Hans Raj Mittal vs Khushi Ram Ganga Ram and Others

Jindra Lal, J.—This first appeal arises out of an order passed by the Senior Subordinate Judge, Amritsar, on the 1st of May, 1963, allowing the application of the Respondents and revoking the grant of a probate in favour of the Appellant.

The testator Tilak Ram made a will on the 12th of April, 1960, and died on the 21st of April, 1960. Hans Raj Mittal and other executors, named in the will, applied for a probate to the Senior Subordinate Judge, Amritsar, who granted a probate on the 19th of May, 1961. On the 11th of July, 1961, an application was made by the Respondents u/s 263 of the Indian. Succession Act (hereinafter referred to as the Act) for the revocation of the grant'' mentioned above. It was alleged by the Applicants that (a) the testator was not a Sanyasi as alleged by the propounders of the will, (b) the Applicants Khushi Ram and Babu Ram were relatives of the testator and had not been impleaded in the probate proceedings, and (c) the will was a forged one and that the application for probate was collusive. This application was also made in the Court of the Senior Subordinate Judge Amritsar. An objection was raised by the Appellants that the Senior Subordinate Judge, Amritsar, had no jurisdiction to revoke a probate. This objection prevailed and on the 4th May, 1962 the application u/s 263 of the Indian Succession Act was returned to be filed in a Court of competent jurisdiction. It was consequently filed in the Court of the District Judge, Amritsar, on the 27th of May, 1962 and was contested by the Appellants. The learned District Judge, Amritsar, framed the following issues:

Whether the Applicants have locus standi to file the petition?

Whether the probate granted to the Respondents can be revoked on the grounds urged in para No. 3 of the petition?

He then recorded the whole of the evidence and the matter was posted for arguments on the 30th of April, 1963, on which date the learned District Judge entrusted the case to the Senior Subordinate Judge, Amritsar, for disposal. Parties were directed to appear before the Senior Subordinate Judge on that very day. The learned Senior Subordinate Judge heard arguments on that day and by his order, dated the 1st of May, 1963, revoked the grant.

It has been held in the order of the learned Senior Subordinate Judge dated the 1st of May, 1963 that (a) the testator was not a Sanyasi, (b) Khushi Ram and Babu Ram, are, in fact, relations of the testator and, being relatives, they should have been impleaded as Respondents, and, in any case, citation should have been issued to them before the grant of the probate, and (c) regarding the ground of forgery, the Senior Subordinate Judge left the question open to be decided afresh.

Mr. Krishan Lal Kapur learned Counsel for the Appellant has urged that the learned Senior Subordinate Judge had no jurisdiction to deal with an application for the revocation of grant of a probate. Section 264 of the Act gives jurisdiction to the District Judge for granting and revoking pro bates and letters of administration in all cases within his district. Section 265 gives powers to the High Court to appoint judicial officer within any district to act for the District Judge as a District Delegate to grant probates and letters of administration in non-contentious cases. Section 286 provides that a District Delegate shall not grant probate or letters of administration in any case in which there is contention as to the grant, or in which it otherwise appears to him that probate or letters of administration ought not to be granted in his Court. Section 286 also contains an explanation wherein ''contention'' has been defined to mean "the appearance of any one in person, or by his recognised agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding." Section 288 provides that where there is contention or the District Delegate thinks probate or letters of administration should be refused in his Court, he should return the application to the Applicant, so that it be represented to the District Judge, unless...(This later part does not concern us in the present case). It is urged, therefore, that a combined reading of the provisions, mentioned above, shows that a District Delegate cannot grant a probate, where there is contention, nor can he revoke a pro bate because the revocation of a probate is mentioned only in Section 264 of the Act and the other relevant provisions do not provide for the revocation by anybody else. It is also contended that since the District Delegate can only grant probates in non-contentious cases, and revocation implies contest the District Judge alone, can deal with the matter. It is contended, therefore, that the impugn-ed order was without jurisdiction and that this objection can be taken at any time since the Court lacked inherent jurisdiction. For this later part of the argument reliance was placed on Davinder Singh v. Deputy Secretary-cum-Settlement Commissioner 1964-66 Pun LR 555 : AIR 1964 P&H 291 (FB).

On behalf of the Respondents it was submitted by Mr. H.L. Sarin that Section 263 only provides for revocation of a grant, but no limitations have been placed upon the power as to who could revoke. Learned Counsel for the Respondents has relied upon Rules and Order of this Court printed in volume I, Chapter 20, Part B, at page 7, which contains two notifications. First is a notification u/s 265 of the Act. It is in the following terms:

Under Section 265 of the Indian Succession Act, XXXIX of 1925, the Honourable Judges of the High Court are pleased to appoint the Senior Subordinate Judge of the first class in each of the civil districts set forth in the schedule appended hereto to act, within the limits of the said civil district, for the District Judge as a Delegate to grant probate and letters of administration in non-contentious cases.

The second notification, however, is under powers conferred on the High Court in exercise of the powers conferred by Section 30, Sub-section (1) of the Punjab Courts Act and is in the following terms:

In exercise of the powers conferred by Section 30(1) of the Punjab Courts Act, VI of 1918, the Honourable Judges of the High Court are pleased to authorise the Senior Subordinate Judge of the first class in each of the civil district set forth in the schedule appended hereto to take cognizance, within the limits of the said civil district, of proceedings under the Indian Succession Act, XXXIX of 1925, which cannot be disposed of by District Delegates.

It is contended by the learned Counsel for the Respondents that the combined effect of these two notifications is that whereas the first notification appoints the Senior Subordinate Judges of the first class in each of the civil district set forth in the schedule appended thereto as District Delegates to grant probates and letters of administration In'' non-contentious cases, the effect of the second notification is that the Senior Subordinate Judges mentioned therein have been given the same powers as the District Judges enabling them to dispose of cases which cannot be disposed of by the District Delegates. By virtue of the second notification it is urged that the Senior Subordinate Judges mentioned therein can deal with matters, which under the Act can only be dealt with by the District Judges, and that the Senior Subordinate Judges mentioned therein have really been conferred the powers of District Judges under the Indian Succession Act. Alternatively, relying upon a Division Bench of the Oudh High Court reported as Kalloo v. Mt. Noor Jahan AIR 1935 Oudh 38, it has been urged that although a Senior Subordinate Judge could not deal with this revocation of the grant as a District Delegate, he could certainly decide the matter if the proceedings were transferred to him by the order of the District Judge. It is contended, therefore, that in the present case, since the proceedings were transferred without objection to the Court of the Senior Subordinate Judge, he certainly had jurisdiction to deal with the matter.

A reference to the notification mentioned above makes it clear that the learned Senior Subordinate Judge had jurisdiction to deal with the matter and I hold that the contention of the learned Counsel for the Respondent is well-founded.

The second point urged by the learned Counsel for the Appellant is that the grounds on which the grant has been revoked, is that the Applicant-Respondents who had not been impleaded, should have been impleaded. Referring to Section 276 of the Act, he submits that there is no provision contained therein that in a petition for probate the names and addresses of the relations of the testator are to be mentioned and, therefore, submits that it was not necessary to issue citations to these relations. He compares this section with Section 278 of the Act and submits that when an application for letters of administration is made, then u/s 278, Sub-section (1), Clause (b), the family or other relatives of the deceased and their respective residences should be contained in that application.

Section 283 of the Act relates to the power of the District Judge and Clause (c) of Sub-section (1) empowers the District Judge, if he thinks proper, to issue citation 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.

It has been urged by the learned Counsel for the Appellant that u/s 263 of the Act the grant of probate or letters of administration can '' be revoked or annulled for ''just cause'' and ''just cause'' has been explained in Clauses (a) to (e) which are followed by illustrations. He contends that it is open to a District Judge to revoke a grant if it was obtained fraudulently by making a false suggestion or by concealing from the Court something material to the case. This, in fact, according, to him is the main grievance of the Respondents and that had this been established or had the lower Court come to this conclusion after evidence it was open to it to revoke the grant. The lower Court has left the question of fraud open and revoked the grant. He has relied upon George Anthony Harris Vs. Millicent Spencer, and relying upon head-note (e) submits that u/s 283, Sub-section (1), it is discretionary to issue citations to all persons claiming to have an interest in the estate of the deceased, however slight that interest may be; but absence of citations does not itself invalidate a grant and submits, therefore, that the grounds made out by the Respondents did not entitle the Court to revoke the grant.

The next authority relied upon by him is Eusoof Ahmed v. Ismail Ahmed AIR 1938 Rang. 261 (FB) There, the question referred to the Full Bench was in the following terms:

Does the absence of citations in a case in which citations are ordered, but did not issue, necessarily constitute such a defect in substance as will involve revocation of the probate or is the Court at liberty to determine in the light of all the circumstances of the case whether the proceedings in which probate was granted were defective in substance?

It was held by the Full Bench that:

In cases where citations have not been ordered, the party impugning the will on the ground of his non-citation must first show that he ought to have been cited, before the burden of proof is shifted to the executor to show that the defect in the proceedings was not one of substance and that no just cause for revocation exists.

In Mt. Sheopati Kuer Vs. Ramakant Dikshit and Others, , a Division Bench interpreting Section 283 of the Act held that in a fit case the Court can and should issue citations even when the application is for probate and that Section 283 does not relate to letters of administration as contended for by the present Appellant. The matter appears to have been settled by their Lordships of the Supreme Court in Anil Behari Ghosh Vs. Smt. Latika Bala Dassi and Others, where their Lord-ships have observed that the omission to issue citations to persons who should have been apprised of the probate proceedings may well be in a normal ease a ground by itself for revocation of the grant. This, they observed, is not an absolute right irrespective of other considerations arising from the proved facts. The law has vested a judicial discretion in the Court to revoke a grant where the Court may have prima facie reasons to believe that it was necessary to have the will proved afresh in the presence of interested parties. The Court may refuse to grant annulment in cases where there is no likelihood of proof being offered that the will admitted to probate was either not genuine or had not been validly executed. It appears, therefore, that the lower Court was, on facts of the case, justified in revoking the will in the circumstances of the case.

In view of my above discussion, I hold that the order under appeal is not without jurisdiction, it was passed by a Court competent to deal with the matter; that it was open to it to revoke the grant on the grounds that the parties, who should have had a chance of contesting the will, had no such chance and, therefore, dismiss the present appeal. The Respondents are entitled to their costs.

Parties are directed to appear in the lower Court on the 22nd July, 1964.