Shri Harinder Singh Kochar vs State & Others
2010 Latest Caselaw 3837 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                               Pronounced on: 18.08.2010

+                              Test Case No.37/2010


     SHRI HARINDER SINGH KOCHAR                                           ..... Petitioner

                      Through: Shri Hameed S.Shaikh, Advocate

                                           versus

     STATE & OTHERS                                                     ..... Respondents

Through: Shri Mustafa Arif, Advocate for Respondents Nos.5 to 8.

None for respondents 1 to 4.

CORAM:

MR. JUSTICE S. RAVINDRA BHAT

1. Whether the Reporters of local papers
may be allowed to see the judgment?           YES

2. To be referred to Reporter or not?         YES

3. Whether the judgment should
be reported in the Digest?                    YES

MR. JUSTICE S.RAVINDRA BHAT

%

1. This judgment will dispose of a reference dated 19.04.2010 under Section 113 read with Order 46 Rule 1 of Code of Civil Procedure (hereafter referred to as "the CPC") received from learned Additional Judge Shri Rajender Kumar Shastri which are in the following terms:

(1) Could a petition seeking probate of a will, be treated as an ordinary civil suit?

(2) Was it not contrary to law to pass a decree on a petition, in which court does not decide title or even rights of parties?

(3) If not, what type of civil suit, such a petition could be treated and how the court will decide as what court fee should be fixed and by which from the parties?

Test Case 37/2010 Page 1

2. The brief facts of the case are that one Shri Harinder Singh Kochar (hereinafter referred as "the petitioner") sought the grant of probate in respect of the estate of Late Shri Saran Singh Kochar, propounding a Will dated 30.08.2006. The proceedings were contested primarily by third respondent, Shri Jatinder Singh Kochar who had filed objections. The other respondents to the probate proceedings included the testator's widow (Smt. Manmohan Kaur Kochar) and his daughters Smt. Ramandeep Kalra and Smt. Hardeep Kaur Sarna (Respondent Nos. 4 and 5). Respondents 6 to 8 were the husband and children of the said Hardeep Kaur Sarna, respectively. Hardeep Kaur Sarna was arrayed as Respondent No.5 and was represented by her husband Shri Satinder Singh (respondent No.6). At the time when petition was filed, the widow of Shri Saran Singh Kochar i.e. Manmohan Kaur (who was arrayed as second respondent) had indicated her No Objection by filing an affidavit in Court, to the grant of probate in respect of the Will. Likewise Smt. Ramandeep Kaur had also indicted her No Objection by filing an affidavit in Court.

3. The testator, had, in the Will (which was a registered one) mentioned about his assets in para 6; it comprised of two immovable properties and had description of bank accounts and stock and shares held by him. The first immovable property was House No.27, South Patel Nagar which had a built-up construction. The second immovable property was 7 kilas of land in Ganganagar, Rajasthan. The dispositions in the Will were to the effect that the South Patel Nagar property was to go to the widow i.e. Smt. Manmohan Kaur who was to hold it during her lifetime. The Will provided that in case she pre-deceased the testator or in another eventuality i.e. after her death the property was to be shared in such a manner that Jatinder Singh Kochar (third respondent) was entitled to exclusive ground floor rights and the remaining portions of the property, including terrace rights - and outhouse - were to be enjoyed by Harinder Singh Kochar. He was also conferred with the right to put up further constructions, on the said South Patel Nagar property. The property at Ganganagar was bequeathed jointly to the sons Jatinder Singh and Harinder Singh in equal shares. The testator also made dispositions in favour of wife and his daughters as far as the movable properties and securities were concerned.

4. Apparently during the pendency of the proceedings the testator's widow expired. On 23.05.2009 the Court was informed that the parties to the probate proceedings had compromised their disputes; an application under Order 23 Rule 3 CPC for recording the compromise was moved. The Court on that day took on record the said joint application and

Test Case 37/2010 Page 2 recorded statement of the petitioner (Harinder Singh Kochar), the objector (Jatinder Singh Kochar) Smt. Ramandeep Kalra and Satinder Singh (Respondent No.6 and attorney of Respondent No.5 as well as respondents 7 and 8). The said statement is in the following terms :

"We the above mentioned legal heirs of late Sh. S.S. Kochhar and Smt. Manmohan Kaur Kochhar have entered into a family settlement and by accepting the Wills of our parents and the compromise in writing is filed by way of application under Order 23 Rule 3 CPC which is ex. C-1. The affidavit of the parties are Ex. C-2 to Ex. C-5. Memorandum of family settlement is ex. C-6 and photocopy of power of attorney of respondent No.5, 7 and 8 is ex. C-7 (original seen and returned). This compromise has been entered into by us voluntarily without any pressure, coercion or undue influence. We are bound by the terms and conditions as mentioned in the compromise deed ex. C1 and will abide by the same and given an undertaking to this effect."

On the same day i.e. 23.05.2009 the Court in its order stated that compromise had been arrived at by the parties. The proceedings were thereafter directed to be treated as an ordinary suit and be disposed in terms of the compromise deed which was marked as Exhibit C-1; the parties were accordingly directed to file the prescribed court fees applicable to ordinary suits and a decree sheet was directed to be prepared.

5. In these background of circumstances, an application was moved on 29.09.2009 seeking a direction from the Court to place on record the requisite court fees. The matter was thereafter listed on 12.12.2009; due to non-appearance the application was dismissed. An application for restoration was moved when apparently the Court expressed reservations as to whether a decree could be drawn. The parties accordingly made submissions on 14.01.2010 and 12.03.2010, after which the present reference was framed, and transmitted to this Court.

6. The order under reference notices the judgment of the Supreme Court reported as Nirmal Devi Vs. Arun Kumar Gupta & Ors. (2005) 12 SCC 505 and also decision of this Court in Sunil Kumar Babbar Vs. State & Ors. (FAO 297/2000). The learned Additional District Judge went on to hold that while parties are free to compromise, there was nothing which permitted a probate proceeding to be converted into an ordinary suit. The reservation of the Court is to be found in the following extract of the said order:

"A probate court under the Indian Succession Act decides jus in rem, it is binding against the whole world, while in a dispute between two parties, civil court decides jus in personam, which binds only parties of that case. What will be the nature of order passed by probate court in a probate petition if it is treated as a civil suit? As it was held by the apex court in case titled as "Wasanti Devi Vs. Ravi Prakash Ram Test Case 37/2010 Page 3 Prakash Jaiswal (2008) 1 SC Cases 267" probate court indisputably exercises a limited jurisdiction. It is not concerned with the question of title.

It is not in-vogue to draw a decree, after a petition under The Indian Succession Act is decided. Section 2(2) of CPC defines "decree" as decree means the formal expression of a adjudication which, so far as regards the court expressing it, conclusively determines the rights of a party with regard to or any of the matters in controversy in the suit.

As mentioned above, a probate court does not decide rights of the parties. Hence, it will be contrary to law if such a decree is drawn as contemplated in the impugned order."

7. Before proceeding with the discussion on the points of reference, this Court is of the opinion that the settlement which was approved by the Court and on the basis of which joint statement of the parties was recorded (which in turn was directed to form part of the decree of the Court) has to be noticed. It states, in its material terms :

"Whereas there had been some misunderstanding amongst legal heirs after the death of their father in relation to inheritance of assets left behind by him due to which First Party had to file a probate petition before District Judge Delhi.

Whereas after the death of the mother Smt. Manmohan Kaur Kochar for maintaining family peace. Parties in consultation with all the family members, have orally divided the assets of their parents in accordance with their Wills dt. 3.8.2006 Copies of the Wills are attached with the present Memorandum. Parties agree to the genuineness of the Wills of their parents and Honour the same. Parties accept the Wills of their parents in entirety.

.................. .................. ............

8. That the other moveable assets left behind the mother shall be share and bequeathed in accordance with the Will of the Mother to which all parties agree. All the parties agree to honour the Wills of their parents which would also be a gesture of respect of all the legal heirs towards the last wishes of their parents.

9. That the shares/securities as mentioned in Annexure B and Annexure C with the Will of the mother had been handed over to the Third Party and Fourth Party i.e. Married Daughters respectively in the life time of their mother. They shall be the absolute owners of the said shares/securities.

10. That the shares/securities as mentioned in Annexure-B which are jointly in Fathers, Mothers and Smt. Hardeep Kaur Sarna are given to Smt. Hardeep Kaur Sarna and the same have been handed over to her. For clarification the Stock Certificate Details of fourth Party are annexed with the present Memorandum of Family Settlement. It is further understood that if the fourth party predeceases before the transfer of shares to her name then her two children, Jasmine Sarna and Gagandeep Sarna would be the absolute/sole owners of the said shares/securities as

Test Case 37/2010 Page 4 well as their dividends, rights shares etc. This is in keeping with the spirit of both the wills of her Father Shri Saran Singh Kochar and her mother Smt. Manmohan Kaur Kochar. That if afther the death of the mother any dividends, rights issues etc have come at the address of First Party or will come, the same shall be handed over to the Fourth Party being her moveable property.

11. That the shares/securities as mentioned in Annexure-C which are jointly in Fathers, Mothers and Smt. Ramandeep Kalra are given to Smt. Ramandeep Kalra and the same have been handed over to her. For clarification the Share Details of Third Party are annexed with the present Memorandum of Family Settlement. That if any dividends, rights issues etc. come at the address of First Party the same shall be handed over to the Third Party being her moveable property.

12. They shall be the absolute owners of the said shares/securities.

13. That to sum up both the Wills of the parents annexed with the present Memorandum of Family Settlement are accepted by the parties in entirety.

14. This agreement has been entered in to between the parties of their own free will and accord in order to finally end and settle any misunderstanding and any unpleasant litigation between them."

8. There can be no doubt that proceedings under the Indian Succession Act, 1925 (hereinafter referred to as the `Act') are unlike ordinary civil proceedings in content and character. It is a universally accepted truth that a Will takes effect from the date of death of its maker and constitutes the mandate as it were, of someone who wishes to dispose of his properties in a particular manner, often disregarding the normal lines of succession. Although it is not necessary to secure probate, anyone who does so can set it up against the entire world as the grant - so long as it is on the record - binds the entire world by virtue of Section 237. The Court called upon to issue a probate has to satisfy itself that the Will was indeed executed by the testator and validly attested in terms of Section 63 of the Indian Evidence Act. The Court is under further obligation to satisfy itself that the Will was not signed under any suspicious circumstances and that no coercion or undue influence or such other vitiating factors, were brought to bear on the mind of the testator. Sections 280 and 281 of the Act prescribe the signature and verification of probates; they also mandate that the attesting witnesses who are expected to depose as to the truth and genuineness of execution of the Will, should affirm an affidavit in support of the petition. The sanctity accorded to this procedure is underlined by Section 282 which enacts a punishment for a false averment. The procedure to be adopted by the Court is indicated in Section 283 of the Act which states that the petitioner may be examined under oath and Court may also require further examination of the due execution of the Will as it deems appropriate. The special nature of jurisdiction is

Test Case 37/2010 Page 5 also emphasized by requirement of the executor and administrator of having to furnish an administrative and surety bond and further (Section 294) the requirement of keeping on record the original Will and its preservation. The continuing jurisdiction of the Court and its control over the administration of testator's estate is brought home by provisions in Chapters VI and VII of the Act; an executor or administrator can be removed (Section 301) similarly at any stage, the Court can for "just cause" annul a probate or letters of administration.

9. It is thus apparent that probate proceedings are special and are of a kind unlike other civil proceedings. This is intrinsically because of the nature of duties, rights and privileges created by the statute i.e. the Act. Significantly Section 295 of the Act states as follows:

"295. Procedure in contentious cases - In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant."

10. With this background, the Court now proposes to deal with the points referred for guidance of the trial court. As noticed earlier the Will in question had bequeathed the South Patel Nagar property to the testator's widow for her lifetime after which the ground floor construction was to be enjoyed by the third respondent and the terrace (and all further rights) were to devolve upon the petitioner. The third respondent had challenged the Will and preferred objections. The other immoveable property which is located at Ganganagar was, however, to devolve on both sons of the testator in equal shares. The testator's widow died during the pendency of the proceedings; she in turn had left behind a Will. In these circumstances, the testator's legal heirs entered into a compromise even before the matter proceeded to trial. The Court converted the probate proceedings into an ordinary suit and directed a decree to be drawn.

11. The question as to whether a compromise decree can be drawn in the manner done as in this case is not new. A similar issue has arisen for consideration before the Calcutta High Court, in Birendra Nath Banerjee and Ors. v. Shibaram Aditya and Ors. AIR 1952 Cal 473. In that case, the testator had bequeathed his properties in a particular manner to his heirs i.e. widow and his daughter. The Will had been proved and the daughter's appeal was rejected by the High Court. At that stage the parties entered into a settlement. Admittedly the estate had been encumbered. In these circumstances the question which the Calcutta High Court had to

Test Case 37/2010 Page 6 address was whether such a compromise decree in the course of a probate proceedings was legal. The court held that:

"The appeal to Privy Council filed by Avistakarini might or might not be successful. So the compromise was of doubtful claims. There is no suggestion that the compromise was not bona fide or that it was for the personal advantage of Rakhaldasi. The estate was also benefited in the sense that it was saved from the costs of appeal to the Privy Council. By the compromise Avistakarini was declared as having an absolute interest in the estate of her father. This absolute title was of the same nature as was given to her under the Will which had not been probated by this Court. This absolute title is therefore not dependent upon the Will but upon the family settlement as evidenced by Exs. S, T and 5. For these reasons it seems to us that the compromise was binding upon the reversioners. We are fortified in this view by the decisions of the Privy Council in the cases of 'KHUNNILAL v. GOVINDA KRISHNA', 38 Ind App 87 (PC); 'HIRAN BIBI v. SOHAN BIBI', 18 Cal W N 929 (PC) and 'RAMSUMRAN v. SHYAM KUMARI, 49 Ind App 342 (PC) and also by the decision of this Court in 'UPENDRANATH v. GURUPADA', 34 Cal W N 404 and 'MOHENDRANATH v. SHAMASUNNESSA', 21 Cal L J 157 which was approved by the Privy Council in 'RAMSUMRAN'S CASE'."

The question was again considered by the Patna High Court in Mutukdhari v. Smt. Prem Debi & Ors., AIR 1959 Pat 570, where it was held as follows :

"84. In a contentious proceeding, probate of letters of administration, as the case may be, may be granted in common form in consequence of a compromise between the disputants, resulting in the withdrawal of opposition. There can be no compromise of a probate case or a letters of administration case in accordance with the terms of a petition of compromise. The main issue in such a case is, whether or not the will has been proved. The only effect of a compromise is to reduce a contentious proceeding into one which is not contentious; but this does not absolve the court from the task of either granting probate or letters of administration or refusing it. If, therefore, a compromise has been made and the objector withdraws from the contest, the Court will make the grant in common form, if the will is proved, but it cannot dismiss the suit altogether and embody the terms of the compromise in his order so as to give it the force of a decree capable of execution."

12. The common thread which runs through the authorities apparently is that where the parties enter into an agreement or arrangement by which the requirement of having to prove the Will is sought to be done away with, and that such agreement is not consented to by all, the Court should not, as a matter of public policy, endorse the application for compromise. However, if the compromise is proceeded by proof of Will after following the procedure prescribed by law, and it incorporates the terms of the Will, it is open to the Court to act upon such compromise. This view was recollected by the Madras High Court in its recent decision reported as P.Jothi Bai Vs Dorairaj and Others, AIR 2002 Mad 191, in the following terms:

Test Case 37/2010 Page 7 "22. We entirely agree with the view taken by the learned Judges of the Allahabad High court. The compromise can be acted upon if the same was entered into by all the legal heirs of the testator. When all the legal heirs of the testator joined together and entered into the compromise, the same is binding on them by virtue of their agreement or arrangement. When a few had joined together and compromised the dispute, definitely the same will not be binding on others who are not parties to the compromise. In this case, the appellant being not a party to the compromise entered into between the respondents will not bind her."

13. This Court is also mindful of the general law relating to family settlements and the approach to promote as well as foster such settlements, as expressed by the Supreme Court in Kale Vs. Deputy Director Consolidation, 1976 (3) SCC 119.

14. As noticed earlier in this case before the trial court could proceed on the objections of the third respondent, parties entered into a family settlement which is a part of the record. Another event had occurred by then; the testator's widow, originally arrayed as the second respondent, had also died. Even before her death she had placed on record her No Objection the grant of probate. The memorandum of family settlement which is annexed to the application under Order 23 Rule 3 CPC, in its material portions (extracted above) affirms the Will and that all the legal heirs of the testator as well as parties to the probate proceedings had agreed to honour the compromise. Furthermore, the Court recorded their statements on 23.5.2009. All that the Court did was to convert the proceedings into an ordinary civil suit and direct that the decree ought to be drawn. Significantly the Court did not direct issuance of probate. Had that course of action been adopted, it could possibly have been urged that without formal proof of the Will a probate could not have been issued. Such, however, was not the case.

15. In the light of the above discussion, the reference is answered in the following terms :

Regarding Point No.1

Ans: A petition seeking probate of a Will can be treated as an ordinary civil suit by consent of parties. In the event of the parties seeking a probate as one of the reliefs however, the Court has to ensure that the formality of proving a will is duly complied with.

Regarding Point No.2

16. In the circumstances of this case the order of Court treating the proceedings as a civil suit was not contrary to law since all parties to the probate proceedings were heirs of the

Test Case 37/2010 Page 8 testator and further they had entered into a family settlement agreeing to abide by the terms of the Will and accepting it.

Regarding Point No.3

This question is unnecessary in view of the findings of issue no.2.

17. The reference is answered in the above terms. The Registry is directed to transmit the papers back to the Court of Learned Additional District Judge Shri Rajender Kumar Shastri (or his successor Court, as the case may be), for further proceedings to draw a decree.

18th August, 2010                                                   (S.RAVINDRA BHAT)

                                                                                JUDGE




Test Case 37/2010                                                                         Page 9