SUNIL GUPTA v. KIRAN GIRHOTRA AND ORS

Citation: [2007] 10 S.C.R. 827

Court: Supreme Court of India

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

Case summary

SUNIL GUPTA v. KIRAN GIRHOTRA AND ORS.pdf

Judgment text

) SUNILGUPTA v. KIRAN GIRHOTRA AND ORS. OCTOBER 9, 2007 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] Succession Act, 1925-ss. 263 and 283-Probateproceedings- Jmpleadment ofpurc~aser ofproperty belonging to testator as a necessary party-Entitlement of-Held: Transferee ofproperty during pendency ofproceedings is not a necessary party-Citation are necessary to be made to only ofthose who, claim through or under the Will or deny or dispute execution thereof-Onfacts, purchaser and! or hispredecessor, ofthe propertyforming subject matter ofWill, took risk of the result of the probate proceedings before purchasing properties, as such is not a necessary party-Thus, purchaser not entitled to be impleaded in the probate proceedings. HB executed a Will on 09. 09. 1997. Respondent-HB's daughters filed application for grant of probate. Sons ofHB filed objections thereto. Son RK submitted another Will ofHB, allegedly executed on 30. 10. 1997.

RK executed sale deeds in favour ofAP with regard to the properties forming subject matter of grant under the Will. '"' Neither probate nor objection from other legal heirs was obtained in respect ofWill dated 30. 10. 1997. AP entered into sale agreement in respect of the properties. Appellant, successor of AP filed application for impleadment in the probate proceedings. Application was allowed. However, High Court set aside the order. Hence the present appeal. ) Dismissing the appeal, the Court HELD: 1 A transferee ofa property during the pendency ofa proceeding is not a necessary party. Citations are necessary to be made to only ofthose who, inter alia, claim through or under the Will or deny or dispute the execution thereof. Citation should be conspicuously displayed on a notice board. Even otherwise ordinarily transferee pendent lite without leave of the court cannot be impleaded as a party. Further, plaintiffin the suit is the dominus litis.

Ifhe intends to take a calculated risk in the matter, the court may not exercise its discretionary jurisdiction. (Paras 13, 17, 20 and 21] [832-G; 833-C; 834-C-D] 2. 1. Sons of late HB had entered Caveats. Their objections would be considered in the probate proceedings. RK is not only opposing grant ofprobate in favour ofthe respondents in respect of the Will dated 09. 09. 1997; but he himselfis said to be claiming under Will executed by late HB on 30. 10. 1997. RK evidently was aware of the proceedings. Ifa proceeding had been initiated for grant of probate, appellant and/or his predecessor, AP would be deemed to have notice thereof. Before purchasing the properties, AP and consequently the appellant had taken a calculated risk. In a situation of this nature, he is not a necessary party. He took the risk of the result ofthe probate proceedings. His apprehensions that RK may not take any interest in the litigation cannot by itself be a ground for interferingwith the impugned judgment.

Itis speculative in nature. More so, the appellants are only the speculators who had purchased litigated properties. (Paras 12, 14, 16 and 17] [832-E-F; 833-B, C, D; 833-A] 2. 2. High Court in its impugned judgment has noticed that the y attesting witnesses of the Will had already been examined. Ifthe appellant is impleaded as a party, the clock would be put back. [Paras 14] [832-H] Banwarilal Shrinilms v. Kwnari Kusum Bai andOrs. , AIR (1973) MP 69; Seth Beni Chand (since Dead) Now by L. Rs. v. Smt. Kamla Kunwar and Ors. , [1976] 4 SCC 554; Bibi Zubaida Khatoon v. Nabi Hassan Saheb andAnr. , [2004] 1 SCC 191; Kasturi v. Jyyamperumal and Ors. , [2005] 6 SCC 733; Dhannalal v. Kalawatibai and Ors. , [2002] 6 SCC 1 and Indian Associates v. Shivendra bahadur Singh & Ors. , 104 (2003) DLT 820, referred to. ) CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4729 of 2007. From the Judgment and final Order dated 31. 08. 2006 & 13. 11. 2006 ofthe High Court ofDelhi at New Delhi in Civil Misc.

(Main) No. 285 of2006 & Review Petition No. 393 of2006 respectively. WITH Contempt Petition (C) No. 270/2007. Raju Ramachandran and Meenakshi Arora for the Appellant. O. P. Khadaria (for Mitter & Co. ) for the Respondents and Indra, Respondent No. 4, In-Person. The Judgment ofthe Court was delivered by S. B. SINHA, J. 1. Leave granted. 2. The question as to whether a purchaser ofa property belonging to the deceased testator should be impleaded as a party in a probate proceedings is the question involved in this appeal which arises out of judgments and orders dated 31. 08. 2006 in C. M. (Main) No. 285 of2005 and 13. 11. 2006 passed in Review Petition No. 393 of2006 by a learned Single Judge ofthe Delhi High Court. 3. The property in question admittedly belonged to one Har Bhagwan. He died on 03 . 11. 1997. He was survived by his wife, four ·-. ; daughters and two sons. Respondents herein are daughters of the said Har Bhagwan. One ofthe sons of Har Bhagwan was Raj Kumar.

Wife ofHar Bhagwan has passed away. Allegedly, another son ofHar Bhagwan was given in adoption. 4. Har Bhagwan executed a Will on 09. 09. 1997. Respondents herein ) are the beneficiaries thereof. They filed an application for grant ofprobate in the year 2000. Both the sons ofHar Bhagwan filed objections thereto. Raj Kumar propounded another Will ofthe said Har Bhagwan which was allegedly executed on 30. 10. 1997. Indisputably, Raj Kun1ar executed two deeds of sale dated 20. 06. 2003 and 27. 06. 2003 in favour of one Amit Pahwa. The properties purported to have been transferred by reason of \ ~/ \ the said deeds ofsale forming subject-matter ofthe grant under the Will. No probate was obtained in respect ofthe said Will dated 30. 10. 1997. Even no objection from other legal heirs of the late Har Bhagwan was obtained. Immediately after execution ofthe said deeds, the said Amit Pahwa entered into an agreement to sell dated 25. 07. 2003 in respect of one ofthe properties.

In furtherance thereto, a purported deed ofsale is said to have been executed in respect of the other property on 29. 08. 2003. 5. Appellant herein filed an application for his impleadment in the said probate proceedings. It was allowed by an order dated 24. 12. 2004. By reason of the impugned judgment, the High Court has reversed the said judgment and order on an application filed under Article 227 ofthe Constitution oflndia by the respondents herein. 6. Mr. Raju Ramachandran, learned Senior Counsel appearing on behalfofthe appellant, in support of the appeal, would submit that the High Court committed a serious error insofar as it failed to take into r consideration that in a proceeding under the Indian Succession Act, 1925, (for short, 'the Act') the court should always make an endeavour to avoid multiplicity ofproceedings. It was contended that the court's power to implead a party, who, strito sensu, may not be a necessary party is wide.

Strong reliance in this behalfhas been placed on a decision in Banwarilal Shriniwas v. Kumari Kusum Bai and Ors. , AIR (1973) MP 69 as also in Seth Beni Chand (since Dead) Now by L. Rs. v. Smt. Kam/a Kunwar and Ors. , [1976] 4 SCC 554]. 7. Mr. O. P. Khadaria, learned counsel appearing on behalf of Respondent Nos. 1to 3 and Respondent No. 4, who appeared in person, on the other hand, submitted that the appellant is not a necessary party to the proceeding and, thus, the impugned judgment should not be interfered with. 8. Chapter I of Pai1 IX of the Act provides for grant of Probate and/or Letters of Administration. A probate can be granted only to an executor appointed by the Will. Chapter III of the Act provides for revocation or annulment for just cause. Illustration appended to Section 263 of the Act reads as under : ) "Illustration (i) The Court by which the grant was made had no jurisdiction. (ii) The grant was made without citing parties who ought to have been cited.

(ill) The will of which probate was obtained was forged or revoked. (iv) A obtained letters of administration to the estate of B, as his widow, but it has since transpired that she was never married to him. (v) A has been taken administration to the estate of B as if he had died intestate, but a will has since been discovered. (vi) Since probate was granted, a latter will has been discovered. (vii) Since probate was granted, a codicil has been discovered which revokes or adds to the appointment ofexecutors under the will. (viii) The person to whom probate was, or letters ofadministration were, granted has subsequently become ofunsound mind. " 9. Illustra'tion (ii) provides for revocation ofgrant ifmade without citing parties who ought to have been cited. 10. Section 283 of the Act provides for the powers ofthe District -.. \ Judge to grant probate, which is in the following terms : "283. Power of District Judge.

- (1) In all cases the District judge or District Delegate may, ifhe thinks proper, - (a) examine the petitioner in person, upon oath; (b) require further evidence ofthe due execution ofthe will or the right ofthe petitioner to the letters ofadministration, as the case maybe; (c) issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration. (2) The citation shall be fixed up in some conspicuous part ofthe court-house, and also the office ofthe Collector ofthe district and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct.

(3) Where any portion ofthe assets has been stated by the petitioner to be situate within the jurisdiction ofa District Judge in another State, the District Judge issuing the same shall cause a copy ofthe citation to be sent to such other District Judge, who shall publish the same in the same manner as if it were a citation issued by himself, and shall certify such publication to the District Judge who issued the citation. ". 11. Section 307(1) ofthe Act provides for power ofthe Executor or Administrator to dispose ofproperty in the following terms : "307. Power ofexecutor or administrator to dispose ofproperty. - ,,. (I) Subject to the provisions of sub-section (2), an executor or administrator has power to dispose of the property of the deceased, vested in him under section 211, either wholly or in part, in such mannef'as he may think fit. " 12. Sons oflate Har Bhagwan had entered Caveats. Their objections would be considered in the probate proceedings.

Raj Kumai is not only opposing grant ofprobate in favour ofthe respondents herein in respect y ofthe Will date 09. 09. 1997; but he himselfis said to be claiming under a Will executed by Late Har Bhagwan on 30. 10. 1997. 13. A transferee ofa property during the pendency ofa proceeding is not a necessary party. Citations are necessary to be made to only of those who; inter alia, claim through or under the Will or deny or dispute the execution thereof. ~ 14. The High Court in its impugned judgment has noticed that the attesting witnesses ofthe Will had already been examined. Ifthe appellant herein is impleaded as a party, the clock would be put back. Before the High Court as also before us, arguments have been advanced in reg_ard · SUNILGUPTA v. KIRANGIRHOTRA[SINHA,J. ] 833 to conduct ofthe appellant as also the fact that they are only speculators , who had purchased litigated properties. But we may not go thereinto. 15. In Banwarilal Shriniwvas (supra) whereupon Mr.

Ramachandran has placed reliance, the High Court was considering the case ofa purchaser in a proceeding under Section 263 ofthe Act. 16. Raj Kumar evidently was aware of the proceedings. If proceeding had been initiated for grant ofprobate, the appellant and/or ,. > his predecessor, Shri Amit Pahwa would be deemed to have notice thereof. 17. Citation, as is well-known, should be conspicuously displayed on a notice board. i3efore purchasing the properties, Amit Pahwa and consequently the appellant had taken a calculated risk. In a situation of this nature, he is not a necessary party. He took the risk ofthe result of the probate proceedings. His apprehension that Raj Kumar may not take any interest in the litigation cannot by itselfa ground for interfering with the impugned judgment. It is speculative in nature. 18. In Seth Beni Chand (supra), whereupon reliance has been placed by Mr.

Ramachandran, this Court was considering an argument as to whether alienees ofproperties are entitled to citation in probate proceedings. This Court proceeded on the assumption that Banwarilal Shrinivas (supra) lays down the correct law. But even therein a distinction was made stating that the alienee was a transferee pendent lite. The said decision, therefore, is an authority for the proposition that no citation need be issued to any person who had no right to the property prior to the commencement ofthe probate proceedings. This Court in no uncertain term opined that the alienees had no right to be heard in the appeal The said decision, therefore, runs counter to the submission of Mr. Ramachandran. 19. We may notice that a Division Bench ofthe Delhi High Court in Indian Associates v. Shivendra Bahadur Singh & Ors. , [104 (2003) DLT 820], opined that the court must be satisfied in regard to the execution ofthe Will. It is not concerned with any other arrangement. It was held: "26.

The respondent on the other hand have tried to distinguish 't the cases relied upon by the appellant by contending that all those were cases where, certain persons were allowed to intervene or were impleaded but all were cases offamily members and as such as the appellant-herein, could apply to be made a party in probate proceedings. 27. During the hearing ofthe matter, we drew the attention of both the parties to the provisions ofSection 307 ofthe Succession Act, which made the permission ofthe court to be mandatory for purposes of transfer of property by an administrator. Both the parties were heard on this aspect. " 20. Even otherwise ordinarily a transferee pendent lite without leave ofthe court cannot be impleaded as a party. [See Bibi Zubaida Khatoon v. Nabi Hassan Saheb and Anr. , [2004] 1 SCC 191]. 21. Furthermore, the plaintiff in the suit is the dominus litis. Ifhe intends to take a calculated risk in the matter, the court may not exercjse its discretionary jurisdiction.

[See Kasturi v. lyyamerumal and Ors. , [2005] 6 SCC 733 - Para 18 and Dhannalal v. Kalawatibai & Ors. , [2002] 6 sec 16, Para 23] 22. For the reasons aforementioned, we do not find any merit in this appeal, which is dismissed accordingly with costs. Counsel's fee assessed at Rs. I0,000/-. 23. In view ofthe aforementioned judgment and order, no orders are necessary to be passed in the contempt petition. N. J. Appeal dismissed.