Sh. Vinod Kumar Deceased thr. Legal Heirs vs Shri Raju and Gaju

Valmiki J Mehta, J.—This case is effective item No. 2 on the Regular Board. No. one appears for the parties although it is 3:10 P.M. I have therefore perused the record and am proceeding to dispose of the appeal.

The challenge by means of this first appeal u/s 299 and Section 384 of the Indian Succession Act, 1925 is to the impugned judgment dated 20.8.1993 of the Probate Court, and by which judgment the Probate Court allowed the petition for revocation of a probate u/s 263 and 296 of the Act on the ground of fraud having been played in obtaining the original order dated 25.5.1983 whereby the Appellants were granted letters of administration with respect to the estate of late Sh. Rewati Prasad.

The original petition for grant of letters of administration by the Appellants was filed without citing the Petitioners in the petition for revocation of the probate under Sections 263/296 of the Act as Respondent, although the Petitioners Sh. Gajju and Sh. Raju both sons of late Sh. Pokh Pal were liable to be cited being the sons of the brother of the deceased Sh. Rewati Prasad. The deceased Sh. Rewati Prasad and Sh. Pokh Pal were real brothers.

The Trial Court has allowed the petition for revocation of probate as it was held that the original order granting letters of administration dated 25.5.1983 was obtained by fraud inasmuch as the Respondents, Sh. Gajju and Sh.Raju were not cited as Respondents in the petition for letters of administration although, it was admitted that Sh. Rewati Prasad died issueless. Sh. Rewati Prasad died leaving behind properties being two houses at Delhi and one plot of land at Ghaziabad. The Court below has referred to the admission of the Appellants that Rewati Prasad died issueless and yet, the Respondents being the brother''s sons were not cited as Respondents, although, they were persons directly interested. The relevant findings and conclusions of the Trial Court are contained in paras 8 to 11 of the impugned judgment and which read as under:

Paras 6.7 and 8 of the present petition u/s 263 of the Succession Act read as under:

That the deceased Revti Parshad had two brothers namely, Moti Ram and Pokh Pal and both the brothers had pre-deceased him.

That Sh. Revti Parshad had died issueless in the year 1981. His wife had pre-deceased him. Sh.Moti Ram had also died issueless.

That Sh. Pokh Pal had four sons - Netra Pal, Gajju, Raju and Dharam Pal and three daughters - Kasturi, Naraini and Doly - (Netra pal, Kasturi, Naraini from former wife)." In reply to these averments, the grant of the letters of administration have pleaded, as under:

That para No. 6 is not denied.

That in reply to para No. 7, through it is not denied that Sh. Rewati Parshad died issueless, in 1981, and his wife had predeceased him, the Petitioners are not aware about Moti Ram.

That para No. 8 of the application is not denied.

From these pleadings, it is clear that Shri Revti Parshad had two brothers, namely, Shri Moti Ram and Shri Pokh Pal, and both of them had pre-deceased Shri Revti Parshad. It is also admitted that Shri Revti Parshad had died issueless in the year 1981, and his wife had pre-deceased him. It is also admitted that Shri Moti Ram, one of the brothers had also pre-deceased him. It is also admitted that Shri Pokh Pal, the 2nd brother had pre-deceased him, leaving behind 4 sons, namely Shri Netar Pal, Shri Gajju, Shri Raju and Shri Dharam Pal and three daughters, namely Smt. Kasturi, Smt. Naraini and Smt. Dolly. No. plea has been taken even here by the grantees of the letters of administration that Shri REvti Parshad. In para No. 9 of the present application, it was further pleaded that Shri Netar Pal had pre-deceased Pokh Pal and Revti Parshad, and this fact has also not been denied in the reply.

The position thus comes to that when Revti Parshad had died, he had left behind Gajju, Raju and Dharam Pal- three sons and Smt. Kasturi, Smt. Naraini and Smt. Dolly - three daughters of his pre-deceased brother Pokh Pal and two grand - sons, namely Shri Vinod Kumar and Shri Ashok Kumar who are the sons of pre-deceased son Netra Pal.

None of the aforesaid heirs fall in Class - Iand succession will devolve on the heirs of Class-II. These were No. heirs of category I, II and III. In Category - IV of Class - II, the heirs comprise of:

(1) Brother''s son,

(2) Sister''s son,

(3) Brother''s daughter,

(4) Sister''s daughter,

Thus, the claim of the present Petitioners is better and Superior to that of the original Petitioners who had claimed the letters of administration. Obviously, the names of the legal heirs left behind by Shri Revti Parshad had not been disclosed in the petition. Section 263 of the India Succession Act provides that the grant of probate of letters of administration may be revoked or annulled for just cause.

In view of the aforesaid findings and conclusions contained in paras 8 to 11, the Trial Court has in para 12 arrived at a conclusion that a fraud was played when the letters of administration were originally granted and therefore there was "just cause" in terms of Section 263 of the Indian Succession Act, 1925 for revocation. I completely agree. There was fraud played at the time of grant of the original orders for letters of administration inasmuch as the Respondents who were directly and substantially interested were not made as parties and who were in fact the heirs in law higher than the predecessor in interest of the Appellants who had applied for the letters of administration.

One more reason given by the Court below is that the Original Court which granted the probate had No. jurisdiction inasmuch as since properties were situated not only within the territorial jurisdiction of Delhi, but also in the territorial jurisdiction of another State, it was only the High Court exercising civil jurisdiction which would have jurisdiction as the District Court had jurisdiction with respect to properties outside its jurisdiction only provided the same were of the value only upto Rs. 10,000/-. The Court below has recorded that the value of the properties has been assessed at Rs. 17,000/- after the letters of administration were granted. In any case, I need not dwell further on this aspect inasmuch as I agree that fraud was practiced when the letters of administration were originally granted inasmuch as the Respondents herein who were in fact in a category higher than the Appellants under the schedule to the Hindu Succession Act were deliberately not cited as parties to the original petition for grant of letters of administration.

In view of the above, I do not find any merit in the appeal, which is accordingly dismissed, leaving the parties to bear their costs.