In The Matter Of Vikash Jain Vs

Sabyasachi Bhattacharyya, J

The present application arises out of a letters of administration proceeding initiated by the petitioner before the Additional District Judge - 01, (East) Karkardooma Courts, Delhi, which was registered as Probate Case No. 51 of 2009, in respect of the registered Will of his deceased father late Tej Kumar Jain dated April 8, 2008. The estate of the deceased is comprised of two immovable properties in Delhi and one in Kolkata. The testator was ordinarily a resident of Delhi and expired there on July 22, 2009.

The Additional District Judge at Delhi, by his Judgment and Order dated December 4, 2015, granted letters of administration in respect of the Delhi properties. Vide Order dated June 11, 2014, the issue relating to the jurisdiction of the said court to adjudicate upon the matter qua the Kolkata property was decided as a preliminary issue. It was decided that the Delhi court did not have territorial jurisdiction to adjudicate qua the Kolkata property and the petition for letters of administration was directed to be returned to the petitioner qua the said property for filing the same in the court of competent jurisdiction.

The aforesaid proceeding was contested by respondent nos. 2, 4 and 5, respondent no. 3 and respondent no. 6 therein separately. Respondent no. 6 was added on its own prayer while the others, being heirs of the testator, were cited.

Subsequently the petitioner initiated L. A. Case No. 164 of 2017 before the District Judge at Alipore, District: South 24‐Parganas for grant of letters of administration in respect of the Kolkata property of late Tej Kumar Jain. In the said proceeding, the petitioner made an application on December 1, 2017 for dispensing with service of citation on the near relations of the testator and for fixation of a date of hearing of the proceeding. The said application was allowed on February 16, 2018, thereby dispensing with service of notice/citation on the near relations of the testator.

However, vide Order No. 11 dated September 29, 2018, the Additional District Judge, Thirteenth Court at Alipore, to whom the matter had been transferred for disposal, again directed the petitioner to take steps at once for service of notice/citation on the relatives of the deceased as well as on the property for with the L. A. Case had been filed. The said order is under challenge in the present application under Article 227 of the Constitution of India.

Learned counsel for the petitioner argues that, in view of all formalities having been duly complied with in the previous letters of administration proceeding in Delhi, including the registered Will being duly proved and citations issued, a repetition of such procedure was unnecessary now. Furthermore, the present proceeding has been initiated as per direction of the Delhi court merely to extend the letters of administration, already granted, to the Kolkata property.

That apart, it is argued, the Additional District Judge acted without jurisdiction in virtually sitting in judgment over the previous order of the District Judge, dispensing with citation. The Additional District Judge did not have the jurisdiction to recall the order of the District Judge on the ground that no reason for dispensing with notice was disclosed in such order. The specific application for dispensing with service, filed by the petitioner, was decided by the order of the District Judge and the same had attained finality, thus not being amenable to being upset by a coordinate forum.

Placing reliance on Section 228 of the Indian Succession Act, 1925 (hereinafter referred to as "the 1925 Act"), it is submitted that since the registered Will‐in‐ question was already proved duly and deposited in a court of competent jurisdiction in Delhi while obtaining letters of administration in respect of the Delhi property of the testator and an authenticated copy thereof was produced before the Additional District Judge at Alipore, there arose no question of further citation. Even if such citation was made afresh, the citees could not reagitate their objections to the Will, as such objections have already been decided by the Delhi court, thereby attracting the principle of res judicata.

Learned counsel was put on notice, before he concluded his arguments, that the court may consider the following judgments: (2008) 4 SCC 300 [Krishna Kumar Birla Vs. Rajendra Singh Lodha and others]; (2008) 1 SCC 267 [Basanti Devi Vs. Ravi Prakash Ram Prasad Jaiswal]

A perusal of the scheme of citation in letters of administration proceedings under the 1925 Act would require a consideration of the following Sections of the said Act:

"Succession Act, 1925:

Administration, with copy annexed, of authenticated copy of will proved abroad. - When a will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the State whether within or beyond the limits of India and a properly authenticated copy of the will is produced, letters administration may be granted with a copy of such copy annexed.

... .... ....

When probate or letters of administration may be granted by District Judge. - Probate of the will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, movable or immovable, within the jurisdiction of the Judge.

.... .... ....

Disposal of application made to Judge of district in which deceased had no fixed abode. - When the application is made to the Judge of a district in which the deceased had no fixed abode at the time of his death, it shall be in the discretion of the Judge to refuse the application, if in his judgment it could be disposed of more justly or conveniently in another district, or, where the application is for letters of administration, to grant them absolutely, or limited to the property within his own jurisdiction.

.... .... ....

‐ Conclusiveness of probate or letters of administration. ‐ Probate or letters of administration shall have effect over all the property and estate, moveable or immoveable, 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,

shall, unless otherwise directed by the grant, have like effect throughout the other States.

The proviso to this section shall apply in India after the separation of Burma and Aden from India to probates and letters of administration granted in Burma and Aden before the date of the separation, or after that date in proceedings which were pending at that date.

The proviso shall also apply in India after the separation of Pakistan from India to probates and letters of administration granted before the date of the separation, or after that date in proceedings pending at that date, in any of the territories which on that date constituted Pakistan.

Transmission to High Courts of certificate of grants under proviso to Section 273. ‐(1) Where probate or letters of administration has or have been granted by a High Court or District Judge with the effect referred to in the proviso to Section 273, the High Court or District Judge shall send a certificate thereof to the following Courts, namely:

(a) when the grant has been made by a High Court, to each of the other High Courts;

(b) when the grant has been made by a District Judge, to the High Court to which such District Judge is subordinate and to each of the other High Courts.

(2) Every certificate referred to in sub‐section (1) shall be made as nearly as circumstances admit in the form set forth in Schedule IV, and such certificate shall be filed by the High Court receiving the same.

(3) Where any portion of the assets has been stated by the petitioner, as hereinafter provided in Sections 276 and 278, to be situate within the jurisdiction of a District Judge in another State the Court required to send the certificate referred to in sub‐ section (1) shall send a copy thereof to such District Judge, and such copy shall be filed by the District Judge receiving the same.

.... .... ....

Petition for probate. ‐ (1) Application for probate or for letters of administration, with the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the will or, in the cases mentioned in Sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating -

(a) the time of the testatorʹs death,

(b) that the writing annexed is his last will and testament,

(c) that it was duly executed,

(d) the amount of assets which are likely to come to the petitionerʹs hands, and

(e) when the application is for probate, that the petitioner is the executor named in the will.

(2) In addition to these particulars, the petition shall further state, ‐

(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

(3) Where the application is to the District Judge and any portion of the assets likely to come to the petitionerʹs hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.

.... .... ....

Petition for letters of administration. ‐ (1) Application for letters of administration shall be made by petition distinctly written as aforesaid and stating ‐

(a) the time and place of the deceasedʹs death;

(b) the family or other relatives of the deceased, and their respective residences;

(c) the right in which the petitioner claims;

(d) the amount of assets which are likely to come to the petitionerʹs hands;

(e) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(f) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

(2) Where the application is to the District Judge and any portion of the assets likely to come to the petitionerʹs hands is situate in another State the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.

.... .... ....

Powers of District Judge. ‐ (1) In all cases the District judge or District Delegate may, if he thinks proper. ‐

(a) examine the petitioner in person, upon oath;

(b) require further evidence of the due execution of the will or the right of the petitioner to the letters of administration, as the case may be;

(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 of the courthouse, and also the office of the Collector of the 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 of the assets has been stated by the petitioner to be situate within the jurisdiction of a District Judge in another State, the District Judge issuing the same shall cause a copy of the 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."

To understand the scheme of grant of letters of administration accompanied by a Will under the 1925 Act, in the limited context of grants in districts where only a portion of the property of the testator is situated, we have to look into the above provisions.

Section 270 generally provides for the grant of letters of administration to the estate of a deceased by a District Judge if it appears by a properly verified petition of the applicant, that the testator or intestate, as the case may be, at the time of his decease, had a fixed place of abode, or any property, movable or immovable, within the jurisdiction of the Judge.

As per Section 271, a Judge before whom such an application is made, but in whose district the deceased had no fixed abode at the time of his death, has the discretion to refuse the application, if in his judgment it could be disposed of more justly or conveniently in another district, or, where the application is for letters of administration, to grant them absolutely, or limited to the property within his own jurisdiction.

Section 273 provides for the conclusiveness of letters of administration, which extends, by default, to the whole of the State where it is granted. However, when a District Judge, within whose jurisdiction the deceased at the time of his death had a fixed place of abode, grants it, he has to certify that the value of the property and estate affected beyond the limits of the State does not exceed ten thousand rupees, for the grant to have conclusive effect throughout the other States where the deceased also had properties.

Section 274 (1) (b) makes it clear that, on such a grant encompassing properties in other States as well, the District Judge shall send the aforementioned certificate not only to the high court to which he is subordinate but also to each of the other High Courts.

Sub‐section (3) of Section 274 further provides that where any portion of the assets has been stated by the petitioner under Sections 276 and 278 to be situate within the jurisdiction of a District Judge in another State, the Court is required to send a copy of the certificate referred to in sub‐section (1) to such District Judge in the other state, who shall file the same upon receipt thereof.

Section 276 (3) provides that, in an application for letters of administration with the Will annexed before a District Judge, if any portion of the assets likely to come to the petitioner's hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.

Section 278 (2) makes a provision similar to Section 276 (3) as regards petitions for letters of administration simpliciter.

Something very relevant in the present context is provided in Section 283, sub‐sections (1) (c), (2) and (3) of the 1925 Act. In all cases of grant, sub‐section 1 (c) stipulates issue of citations upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of letters of administration. Sub‐section (2) provides that the citation shall be fixed up in some conspicuous part of the courthouse and also in the office of the Collector of the district and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct.

Sub‐section (3) mandates that where any portion of the assets has been stated by the petitioner to be situate within the jurisdiction of a District Judge in another State, the District Judge issuing the same shall cause a copy of the 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.

It is noteworthy that all persons claiming to have any interest in the estate of the deceased, and not only the intestate heirs, have been given a right to be cited and to come and see the proceedings before the grant of letters of administration. The citation has to be fixed up in some conspicuous part of the courthouse and also in the office of the Collector of the district and otherwise published or made known in such manner as the Judge issuing the same may direct.

The entire procedure above has been made applicable to the District Judge of the other state by sub‐section (3), which mandates a copy of the 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.

Thus it is seen that sufficient checks and bounds have been provided in the 1925 Act itself for giving a right of hearing before grant of letters of administration, not only to the intestate heirs of the deceased testator, but also to all persons claiming to have any interest in the estate of the deceased.

The same principle is echoed in (2008) 4 SCC 300 [Krishna Kumar Birla Vs. Rajendra Singh Lodha and others], wherein it was held by the Supreme Court that caveatable interest includes even transferees pendente lite and tenants of the premises, apart from many others and is very wide in amplitude.

Read in conjunction with the relevant statutory provisions, the above judgment opens up the opportunity of hearing, before grant of letters of administration with the Will annexed, to a wide variety of people, the only test being, whether the person claims any interest in the estate of the deceased. If tenants and transferees pendente lite and the like are included within the fold of interested persons, as held in the aforementioned judgment, it is palpable that there has to be a citation in the district located in a different State, where a part of the assets is situated, than the issuing State. Exactly the same scheme finds resonance in sub‐sections (2) and (3) of Section 283, read in conjunction.

Now coming to Section 228 of the 1925 Act, which the petitioner vehemently relies on, the same only operates in the limited sphere of whether the original Will is required to be produced if it has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the State, for grant of letters of administration. The answer given in the said Section is that, in such cases, production of a properly authenticated copy of the Will would suffice.

This is merely a rule of procedure and of convenience, in no way dealing with the necessity or otherwise of a fresh citation in the district where the authenticated copy is produced. Section 228 is circumscribed by, and has to be read in conjunction with, the other Sections as discussed above, in particular Section 283, sub‐sections (2) and (3) of the 1925 Act.

It was categorically held in the judgment reported at (2008) 1 SCC 267 [Basanti Devi Vs. Ravi Prakash Ram Prasad Jaiswal].

In the present case, nothing has been shown to the effect, rather the contrary has been admitted by counsel for the petitioner in his argument, that the procedure as stipulated in Section 283 (3) was followed by the Delhi court. As such, there was no way for any person, residing in West Bengal and claiming to have any interest in the estate of the deceased, where letters of administration is now sought in respect of the West Bengal property, to be aware of the proposed grant, unless a fresh citation was issued.

The only exemption which could be claimed by the petitioner, as per Section 228 of the 1925 Act, was that he could produce a copy of an authenticated copy of the Will, instead of the original Will, since the original thereof was already proved and deposited in the Delhi District Court.

However, no exemption as to citation could be granted to the petitioner, as discussed above.

An additional factor which has to be considered here is that a grant of letters of administration with the Will annexed operates, like a probate, as a judgment in rem, affecting not only the parties inter se but the world at large. As such, the courts ought to be more cautious in ensuring notice on all interested parties before such grant, since the standard of caution has to be on a higher stratum than a dispute inter partes.

As far as the Additional District Judge having virtually set aside/recalled the earlier order of the District Judge dispensing with service, although the argument of absence of jurisdiction in that regard is initially lucrative, but it does not hold good due to two reasons:

First, the court always has inherent power to undo its own wrong, even if committed in co‐ordinate jurisdiction, by application of the principle Actus Curiae Neminem Gravabit.

Secondly, this Court can, under the supervisory jurisdiction conferred by Article 227 of the Constitution, pass an order not only affirming the order impugned therein, but also to negate the effect of any previous illegal order which would perpetuate a gross legal or jurisdictional error which was rectified by the impugned order, which is now being affirmed.

Accordingly, C.O. No. 951 of 2019 is dismissed, thereby affirming the order impugned therein and directing the petitioner to take immediate steps in the Court below to effect citation, as contemplated in the Indian Succession Act, 1925 for grant of letters of administration in respect of the Kolkata property of the deceased testator.

In view of the delay already occasioned, the Court below is requested to expedite the hearing of the letters of administration proceeding as convenient to it and in consonance with its own roster.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.