she has been

living a life of poverty and depravity. Learned Senior Counsel submitted

that since the trustees had failed in their duty to deposit their share

with the District Judge and instead had transferred the trust properties

to the male beneficiaries, the Court ought to have appointed Trustee(s)

under Section 74 of the Act. He urged that for the administration of the

trust properties and the beneficial interest of the appellant, the trust

properties and its profits need to be attached immediately during

pendency of the suit. These contentions were made by the Learned

Counsel on the submission that the trust is not extinguished, but it

survives.

9. On the other hand, learned counsel for the respondent in this

regard submitted that the issues as sought to be agitated by the

appellant are not permissible in the present proceedings inasmuch as

the probate was not only granted more than 60 years back, but the

same has since been acted upon by the parties. The appellant has

nowhere sought of cancellation or revocation of the said probate and

that being so, it has obtained finality and would constitute judgment in

rem and thus be binding on all the parties including the appellant.

Learned counsel also submitted that the trust on completion of the task

assigned to it, has extinguished and that being so, the present suit as

such was not maintainable.

Learned counsel for the appellant placed reliance on Smt. Rukmani

Devi and others v Narendra Lal Gupta (1985) 1 SCC 144;

Chiranjilal Shrilal Goenka v Jasjit Singh and others (1993) 2 SCC

507 and Crystal Developers v Smt. Asha Lata Ghosh (Dead)

(Through L.Rs.) AIR 2004 SC 4980.

10. We have considered the rival submissions of learned counsel for

the parties and gone through the record. The admitted facts emerging

from the pleadings of the parties and material on record have been

noted above. With regard to execution of the Will on 10th December

1937 by Pt. Moolchand Sharma, there is no dispute. As per this Will, the

entire property, movable as well as immovable, was vested in five

persons/trustees who were to manage the same and to ensure that the

family of the deceased was maintained, educated and married. The said

Will was proved and registered before the competent Court on 14 th

December 1940 in the probate proceedings and probate was granted on

28th May, 1941. Admittedly, the said probate has neither been revoked

nor cancelled, nor any steps taken by anyone, much less the appellant

in challenging the same. That being so, it cannot be disputed that the

probate has attained finality and thus binding upon all including the

appellant. In the case of Smt. Rukmani Devi (supra), the Supreme

Court held thus:

"2.... It is well-settled that the decision of the probate court is a judgment in rem. The High Court

rightly held that till the order granting probate remains in force it is conclusive as to the execution and validity of the Will till the grant of probate is revoked. Apart from the fact that a decision of the probate court would be a judgment in rem not only binding on the parties to the probate proceedings but it will be binding on the whole world. Therefore, a solemn duty is cast on the probate court. Section 41 of the Indian Evidence Act, 1872 provides that a final judgment or order of a competent court in the exercise of probate jurisdiction is conclusive proof of what is decided therein that is about the genuineness of the Will. To be precise, a probate granted by a competent court is conclusive of the validity of such will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. Apart from anything else, the citation having been issued to the appellants and having been served upon them, their failure to enter a caveat to contest the proceedings would preclude them from contesting the validity of the Will in other proceedings.

11. Similarly in the case of Crystal Developers (supra) the Supreme

Court held as under:

"29...... Under Section 263, as stated above, grant of probate or letters of administration is liable to be revoked on any of five grounds mentioned therein. One of the grounds as stated above in failure on the part of the grantee to exhibit/ file an inventory an inventory or statement of account. Similarly, the probate or letter of administration is liable to be revoked if the grant is obtained fraudulently. Can it

be said that revocation of the probate on the ground of non-exhibiting an inventory or statement of account will make the grant ab initio void so as to obliterate all intermediate acts of the executor? If it is not ab initio void in the case of non-filing of inventory or statement of account then equally it cannot be ab initio void in case of a grant obtained fraudulently. In other words, what applies to clause

(e) of the explanation equally applies to clause (b) of the explanation. At this stage, we clarify that if the intermediate act of the executor is not for the purpose of administration of the estate or if the act is performed in breach of trust then such act(s) is not protected. However, acts which are in consonance with the testator's intention and which are compatible with the administration of the estate are protected. Therefore, on reading sections 211, 227 along with section 263, it is clear that revocation of the grant shall operate prospectively and such revocation shall not invalidate the bona fide intermediate acts performed by the grantee during the pendency of the probate.

12. Similarly in the case of Chiranjilal Shrilal Goenka (supra) the

Supreme Court while reiterating the law that it is only the probate court

alone which has the jurisdiction and not the civil court, which is to

adjudicate upon the probate proceedings held as under:

"16. The grant of a Probate by Court of competent jurisdiction is in the nature of a proceeding in rem. So long as the order remains in force it is conclusive as to the due execution and validity of the will unless it is duly

revoked as per law. It binds not only upon all the parties made before the court but also upon all other persons in all proceedings arising out of the Will or claims under or connected therewith. The decision of the Probate Court, therefore, is the judgment in rem. The probate granted by the competent court is conclusive of the validity of the Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. In Sheoparsan Singh v. Ramnandan Prasad Singh, (1916) ILR 43 Cal., 694 PC the judicial committee was to consider, whether the Will which had been affirmed by a Court of competent jurisdiction, would not be impugned in a court exercising original jurisdiction (Civil Court) in suit to declare the grant of probate illegal etc.The privy council held that the Civil Court has no jurisdiction to impugne the grant of probate by the court of competent jurisdiction. In that case the subordinate court of Muzafarbad was held to be having no jurisdiction to question the validity of the probate granted by the Calcutta High Court. In Narbheram Jivram v. Jevallabh Harjivan, AIR 1933 Bombay, 469 probate was granted by the High Court exercising probate jurisdiction. A civil suit on the Original Side was filed seeking apart from questioning the probate, also other reliefs. The High Court held that when a probate was granted., it operates upon the whole estate and establishes the Will from the death of the testator. Probate is conclusive evidence not only of the factum, but also of the validity of the Will and after the probate has been granted, it is incumbent on a person who wants to have the Will declared null and void, to have the probate revoked before proceeding

further. That could be done only before the Probate Court and not on the original side of the High Court.

20. On a conspectus of the above legal scenario we conclude that the Probate Court has been conferred with exclusive jurisdiction to grant probate of the Will of the deceased annexed to the petition (suit); on grant or refusal thereof, it has to preserve the original Will produced before it. The grant of probate is final subject to appeal, if any, or revocation if made in terms of the provisions of the Succession Act. It is a judgment in rem and conclusive and binds not only the parties but also the entire world. The award deprives the parties of statutory right of appeal provided under section 299. Thus the necessary conclusion is that the Probate Court alone has exclusive jurisdiction and the Civil Court on original side or the Arbitrator does not get jurisdiction even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix, the applicant.

13. In view of the law as laid down by the Supreme Court in the

aforesaid cases, we have no hesitation to arrive at a conclusion that the

challenge to the probate on all the allegations as noted hereinabove

was misplaced in the present proceedings. On one hand the learned

senior counsel argues that there was no Trust at all and on the other he

argues for the entitlement of relief of appellant, being beneficiary Trust.

If there was no trust as alleged then the suit as filed was not

maintainable. The Probate Court alone will have the jurisdiction to

entertain the challenge to grant of probate. Till such time, the probate

was revoked or cancelled by a competent court, it was a judgment in

rem and was binding on all the parties including the appellant. In fact

by way of present suit, the appellant seems to be invoking jurisdiction

of this Court in challenging the probate granted by a court of competent

jurisdiction more than 60 years before. This aspect would require

further testing by the Court of learned Single Judge as to whether the

suit in present form was maintainable or not.

14. By virtue of probate, the Will got recognition of its execution and

validity. In fact, there is no dispute that Will executed by Pt. Moolchand

Sharma, the basis of probate, was a genuine one. The appellant is also

relying upon the said Will. By virtue of the said Will, a trust was created

by Pt. Moolchand Sharma with the specific task of devolving the

properties on male beneficiaries namely sons of the Testator, while

making a provision for the maintenance, education and marriage and

residence for other family members. A reading of the Will makes it clear

that the Testator Pt. Moolchand Sharma clearly and in unequivocal

terms mentioned that after his death, all the properties would go to his

sons in equal shares, subject to certain conditions such as right of

residence of his wife, marriage of his daughters, maintenance and

education of all his children, including the appellant. The right and

benefit those were to accrue to the appellant were limited to education,

maintenance and marriage. The appellant got married many years

before and is now stated to be aged around 80 years. That being so, all

that was required to be performed by the trusties has already been

accomplished qua the appellant. The trustees have already

accomplished the tasks assigned to them decades before. Apparently,

the trust appears to have extinguished. On this aspect as well in the

trial court of Learned single judge will have to examine as to whether

suit was maintainable in view of Section 59 of the Act. All this is the

matter of adjudication after trial, subject to the jurisdiction of the Court.

15. It is to be noted that the appellant also became a party in Suit

No.2166/1990 and was arrayed as defendant no.9. Similar relief was

sought by her in that suit. The relief, as sought by her, was declined by

this Court vide order dated 29th May, 2007. The court observed as

under:-

"I am unable to persuade myself to agree with the contention of learned counsel for defendant no.9 for the reason that the intent of the Will is clear. One cannot lose sight of the fact that the Will was made on 10.12.1937 and has to be construed to indicate the intent of the testator. The intent is clear that the three sons should be the beneficiaries of the property. There are certain provisions made for the residence of the wife and the children. The object of providing so was that the children would be required to be educated, maintained, supported and then married. That has already happened in the case of defendant no.9 who has chosen to file these applications decades after the matter had attained some finality on account of mutation with the LandDO, awards being passed and the decree being passed by this Court."

16. In that factual situation, the appellant chose to get her name

deleted from the aforesaid suit 2166/1990. Not only that, the appellant

also filed another suit no.2272 of 2007 based on almost similar

averments and seeking similar reliefs, which was also subsequently

withdrawn by her. It is also noted that the appellant had earlier filed

another suit being suit no.1573 of 1997 seeking reliefs of declaration,

rendition of accounts and permanent injunction against her brothers

and their LRs in respect of the same properties. The plea sought to be

taken for withdrawing from the Suit No.2166 of 1990 and 2272/2007 is

that she was wrongly advised that the document dated 10th December

1937 was instrument of the trust and not the Will and that these cases

were going on without any legal basis.