BASANTI DEVI v. RAVIPRAKASH RAMPRASAD JAISWAL

Citation: [2007] 11 S.C.R. 444

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

BASANTI DEVI v. RAVIPRAKASH RAMPRASAD JAISWAL.pdf

Judgment text

BASANTI DEVI v. RAVIPRAKASH RAMPRASAD JAISWAL OCTOBER 12, 2007 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] Indian Succession Act, 1925: ss. 263 & 283(3)-Revoking ofprobate-Just cause-Held: Application for grant ofprobate is a proceeding in rem-Being a judgment in rem, a person, who is aggrieved thereby and having had no knowledge about the proceedings andproper citations having not been made, is entitled to file an application for revocation ofprobate on such grounds as may be available to him-Hindu. Succession Act, 1956-ss. 3(/), 8 & I5-Bombay High Court Rules-r. 683. A Will had been executed in favour of Respondent by a Hindu widow. Pursuantto her death, Respondent filed an application for grant ofprobate in relation to the Will which was granted by the High Court.

Appellant filed application for revocation of the said grant of probate, inter alia, on the premise that although she was one ofthe heirs ofthe said deceased widow, no citation was made and that furthermore, a Will had also been executed in her favour. A Single Judge ofthe High Courtdismissed the application for revocation ofprobate on the ground thatthough public noticewas issued before issuingthe probate, Appellant neitherfiled any caveatnorfiled any objection after the publication. Intra- Court appealflied thereagainst was dismissed by Division Bench ofthe said Court on the premise that Appellant, being an agnate, was not a legal heir ofthe deceased widow. Appellant contended before this Court that the H~gh Court committed a grave error insofar as it failed to take into consideration that an agnate is also an heir in terms ofthe provisions of the Hindu f BASANTI DEVI v. RAVIPRAKASH RAMPRASAD JAISWAL : - }' Succession Act, 1956.

It was furthermore contended that the said application should have been entertained having regard to Explan~tion (c) appended to Section 263 of the Indian Succession Act, 1925 irrespective of the fact as to whether the appellant had any notice of the probate ofthe said Will. The primary question which arose for consideration in the present appeal is whether an application under Section 263 of the Indian y SuccessionActfor revocation ofgrant ofprobatewould be maintainable, inter alia, on the premise that the Appellant's name was not cited in the ~ said application for grant ofprobate. Allowing the appeal and remitting the matlerto the ProbateCourt, this Court HELD: 1. Parliament enacted the Hindu Succession Act, 1956to amend and codify the law relatingto intestatesuccession amongHindus. Section 3(f) of the Hindu Succession Act defines 'heir' to mean any ...... person, male or female, who is entitled to succeed to the property ofan intestate under the Act.

Section 15 of the Act lays down the gene(al rules of succession in the case of female Hindus. For the purpose of ascertaining as to who would be heirs of the husband ifthe deceased did not leave any sons and daughters or husband; reference has to be made to Section 8 ofthe Act In view thereof, it is not correctto say that agnates of the deceased are not heirs. [Paras 11and12] 2. Also, in view ofRule 683 ofthe Bombay High Court Rules, it is ~r not correct to contend that no citation in regard to the heirs of the deceased Hindu widow was necessary. [Para 14) [453-A, BJ 3. 1. The properties left by the deceased widow were situated at two places, one in the State ofMaharashtra and another in the district ofPratapgarh in the State ofUttarPradesh. However, the Respondent1 for the reasons best known to him, did not, at the first instance, disclose ,-J, that any property belongingto the testator was situated ata place other', than theState ofMaharashtra.

Suchdisclosure was required to be made in terms ofsub-section (3) ofSection 283 ofthe Indian Succession Act. Citations were also required to be published by the concerned District t \_ 1' -- j Judge in terms thereof. In the application for amendment of the application, a vague statement was made. Even therein it was not disclosed that another property is situated in the District ofPratapgarh in the State ofUttarPradesh, the reason therefor is beyond anybody's comprehension. [Paras 14, 15and16] [453-B, C, D, E] 3. 2. The provisions contained in sub-section (3) ofSection 283 are mandatory in nature. Oncethe statutory requirements are found to have not been complied with, an application for revocation ofthe grant of ·---r probatewould be maintainable in terms ofSection 263 oftheAct, apart from the factthat non-publication ofcitation could beoneofthe grounds " to revoke the grant ofprobate. Explanation (c) appended thereto in a case ofthis nature would beattracted.

It may, therefore, be permissible for the appellant to show that a Will was executed by said deceased widow in her favour also. [Paras 17and18] [453-E, F; 454-B] 4. 1. Itwas contended that the appellant had given up the right to the property under the said Will. Even if that is so, this Court is not }concerned therewith at this stage. [Para 18) [454-B] 4. 2. Appellant had merelyfiled an application. The said application has not been entertained although the same should have been done. [Para 18] [454-C] 5. 1. The Probate Court exercises a limited jurisdiction. It is not concerned with the question oftitle. Butifthe probate has been granted subject to compliance of the provisions of the Act, an application for revocation would also lie. [Para 20] [454-F] 'i- 5. 2. An application for grant ofprobate is a proceedingin rem.

A probate when granted not only binds all the parties before the Court but also binds all other persons in all proceedings arising out ofthe Will or claims under or connected therewith. Being a judgment in rem, a person, who is aggrieved thereby and having had no knowledge about the proceedings and proper citations having not been made, is entitled to file an application for revocation ofprobate on such grounds as may be available to him. Therefore, the application for revocation of the t grant ofprobate should have been entertained. [Para 22) [455-D, E, F] lshwardeo Narain Singh v. Smt. Kamta Devi & Ors. , AIR (1954) SC 980 and Chiranjilal Shrilal Goenka v. Jasjit Singh & Ors. , [1993) 2 SCC 507, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4896 of 2007. From the final Judgment and Order dated 29. 8. 2006 of the High Court of Judicature at Bombay in Appeal No. 544 of 2006 in Misc. Petition No. 1/2000 in T. & 1. 1. Petition No. 73411996. Raju Ramachandran, Ar_un. K.

Sinha, Rakesh Singh and Mukesh Kumar Sinha for the Appellant. RP. Bhatt, Mukesh Kumar and Chirag M. Shrofffor the Respondent. The Judgment ofthe Court was delivered by S. B. SINHA, J. 1. Leave granted. 2. A short but interesting question which arises for consideration in this appeal is as to whether an application under Section 263 ofthe Indian Succession Act for revocation ofgrant ofprobate would be maintainable, inter alia, on the premise that the appellant's name was not cited in the said application for grant ofprobate. 3. The basic fact ofthe matter is not in dispute. 4. A Will was executed by one Lakhpati Devi widow of late Mahadeo Jaiswal in favour ofthe respondent herein who was one ofthe grand sons of late Bhagwatidina, one of the brothers of late Mahadeo Prasad. Appellant herein claimed that the said Lakhpati Devi had executed another will on or about 12. 3. 1996. The said Lakhpati Devi admittedly expired on 13. 03. 1996.

Whereas the appellant did not file any application for grant of probate in relation to the aforementioned will dated 12. 03. 1996, the respondent did so on 6. 9. 1996. In the said application, it was contended that the properties under the Will are situated in Bombay stating: "That the said deceased at the time ofher death had a fixed place of abode at Room No. 10-11, Bharat Building, Sonapur Lane, Chira Bazar, Mumbai - 400 002 and left property within Greater Bombay in the State of Maharashtra. " It was furthermore stated : "That no application has been made to any District Court or District Delegate or to any other High Court for probate ofany will ofthe said deceased or for Letter of Administration with or without the ·-r Will annexed to her property and credits. " 5. However, an application for amendment ofthe application for grant of probate was filed in the said testamen_tary proceedings which was allowed.

On the basis of the averments made by the respondent in the amended application, citations were published only at Bombay on 28. 1. 1997. Respondent, however, filed an application for amendment of the petition for grant ofprobate on 21. 03. 1997, inter alia, stating : "That the said deceased at the time ofher death had a fixed place of abode at Room No. I0-11, Bharat Building, Sonapur Lane, Chira Bazar, Mumbai -400 002 and left property within Greater Bombay in the State of Maharashtra and elsewhere in Union of India. " It was, therefore, not disclosed at what other places the properties are situated. 6. It was furthermore averred that there was no heir known to the petitioner on the side ofhusband ofthe deceased. The schedule ofassets allegedly left by the deceased was also inserted in the schedule of the properties stating : 1.

All that piece and parcel of pension tax land of ground (since redeemed) with the messauges tentament or dwelling house standing thereon situate lying behind at Sonapur Street Girgaum Road outside the Fort of Bombay in the Registration Sub- District ofBombay in the land ofthe Bombay contained by admeasurement 243 )two hundred and forty three) square yards or thereabouts and registered in the Books of Collector New No. 980 New Survey No. 8158 and Cadastral Survey No. 567 of Bhuleshwar Division and in the books ofthe Collector of Municipal Rates and Taxes under (C) wards No. 3385 and Street No. 6 and bounded as follows : that is to say on or towards the East by the_properties bearings Cadastral Survey Nos. 570, 571, 572, 573 and 574 on or towards the west partly by the properties bearing Cadastral Survey No. 565 and 566 and partly by a passage on or towards the north by the property bearing Cadastral Survey No. 568 and or towards the south by the Sonapur Street Valued at Rs.

1,00,000/- Accrued gross rent ofthe above immoveable property from the date ofdeath till filing of this petition Rs. 7,500/- 2. S. B. Ale No. 21416 with Bank of India, Kolabadevi Branch Mombai-2 standing in the name ofdeceased with accrued interest upto date offiling this petition Rs. 1,000/- 3. Amount standing to the credit of the deceased in current Ale No. 31080 with Bank of India Kolabadi Branch Mumbai standing in the name of M/s Mahadeo forthwith in which deceased was sole Proprietor Rs. 3,000/- 4. The Milk shop being shop No. I/I I situated at Bharat Building Sonapur lane Chira Bazar Mumbai-2 currently infrastructure in the name & style of Mahadeo farm : together with valued at Rs. 50,0001- IN THE STATE OF UTTAR PRADESH 5. One open piece ofland situate at Dist. Pratap Gad, Village-Mahadeo Nagar, (lJ. P. ) Valuedat Rs. 1,000/- The above plot does not fetch any rent of income. TOTAL Rs. 1,62,500/- 7. However, no citation was made in the State ofUttar Pradesh.

A probate was granted in favour of the respondent by the High Court by order dated 7. 4. 1997. An application for revocation ofthe said grant of probate was made by the petitioner herein, inter alia, on the premise that although she was one ofthe heirs ofthe said Lakhpati Devi, no citation was made. Furthermore, a Will had also been executed in her favour. 8. A learned Single Judge ofthe Bombay High Court dismissed the application for revocation of probate filed by the petitioner which was marked as Miscellaneous Petition No. I of2000 by a judgment and order dated 23. 6. 1996 opining: "The requirements for letter ofadministration and grant ofprobate are different. It is an admitted position that public notice was issued before issuing a probate. The petitioner neither filed any caveat nor filed any objection after the publication. Therefore, this petition does not survive for consideration. " 8.

On an intra court appeal having been preferred thereagairist, a Division Bench ofthe said Court, on the premise that the appellant was not legal heir ofthe deceased being an agnate, dismissed the same. 9. Mr. Raju Ramachandran, learned senior counsel appearing on behalf of the appellant, inter alia, would submit that the High Court committed a grave error in passing the impugned judgment insofar as it failed to take into consideration that an agnate is also an heir in tenns of the provisions ofthe Hindu Succession Act. It was furthermore contended J ' - ) that the said application should have been entertained also having regard to Explanation (c) appended to Section 263 ofthe Indian Succession Act irrespective ofthe fact as to whether the appellant had any notice ofthe probate ofthe said Will or not.

Even on the ground ofnon-compliance of the requirement of Sub-section (3) of Section 283 of the Indian Succession Act, the learned counsel would contend, probate was granted without complying with the requirements oflaw. "' 10. Husband oflate Lakhpati Devi late Mahadeo Prasad was one y ofthe five sons ofVindeshwari Prasad-Ganesh Jaiswal; his brothers being late Bhagwatidina, late Gayadin, late Mahavir Prasad and late Kailash. Late Bhagwatidina had three sons, namely, late Mata Prasad, late Ram Prasad and late Moti Lal. Respondent herein is one ofthe sons of late Rama Prasad. Late Ramaprasad died leaving behind his widow Sursati and three sons, Suresh, Ramesh and Ravi Prakash (Respondent). Other brothers ofMahadeo Prasad have died leaving behind their respective heirs and legal representatives. Late Mahabir Prasad had six sons. Appellant is widow of late Harihar Prasad, one ofthe sons; other sons ... being being late Ganga Prasad, Jamuna Prasad, Babulal, Late Amrit Lal and Surya Lal.

11. Parliament enacted"the Hindu Succession Act, 1956 to amend and codify the law relating to intestate succession among Hindus. Section 3(f) ofthe Hindu Succession Act defines "heir" to mean any person, male or female, who is entitled to succeed to the property ofan intestate under the Act. Section 15 of the Act lays down the general rules ofsuccession in the case offemale Hindus in the following terms : "15. General rules of succession in the case offemale _'Ir' Hindus. -{1 )The property ofa female Hindu dying intestate shall devolve according to the rules set out in section 16. - (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs ofthe husband; ,,J (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs ofthe father; and (e) lastly, upon the heirs ofthe mother.

(2) Notwithstanding anything contained in sub-section (1),-- (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter ofthe deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in subsection (1) in the order specified therein, but upon the heirs ofthe father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence ofany son or daughter ofthe deceased (including the children ofany pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs ofthe husband. " 12. For the purpose ofascertaining as to who would be heirs ofthe husband ifthe deceased did not leave any sons and daughters or husband; reference has to be made to Section 8 ofthe Act which reads as under: "Section 8. General rules ofsuccession in the case ofmales. -.

The property of a male Hindu dying intestate shall devolve according to the provisions ofthis Chapter- (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, ifthere is no heir ofclass I, then upon the heirs, being the relatives specified in class II ofthe Schedule; (c) thirdly, ifthere is no heir ofany ofthe two classes, then upon ~ \ the agnates ofthe deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. " It is, therefore, not correct to say that agnates ofthe deceased are not heirs. >- -. 13. Mr. R. P. Bhatt, senior counsel appearing on behalf of the respondent, however, would contend that in terms ofthe Rules framed by the Bombay High Court, it was not necessary to make any citation in the State of Uttar Pradesh. Rule 683 of the Bombay High Court Rules reads as under : "683. Notice to next-of-kin - In all applications for Probate, Letters ofAdministration and Succession Certificate, Notice oftii.

e application shall be given to all the heirs and next-of-kin ofthe deceased mentioned in the Petition except to those whose consent has been filed in the proceedings. " 14. It is, therefore, not correct to contend that no citation in regard to the heirs ofLakhpati Devi was necessary. The properties left by the deceased Lakhpati Devi were situated at two places, one in the State of C Maharashtra and another in the district ofPratapgarh in the State ofUttar Pradesh. 15. We have noticed hereinbefore that the respondent, for the reasons best known to him, did not, at the first instance, disclose that any property belonging to the testator was situated at a place other than the State ofMaharashtra. Such disclosure was required to be made in terms of sub-section (3) of Section 283. Citations were also required to be published by the concerned District Judge in terms thereof. 16. In the application for amendment of the application, a vague statement was made.

Even therein it was not disclosed that another property is situated in the District of Pratapgarh in the State of Uttar Pradesh, the reason therefor is beyond anybody's comprehension. 17. The provisions contained in sub-section (3) ofSection 283 are mandatory in nature. Once the statutory requirements are found to have not been complied with, an application for revocation of the grant of probate would be maintainable in terms of Section 263 ofthe Act, apart from the fact that non-publication ofcitation could be one ofthe ground to revoke the grant of probate. Explanation (c) appended thereto in case of this nature would be attracted. The said provision reads thus : 263. Revocation or annulment for just cause. -The grant of probate or letters ofadministration may be revoked or annuleed for just cause. Explanation. -Just cause shall be deemed to exist where- (a) & (b) ...

(c) the grant was obtained by means ofan untrue allegation ofa fact essential in point oflaw to justify the grant, though such allegation was made in ignorance or inadvertently; or (d) to (e) ... " 18. It may, therefore, be permissible for the appellant to show that a Will was executed by said Lakhpati Devi in her favour also on 12. 03. 1996. Mr. Bhat contends that the appellant had given up the right to the property under the said Will. Even if that is so, this Court is not concerned therewith at this stage. Appellant had merely filed an application. The said application has not been entertained although the same, in our opinion, should have been done. The question, therefore, is as to whether the said application should have been entertained. 19. Reliance has been placed by Mr. Bhat on a decision ofthis Court · in Ishwardeo Narain Singh v. Smt. Kamta Devi & Ors.

, AIR (1954) SC 980 wherein, inter alia, it was held : +· "The Court ofProbate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview ofthe probate Court. " 20. The Probate Court, indisputably, exercises a limited jurisdiction. It is not concerned with the question oftitle. But ifthe probate has been "'·granted subject to compliance ofthe provisions ofthe Act, an application for revocation would also lie. 21. In Chiranjilal Shrilal Goenka v. Jasjit Singh & . Ors. , [1993] 2 SCC 507, whereupon again Mr.

Bhat relied upon, this Court held : "On a conspectus of the above legal scenario we conclude that_ the Probate Court has been conferred with exclusive jurisdiction to grant probate ofthe will ofthe deceased annexed to the petition (suit); on grant ofrefusal 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 depdves the parties ofstatutory right ofappeal 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 ~he parties, to adjudicate upon the proof or validity of the Will propounded by the executrix, the applicant.

It is already seen that the executrix was nominated expressly in the will is a legal representative entitled to represent the Estate ofthe deceased ~ut the heirs cannot get any probate before the Probate Court. They are entitled only to resist the claim ofthe executrix ofthe execution and genuineness ofthe Will. The grant ofprobate gives the executrix the right to represent the estate ofthe deceased, the subject-ma~er in other proceedings. We make it clear that our exposition oflaw D is only for the purpose offinding the jurisdiction ofthe arbitrator and not an expression ofopinion on merits in the "probate suit''. " 22. It is now well settled that an application for grant ofprobate is a proceeding in rem. A probate when granted not only binds all the parties before the Court but also binds all other persons in all proceedings arisiJl. g out ofthe Will or claims under or connected therewith.

Being ajudgment in rem, a person, who is aggrieved thereby and having had no knowledge about the proceedings and proper citations having not been made, is entitled to file an application for revocation ofprobate on such grounds as may be available to him. We are, therefore, of the opinion that the application for revocation of the grant of probate should have been entertained. 23. The impugned judgment, therefore, is set aside and the appeal is allowed and the matter is remitted to the learned Single Judge ofth~ Probate Court with costs. However, we make it clear that we have not entered the merit ofthe matter. B. B. B. Appeal allowed.