Rakesh Kumar Juneja & Ors vs State Of Delhi & Anr

Rajiv Sahai Endlaw, J

IA No.15162/2017 (for exemption).

Allowed, subject to just exceptions.

The application stands disposed of.

TEST.CAS. 73/2017 & IA No.15161/2017 (for stay).

This Petition under Section 263 of the Indian Succession Act, 1925 seeks revocation of the probate ordered to be granted of the document dated 7th

June, 2003 as validly executed last Will of Baba Chakravarthy Darvesh.

The case of the petitioners is (i) that DLF Housing and Construction Limited, being the developers of the colony of Greater Kailash, Part-II, New

Delhi, vide Sale Deed dated 27th July, 1964 sold plot of land bearing no.E-255, Greater Kailash, Part-II, therein to one Gurdial Kaur; (ii) that the said

Gurdial Kaur, vide Sale Deed dated 21st March, 1966, sold the said plot of land to Thakar Singh and Lashkar Singh; (iii) the said Thakar Singh and

Lashkar Singh, vide Sale Deed dated 14th December, 1970, sold the said plot of land to one Satinder Singh; (iv) that the said Satinder Singh vide Sale

Deed dated 2nd May, 1986 sold the said plot of land to the petitioners no.1&2 and to the husband of the petitioner no.3 who has died leaving the

petitioner no.3 only as his natural heir; (v) that the petitioners since then are the owners in possession of the said plot; (vi) that on one Baba

Chakravarthy Darvesh claiming that Gurdial Kaur aforesaid had executed a letter dated 23rd June, 1966 donating the aforesaid plot of land E-255,

Greater Kailash, Part-II, New Delhi to him, the petitioners instituted a suit and in which a decree dated 6th October, 1998 was passed declaring the

said letter to be void and non est and cancelling the same; (vii) that on learning, that Baba Chakravarthy Darvesh had executed a Sale Deed dated

27th November, 1996 with respect to the property in favour of one Hans Raj, the petitioner instituted yet another suit under Section 31 of the Specific

Relief Act, 1963 for cancellation of the said Sale Deed and which is pending; (viii) that the respondent no.2 herein namely Surinder Pal Kaur has vide

judgment dated 10th September, 2015 of this Court in FAO(OS) No.275/2013 obtained an order of grant of probate of the document dated 7th June,

2003 as validly executed last Will of Baba Chakravarthy Darvesh; and, (ix) that on the basis of the aforesaid probate, the respondent no.2 Surinder Pal

Kaur is attempting to trespass over the property aforesaid of the petitioners and has already got electricity supply to the property disconnected.

The aforesaid Hans Raj has not been impleaded as a party to this petition, presumably because he was not a party to the Probate Case either.

It being a settled position in law that a Probate Court does not decide any questions as to title to immovable property which may be subject matter

of the document of which probate is sought and being thus of the view that the petition does not disclose any cause for revocation of the probate

inasmuch as the petitioners are neither claiming under any other / subsequent Will of Baba Chakravarthy Darvesh nor as natural heirs of Baba

Chakravarthy Darvesh of whose Will probate has been granted, I have enquired from the counsel for the petitioners the need for seeking revocation.

The counsel for the petitioners has drawn attention to the orders dated 13th October, 2017 and 8th November, 2017 in application earlier filed by the

petitioners in FAO(OS) No.275/2013 vide order dated 10th September, 2015 wherein probate of which revocation is sought was granted. The said

orders disclose that the petitioners first applied for revocation in the said disposed of FAO(OS) and which application of the petitioners was dismissed

with the observation that the remedy should be agitated in the first instance before the concerned forum i.e. before the learned Single Judge.

The aforesaid order of the Division Bench cannot be construed as holding the petition for revocation to be maintainable. A petition for revocation of

probate would certainly lie in the Court of first instance, even if any appeals were preferred against the order of the Court of first instance. The

petitioners thus were wrong in approaching the Appellate Court. The Appellate Court accordingly held the application of the petitioners to be not

maintainable before it, without considering whether the petitioners at all have the locus / cause to maintain a petition for revocation of probate. The

order of Appellate Court, merely observing that relief of revocation of probate should be applied before Court of first instance will not bind the Court

of first instance if no case for entertaining a revocation petition is otherwise made out.

Thus there is no merit in the aforesaid contention of the counsel for the petitioners.

I may in this regard also notice that the Single Judge, vide judgment dated 14th December, 2009 in Test. Cas. No.48/2005 had dismissed the

petition filed by the respondent no.2 for probate of the document dated 7th June, 2003 as validly executed last Will of Baba Chakravarthy Darvesh,

reasoning that Baba Chakravarthy Darvesh himself did not have any title to the plot on the basis of the donation letter dated 23rd June, 1966 and the

document of which probate was sought was also suspicious. However the Division Bench vide judgment dated 10th September, 2015 in FAO(OS)

No.275/2013 preferred thereagainst set aside the said judgment, reasoning that a Probate Court cannot examine and render finding on question of title

and that whether the donation of the property made in 1996 (supposedly incorrect for 1966) was valid or not was not an issue that could be gone into

by the Probate Court which at best could only conclude whether the Will was genuine or not.

The counsel for the petitioners then contends that the petitioners have a locus / cause to apply for revocation because on the basis of the probate

granted by this Court, the petitioners are suffering and the electricity supply with respect to the plot has already been disconnected.

The same would again not entitle the petitioners to maintain this petition for revocation of probate, as, I repeat, the petitioners are not claiming as

heirs, natural or testamentary, of Baba Chakravarthy Darvesh probate of whose Will has been granted and are otherwise also not claiming any title in

the property aforesaid from Baba Chakravarthy Darvesh. Rather, the petitioners claim to have a decree in their favour in a suit filed against Baba

Chakravarthy Darvesh and the title which the petitioners are claiming to the plot is independent of the deceased, of whose Will probate has been

granted and even if the respondent no.2 Surinder Pal Kaur is causing any challenge to the title of the petitioners to the said property, the remedy of the

petitioners is not by way of this revocation petition but otherwise.

The counsel for the petitioners has then relied on para 10 of Elizabeth Antony Vs. Michel Charles John Chown Lengera AIR 1990 SC 1576.

The said judgment, instead of helping the petitioners also holds that by granting a probate, the Court is not deciding the disputes as to title.

The counsel for the petitioners has then relied upon the judgment of the Division Bench of the Madras High Court inC hrome Leather Company

Ltd. Vs. Q. Dawson AIR 2013 Madras 5.

Undoubtedly, in the said judgment, a third party which had acquired the property at an auction sale was held to have a caveatable interest.

However, the Division Bench of the Madras High Court in the said judgment did not noticeK rishna Kumar Birla Vs. Rajendra Singh Lodha (2008) 4

SCC 300 holding that a caveatable interest is an interest in the deceased testator’s estate which may be affected by grant of probate. It was

further held that a person who would have succeeded to the testator’s estate in case of intestate succession would ordinarily have a caveatable

interest. It was further held that any other person must ordinarily show a special interest in the testator’s estateâ€"such a special interest may be

that of a creditor of the deceasedâ€"however, the interest claimed as caveatable interest must not be one which could have the effect of destroying

the testator’s estateâ€"any person claiming any interest adverse to the testator or his estate cannot maintain any application before the Probate

Court and his remedy would be elsewhere. It was yet further held that a judgment rendered in probate proceedings though a judgment in rem would

not be determinative of questions of title and questions of title, existence of property are beyond the jurisdiction of the Probate Court and remedy of

person in respect of such types of questions is to file a separate suit.

The interest which the petitioners herein are claiming in property no. E-255, Greater Kailash, Part-II, New Delhi is destructive of the interest of

the testator Baba Chakravarthy Darvesh and adverse to the estate of Baba Chakravarthy Darvesh and such interest is neither caveatable neither

entitles the petitioners to seek revocation of probate already granted. The petitioners are not disputing the valid execution of the Will of Baba

Chakravarthy Darvesh of which probate has been granted. What the petitioners are doing is disputing the rights of the deceased Baba Chakravarthy

Darvesh to make a Will with respect to the property aforesaid.

No case for entertaining this petition under Section 263 of the Indian Succession Act is made out.

Dismissed.

The counsel for the petitioners at this stage states that liberty be granted to institute a suit.

There is no need for liberty inasmuch as what has been held above is that Revocation Petition is not maintainable. The petitioners can always take

correct remedy in law.

Dasti.