Delhi High Court

Siri Kishan Gupta vs State & Ors. on 7 September, 2012

Author: Valmiki J. Mehta

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              TEST CAS. 40/2002

%                                                    7th September, 2012


SIRI KISHAN GUPTA                          ..... Petitioner
                               Through:   Mr. S.N. Kumar, Advocate with Mr.
                                          S.K. Gupta, Advocate.

                      versus


STATE & ORS.                        CF+               ..... Respondents

Through: Mr. Pradeep Dewan, Senior Advocate with Ms. Anupam Dhingra, Advocate for respondent No.7.

Mr. Ravi Gupta, Senior Advocate with Mr. P.R. Aggarwal, Advocate and Mr. Naveen Gupta, Advocate for respondent No.8.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

I.A. No.8972/2012 (under Order 12 Rule 6 CPC by respondent No.8) and Test Case No.40/2002

1. This is an application filed under Order 12 Rule 6 of Code of

Civil Procedure, 1908 (CPC) on behalf of respondent No.8 for dismissing

the probate petition on admitted facts. The present probate petition has been

filed with respect to a Will dated 27.6.1984 of the deceased late Sh.

Balmukand Gupta.

2. In the application, respondent No.8/applicant states that in fact

Sh. Balmukand Gupta had left a Will dated 6.6.1984 and which Will was

probated by this Court in probate case No.72/1985. In the application, it is

further stated that pursuant to the grant of the probate, the estate has been

administered and all the parties, including the beneficiaries to the Will as

propounded in the present case, have received their shares. It is necessary,

at this stage, to refer to paras 12 and 13 of the present application under

Order 12 Rule 6 CPC and the same read as under:-

"12. That after the grant of the probate by this Hon‟ble Court vide judgment dated 14.07.1986 in probate proceedings no.72/1985 the estate of the deceased was duly administered by the executant Shri Gopi Chand Gupta.

13. That it is a matter of record that after the grant of Probate Certificate the estate of the deceased stands duly administered and all the beneficiaries have already used and enjoyed their respective benefits under the said Will dated 06.06.1984 and now no estate of the deceased Shri Balmukand Gupta remains to be administered. The following are the details disclosing as to how the estate of the deceased Shri Balmukand Gupta, after having been administered have exchange hands long back:-

a. Moveable properties including shares of M/s Madras Rubber Ltd., Bank Balances with Union Bank of India, Canara Bank, Bonds with Reserve Bank of India, amounts deposited with M/s Radhey Shyam Rattan Lal, have been duly received and encashed by Smt. Premwati Gupta- the widow of the deceased,

in terms of the Will dated 06.06.1984.

b. Godown no. 66 B, Gadodia Market, Khari Baoli, Delhi which was bequeathed to Smt. Shashi Gupta the respondent no.6 herein was sold and transferred by her in favour of one Smt. Indu Jain by means of a duly executed and registered Sale Deed dated 22.3.1991. A copy of the said Sale Deed is annexed herewith and market as Annexure-G. A perusal of the said Sale Deed would go to show that the said Sale Deed has been executed by Smt. Shashi Gupta, claiming herself to be the sole and absolute owner of the said godown on the basis of the last and final Will dated 06.06.1984 of her father Late Shri Balmukund Gupta.

c. Godown No. 56A, Gadodia Market, Khari Baoli, Delhi which was bequeathed to Smt. Savita Goel and Smt. Sushma Gupta, the respondent nos. 3 and 4 herein, was after the grant of the probate certificate was rented out by them to the tenants claiming themselves to be the owners of the said Godown on the basis of the last and final Will dated 06.06.1984 of the deceased Shri Balmukund Gupta. Later on the said godown had been sold/transferred by the said two daughters of the deceased on the basis of the said Will dated 06.06.1984 only.

d. 1/3rd share in the House No. K-27/A, Hauz Khas, New Delhi which was bequeathed to Shri Rattan Lal, the respondent no.8/applicant herein, after the said grant of probate was got mutated by him in his favour in the records of Municipal Corporation of Delhi. Subsequently the said House has also been sold and transferred by the applicant in favour of M/s Indralok Orchids and Estates, who are now in possession and control thereof and the present applicant has been left with no interest therein.

e. 1/3rd share in the House No. 21, Banarsi Dass Estate, Delhi-

110007 which was bequeathed in favour of Smt. Premwati/respondent no.2 herein was mutated/transferred in her favour. After her death the respondent no. 3 to 6 being the daughters of the respondent no.2 are the owners of the said property and are using and enjoying the same of their benefits."

3. The petitioner has replied to these paras by stating as under:-

"10-12 Contents of paragraphs 1 to 12(sic 10 to 12) are matters of record"

4. I must state that the Supreme Court in the case of Uttam Singh

Duggal and Co. Ltd. Vs. United Bank of India and Ors. (2000) 7 SCC 120

has held that the expressions „pleadings‟ as contained in Order 12 Rule 6

CPC will include pleadings in the application under Order 12 Rule 6 CPC.

5. I may also note that respondent Nos.2 to 6 in the present case,

and for whose benefit the present petition is filed by the executors (executors

are non-beneficiaries), were parties to the earlier probate petition

No.72/1985. They appeared in those proceedings, did not contest and

thereafter the probate petition No.72/1985 was disposed of by the judgment

dated 14.7.1986. Evidence was led in probate case No.72/1985 before

probate was granted. The present probate petition has been filed by two

persons who claim to be the executors under the Will dated 27.6.1984. As

already stated, the executors/petitioners are not beneficiaries of the Will

dated 27.6.1984.

6. As per Section 273 of the Indian Succession Act, 1925 a

probate once granted is final with respect to the estate of the deceased.

Judgments in probate cases are judgments in rem. Section 273 of the Indian

Succession Act, 1925 reads as under:-

"Section 273. Conclusiveness of probate or letters of administration.- Probate or letters of administration shall have effect over all the property and estate, movable or immovable, of the deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted:

Provided that probates and letters of administration granted-

(a)by a High Court, or

(b) by a District Judge, where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge, and such Judge certifies that the value of the property and estate affected beyond the limits of the State does not exceed ten thousand rupees."

7. The only way in which the probate granted can be revoked is by

means of filing a petition under Section 263 of the Indian Succession Act,

1925 and which provision reads as under:-

"Section 263. Revocation or annulment for just cause.- The grant of probate or letters of administration may be revoked or annulled for just cause. Explanation.-Just cause shall be deemed to exist where-

(a) the proceedings to obtain the grant were defective in substance; or

(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or

(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or

(d) the grant has become useless and inoperative through circumstances; or

(e) the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect."

8. It is not disputed as per the pleadings of the present application

that beneficiaries of the Will which is propounded in the present probate

petition have already applied for revocation of the probate of the judgment

dated 14.7.1986 allowing the probate petition No.72/1985. Of course, what

would be the effect of the same, I need not comment upon inasmuch as, as

noted above the beneficiaries of the present Will dated 27.6.1984 were

already parties and had appeared in the earlier proceedings before the

judgment dated 14.7.1986 was delivered.

9. This probate petition is filed almost 16 years after the grant of

probate in the earlier petition No.72/1985 and after probate granted has been

duly/fully administered including by granting the beneficiaries the shares in

terms of the probated Will and which beneficiaries are also beneficiaries of