Delhi High Court
Sh. Vinod Kumar Deceased Thr. ... vs Shri Raju & Gaju on 5 September, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.10/1994
% 5th September, 2011
SH. VINOD KUMAR DECEASED THR. LEGAL HEIRS ...... Appellants
Through: None.
VERSUS
SHRI RAJU & GAJU ...... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the 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?
VALMIKI J. MEHTA, J (ORAL)
1. This case is effective item no. 2 on the Regular Board. No one
appears for the parties although it is 3:10 P.M. I have therefore perused
the record and am proceeding to dispose of the appeal.
2. The challenge by means of this first appeal under Section 299
and Section 384 of the Indian Succession Act, 1925 is to the impugned
judgment dated 20.8.1993 of the Probate Court, and by which judgment
the Probate Court allowed the petition for revocation of a probate under
Section 263 and 296 of the Act on the ground of fraud having been played
in obtaining the original order dated 25.5.1983 whereby the appellants
were granted letters of administration with respect to the estate of late
Sh. Rewati Prasad.
FAO No.10/1994 Page 1 of 5
3. The original petition for grant of letters of administration by
the appellants was filed without citing the petitioners in the petition for
revocation of the probate under Sections 263/296 of the Act as
respondent, although the petitioners Sh. Gajju and Sh. Raju both sons of
late Sh. Pokh Pal were liable to be cited being the sons of the brother of
the deceased Sh. Rewati Prasad. The deceased Sh. Rewati Prasad and Sh.
Pokh Pal were real brothers.
4. The Trial Court has allowed the petition for revocation of
probate as it was held that the original order granting letters of
administration dated 25.5.1983 was obtained by fraud inasmuch as the
respondents, Sh. Gajju and Sh.Raju were not cited as respondents in the
petition for letters of administration although, it was admitted that Sh.
Rewati Prasad died issueless. Sh. Rewati Prasad died leaving behind
properties being two houses at Delhi and one plot of land at Ghaziabad.
The Court below has referred to the admission of the appellants that
Rewati Prasad died issueless and yet, the respondents being the brother‟s
sons were not cited as respondents, although, they were persons directly
interested. The relevant findings and conclusions of the Trial Court are
contained in paras 8 to 11 of the impugned judgment and which read as
under:-
"8. Paras 6.7 and 8 of the present petition under
Section 263 of the Succession Act read as under:-
"6. That the deceased Revti Parshad had two
brothers namely, Moti Ram and Pokh Pal and both
the brothers had pre-deceased him".
FAO No.10/1994 Page 2 of 5
"7. That Sh. Revti Parshad had died issueless in
the year 1981. His wife had pre-deceased him.
Sh.Moti Ram had also died issueless".
"8. That Sh. Pokh Pal had four sons - Netra Pal,
Gajju, Raju and Dharam Pal and three daughters -
Kasturi, Naraini and Doly - (Netra pal, Kasturi,
Naraini from former wife)."
In reply to these averments, the grant of
the letters of administration have pleaded, as
under:-
"6. That para no.6 is not denied."
"7. That in reply to para no.7, through it is not
denied that Sh. Rewati Parshad died issueless, in
1981, and his wife had predeceased him, the
petitioners are not aware about Moti Ram."
"8. That para no.8 of the application is not
denied."
9. From these pleadings, it is clear that Shri Revti
Parshad had two brothers, namely, Shri Moti Ram and Shri
Pokh Pal, and both of them had pre-deceased Shri Revti
Parshad. It is also admitted that Shri Revti Parshad had
died issueless in the year 1981, and his wife had pre-
deceased him. It is also admitted that Shri Moti Ram, one
of the brothers had also pre-deceased him. It is also
admitted that Shri Pokh Pal, the 2nd brother had pre-
deceased him, leaving behind 4 sons, namely Shri Netar
Pal, Shri Gajju, Shri Raju and Shri Dharam Pal and three
daughters, namely Smt. Kasturi, Smt. Naraini and Smt.
Dolly. NO plea has been taken even here by the grantees
of the letters of administration that Shri REvti Parshad. In
para no.9 of the present application, it was further
pleaded that Shri Netar Pal had pre-deceased Pokh Pal
and Revti Parshad, and this fact has also not been denied
in the reply.
10. The position thus comes to that when Revti Parshad
had died, he had left behind Gajju, Raju and Dharam Pal-
three sons and Smt. Kasturi, Smt. Naraini and Smt.Dolly -
three daughters of his pre-deceased brother Pokh Pal and
two grand - sons, namely Shri Vinod Kumar and Shri
Ashok Kumar who are the sons of pre-deceased son Netra
Pal.
FAO No.10/1994 Page 3 of 5
11. None of the aforesaid heirs fall in Class - Iand
succession will devolve on the heirs of Class-II. These
were no heirs of category I , II and III. In Category - IV of
Class - II, the heirs comprise of :-
(1) Brother‟s son,
(2) Sister‟s son,
(3) Brother‟s daughter,
(4) Sister‟s daughter,
Thus, the claim of the present petitioners is better and
Superior to that of the original petitioners who had
claimed the letters of administration. Obviously, the
names of the legal heirs left behind by Shri Revti Parshad
had not been disclosed in the petition. Section 263 of the
India Succession Act provides that the grant of probate of
letters of administration may be revoked or annulled for
just cause."
5. In view of the aforesaid findings and conclusions contained in
paras 8 to 11, the Trial Court has in para 12 arrived at a conclusion that a
fraud was played when the letters of administration were originally
granted and therefore there was „just cause‟ in terms of Section 263 of
the Indian Succession Act, 1925 for revocation. I completely agree.
There was fraud played at the time of grant of the original orders for
letters of administration inasmuch as the respondents who were directly
and substantially interested were not made as parties and who were in
fact the heirs in law higher than the predecessor in interest of the
appellants who had applied for the letters of administration.
6. One more reason given by the Court below is that the Original
Court which granted the probate had no jurisdiction inasmuch as since
properties were situated not only within the territorial jurisdiction of Delhi,
but also in the territorial jurisdiction of another State, it was only the High
Court exercising civil jurisdiction which would have jurisdiction as the
FAO No.10/1994 Page 4 of 5
District Court had jurisdiction with respect to properties outside its
jurisdiction only provided the same were of the value only upto
Rs.10,000/-. The Court below has recorded that the value of the properties
has been assessed at Rs.17,000/- after the letters of administration were
granted. In any case, I need not dwell further on this aspect inasmuch as I
agree that fraud was practiced when the letters of administration were
originally granted inasmuch as the respondents herein who were in fact in
a category higher than the appellants under the schedule to the Hindu
Succession Act were deliberately not cited as parties to the original
petition for grant of letters of administration.
7. In view of the above, I do not find any merit in the appeal,
which is accordingly dismissed, leaving the parties to bear their costs.
SEPTEMBER 05, 2011 VALMIKI J. MEHTA, J.
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