Delhi High Court
Rakesh Bhan vs Bawa Kripal Singh & Anr on 19 February, 2010
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P. 50/2009
Date of decision : 19.02.2010
IN THE MATTER OF :
RAKESH BHAN ..... Petitioner
Through: Mr. Amit Trikha, Advocate
versus
BAWA KRIPAL SINGH & ANR ..... Respondents
Through: Mr. S.Ghosh, Advocate for R-2.
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may Yes
be allowed to see the Judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
HIMA KOHLI, J. (ORAL)
1. The present revision petition is directed against an order
dated 28.02.2009 passed by the learned ADJ, allowing an application
filed by the respondent No.2 (respondent No.6 in the court below)
wherein, she sought her transposition as a petitioner in place of Late
Shri Bawa Kirpal Singh, the petitioner in the probate petition, who was
appointed as the executor of a will dated 02.01.1994, executed by
Late Dr.R.K. Bhan. By the impugned order, the aforesaid application
filed by the respondent No.2 was allowed and she was permitted to be
transposed as a petitioner in the pending probate proceedings with
directions to file the amended petition.
2. After the aforesaid order was passed, respondent No.2 filed
the amended petition wherein she sought grant of letters of
administration in her favour, with respect to the estate of Late Dr.R.K.
Bhan. Replies to the aforesaid amended petition have also been filed
by the petitioner herein (respondent No.7 in the court below) and the
other respondents. Copy of the amended petition and the reply is
handed over by the counsel for respondent No.2 in the Court and is
taken on record.
3. Counsel for the petitioner states that in view of the
provision of Section 222 of the Indian Succession Act, 1925
(hereinafter referred to as „the Act‟), probate can only be granted in
favour of the executor, appointed by the Will and in the present case,
the sole executor having expired on 09.08.2008, the proceedings
stand abated. He seeks to draw support from a judgment of a Division
Bench of Bombay High Court in the case of Thrity Sam Shroff vs.
Shiraz Byramji Anklesaria & Anr. reported as AIR 2007 Bombay 103
and of a Single Judge of this Court in the case of Inder Chand Nayyar
vs. Sarvadeshik Arya Pratinidhi Sabha & Anr. reported as AIR 1977
Delhi 34. Per contra, counsel for respondent No.2 relies on the
provisions of Section 232 of the Act and submits that in the present
case, his client is entitled to grant of letters of administration in
respect of the will in question.
4. A perusal of the application filed by respondent No.2 shows
that a prayer was made by her for being transposed as a petitioner in
place of the deceased petitioner, Late Shri Bawa Kirpal Singh.
However, no specific prayer was made by the respondent No.2, for
converting the proceedings from a probate petition to a petition for
grant of letters of administration, nor was an amendment of the prayer
clause sought by her. Therefore, strictly speaking, the amended
petition filed by respondent No.2 pursuant to the impugned order, is
beyond the scope of the amendment sought in the application or
granted by the court below. Pertinently, the said objection was not
taken either by the petitioner herein (respondent No.7 in the court
below) or by Smt. Lila Bhan and Smt. Sunita Kaul (contesting
respondents No.2-A and 2-C in the court below).
5. It is an undisputed position that had the respondent No.2
filed a substantive application before the trial court, not only seeking
her transposition as the petitioner, but seeking grant of letters of
administration instead of a probate in respect of the Will dated
02.01.1994 executed by Late Dr.R.K.Bhan, the amended petition as
filed by her on 02.04.2009 could be entertained. But in the absence of
such a prayer, no leave was granted vide order dated 28.2.2009 to
convert the probate petition to a petition for grant of letters of
administration. Hence, respondent No.2 acted beyond the scope of
the amendment granted in her favour by the impugned order.
6. The aforesaid technical flaw can however be overcome even
at this stage. In the case of Harbans Singh vs. State & Ors. reported
as 2010 II AD (Del) 191, decided by this Court on 19.1.2010, when
confronted with similar facts where the petitioner therein challenged
the order of the learned ADJ by which he allowed the application of the
respondents therein for permission to be substituted in place of the
original petitioner/executor of the Will and the beneficiary thereunder,
notice was taken of a judgment in the case of "Hari Pada Shaha vs.
Gobinda Chandra Shaha" reported as (1948) ILR 1 Calcutta 300. In
the said judgment, a Division Bench of the Calcutta High Court held
that the proper thing for the respondents therein to have done was not
to apply to continue the proceedings as substituted heirs of the
deceased executor, but to have filed a fresh application praying for
letters of administration with a copy of the will annexed as her heirs
and personal representatives. It was further observed that as the said
objection about the application being defective was raised at the end
of the probate proceedings, when arguments were being addressed, to
obviate all disputes and ambiguity, it would have been proper for the
respondents to have filed an application seeking amendment of the
prayer clause in the petition by making a request that the same be
treated as one for letters of administration, either as heirs of the
deceased executor, or independently in their own rights.
7. In the present case, counsels for the parties state that the
matter is at an advance stage. The probate petition was filed in the
year 1997. After pleadings were completed, issues were duly framed
and thereafter, the original petitioner/executor had adduced evidence
of all the witnesses except for one witness. The said witnesses were
duly cross-examined by the petitioner herein(respondent No.7 in the
court below) and by the remaining legal heirs of respondent No.2, Late
Col. O.N. Bhan. It was at this stage that the petitioner in the probate
petition/executor, Shri Bawa Kirpal Singh expired, resulting in filing of
an application for transposition by the respondent No.2. The prayer
made in the amended petition filed by respondent No.2 is for grant of
letters of administration. Replies to the said petition have already
been filed. In other words, the petition is at an advance stage of
recording of remaining evidence, whereafter, arguments are left to be
addressed by the parties. At this stage, counsel for the petitioner
states that subject to a clarification that the amended petition filed by
respondent No.2 is for grant of letters of administration, the matter
can be taken further.
8. Considering the vintage of the case and the fact that it is at
an advance stage, where only the cross-examination of one witness
produced by the original petitioner and the evidence of respondent
No.2 herein is pending, with the consent of the parties, the present
petition is disposed of on the following terms:
(i) The amended petition filed by respondent No.2 for grant of
letters of administration in respect of the estate of Late
Dr.R.K.Bhan, is accepted and permitted to be taken on
record.
(ii) To obviate any confusion, the respondent No.2 shall file a
fresh amended memo of parties, by impleading respondent
No.7 (petitioner herein) as respondent No.6, within one
week.
(iii) As the pleadings qua the amended petition are complete,
the trial court shall be at liberty to amend the issues in the
light of the amended petition and thereafter, the remaining
cross-examination of one witness shall be completed and
respondent No.2 shall lead her evidence.
9. As counsels for the parties state that the matter is listed
before the trial court on 25th March, 2010, list before the said Court on
10th March, 2010, for directions.
10. Copy of this order be sent by the Registry forthwith to the
trial court for perusal and compliance.
11. The revision petition is disposed of.
(HIMA KOHLI)
JUDGE
FEBRUARY 19, 2010
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