Smt. Uma Aggarwal vs Shri Yadvinder Thakar and Others

A.L. Bahri, J.—This Letters Patent Appeal is directed against the judgment of Single Judge of this Court dated April 16, 1991, delivered in Probate Case No. 4/1989 whereby probate was ordered to issue in respect of Will and condicil executed by Seth Bagirath Dass, the deceased, in favour of Sh. Yadvinder Thakur as executor. The challenge in this appeal is not to the relief granted as aforesaid but to the orders passed in two miscellaneous applications which were also disposed of vide aforesaid judgment. In Civil Misc. No. 6350-CII/1990, a direction was given to Shmt Uma Aggarwal, the present appellant to deliver possession of bungalow No. 31, Sector 9-A, Chandigarh to Sh Yadvinder Thakur To this, there was no objection raised by Shmt. Uma Aggarwal, as mentioned in the order. In Civil Misc. 109-CII/1991, it was agreed that Shmt Uma Aggarwal would retain certain documents relating to charitable trust created by the deceased and the remaining documents in original as detailed in Schedules A and B annexed to the main petition were to be handed over to Sh. Yadvinder Thakur.

Probate case was instituted by Shmt. Uma Aggarwal u/s 278 of the Indian Succession Act for the granted of letters of administration of Will dated January 21, 1985, and codicill dated December 28, 1988 of late Seth Bhagirath Dass, Advocate, who died on November 25, 1989. It was alleged that Sh. Yadvinder Thakur was named as executor under the Will dated January 21 1985 but he had- declined to act as such. Further details of the properties with respect to which the relief was claimed are not necessary for the decision of this appeal. Suffice it to say that during pendency of the aforesaid petition, Sh. Yadvinder Thakur was transposed as one of the petitioners who also claimed relief. The following issues were framed in the case as Shmt. Soni Bai, widov of the deceased Seth Bhagirath Dass, had challenged the Will and the codicil: --

"(1) Whether the codicil dated 28-12-1988 was duly executed ?

(2) Whether the codicil dated 28-12-1988 is invalid on the grounds mentioned in para 3 of the written statement of respondent No. 9 ?

(3) Relief."

After recording a finding that Seth Bhagirath Dass had executed the Will and the codicil aforesaid, probate was ordered to be issued in favour of Sh. Yadvinder Thakur.

Sh. Jagan Nath Kaushal, Senior Advocate, appearing on behalf of the appellant Shmt. Uma Aggarwal, has argued that the directions given in the aforesaid two miscellaneous applications for delivery of possession of the house at Chandigarh and the documents relating to properties as per Schedules A and B attached to the petition were beyond jurisdiction of the Court. The court was only required to determine the genuineness of the Will and the codicil executed by the deceased and holding the same to be genuine, rightly directed issue of probate in favour of Sh. Yadvinder Thakur. As already stated, the findings on the issue aforesaid with respect to the execution of the Will and the codicil and the grant of the relief of probate in favour of Sh. Yadvinder Thakur are not in challenge in this appeal. A further contention of Sh Kaushal in this respect in that the consent given by the appellant for giving such directions in the impugned judgment will not clothe the court with jurisdiction. In support of these contentions, reliance has been placed on some judicial decisions. In The United Commercial Bank Ltd. Vs. Their Workmen, in para 15 the following observations were made :--

"The final contention that the sittings in the interval constituted only an irregularity in the proceedings cannot again be accepted because, in the first place, an objection was raised about the sitting of the two members as the Tribunal. That objection, whether it was raised by the appellants or the other party, is immaterial. The objection having been overruled, no question of acquiescence or estoppel arises. Nor can consent give a Ct. jurisdiction if a condition which goes to the root of the jurisdiction has not been performed or fulfilled. No appearance or consent can give a jurisdiction to a Ct. of limited jurisdiction which it does not possess. In our opinion, the position here clearly is that the responsibility to work and decide being the joint responsibility of all the three members, if proceedings are conducted and discussions on several general issues took place in the presence of only two folld. by an award made by three, the question goes to the root of the jurisdiction of the Tribunal and is not a matter of irregularity in the conduct of those proceedings."

In Kiran Singh and Others Vs. Chaman Paswan and Others, in para 6 of the judgment, the following observations were made :--

"It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be en- forced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties."

We have given due consideration to the observations of the Supreme Court in the aforesaid two cases and are of the opinion that the ratio of the decisions cannot be applied to the facts of the case in hand There was no inherent lack of jurisdiction of the High Court to entertain a petition filed u/s 278 of the Indian Succession Act and by consent of the parties such a jurisdiction was not conferred. In the case of United Commercial Bank Lid (supra) three persons were to constitute the Tribunal which was to adjudicate whereas only two had participated and the Supreme Court held that by consent of the parties, jurisdiction could not be conferred on two. The ratio of the decision in Kiran Singh''s case (supra) will also not apply to the case in hand. There is no inherent lack of jurisdiction, pecuniary or territorial or in respect of the subject-matter of the action in the present case. Sh. Kaushal further placed reliance on the Full Bench judgment of this Court in Devinder Singh v. Deputy Secretary-cum-Settlement Commissioner I. L. R. (1964) 1 P&h. 905 where it was observed as under :---

"Where there is inherent lack of jurisdiction in an inferior Tribunal and the matter is patent on the record the failure of a party to raise objection on the point of jurisdiction would not by itself debar it from getting relief on that score in a writ petition. Want of inherent or initial jurisdiction goes to the very root of the matter and neither consent nor acquie scence of a party can vest a Tribunal with jurisdiction where the order in the very nature of things is a nullity having been made by a Tribunal without any jurisdiction in the matter The proposition of law is well established that consent can never give jurisdiction and a decision made without jurisdiction is void and cannot be validated by the express or implied consent of a party to the proceedings. Total want of jurisdiction is an infirmity which is fatal to the proceedings and no amount of consent can cure it. There is also a distinction between want of inherent jurisdiction and irregular exercise or assumption of jurisdiction and while consent cannot clothe a Tribunal with jurisdiction where none exists, irregular exercise or assumption of jurisdiction can always be waived."

The ratio of the decision of the Full Bench can not again be applied to the case in hand as there is no total want of jurisdiction in the court. The contention of Sh. Kaushal which requires further consideration in this respect is that the powers of the Probate Court are only limited to see the genuiness of the Will and not to its validity. Reference was made to the decision of the Orissa High Court in Noili Dibya Vs. Madhusudan Tihadi and Another, where it was held :--

"All that we are concerned with in these proceedings is to see if the valid execution of the Will has been proved and whether the testator was in a fit condition of mind at the time of the execution and attestation of the Will."

There is no dispute with regard to the powers of the court in the matter of grant of probate or letters of administration on proof of due execution of the Will and that the court need not in such proceedings go into the validity or otherwise of the Will but that does not mean that the court cannot pass any orders in the exercise of jurisdiction u/s 151, Code of Civil Procedure. In the present case, the two miscellaneous applications were filed for the two reliefs stated above, i.e., for delivery of possession of the house of the deceased to the executor and delivery of the necessary documents of the properties of the deceased to the executor. No doubt, for such reliefs the executor after grant of the probate in his favour could approach the court concerned in separate proceedings However, when there was no contest between the two petitioners, i. e., Shmt. Uma Aggarwal and Sh. Yadvinder Thakur in respect of the grant of probate in favour of the later which was, in fact, granted, further consequential relief as claimed for which there was again no dispute could be granted which would otherwise also amount to satisfaction of the claim as provided Under Order 23 Rule 3 of the CPC If there was no specific provision in the CPC to cover the situation as had arisen at the time of granting probate in favour of Sh. Yadvinder Thakur, resort to the inherent powers of the court u/s 151, Code of Civil Procedure, was appropriate more so, when there was no contest or dispute with respect to the reliefs claimed in the two miscellaneous applications aforesaid. The orders passed are otherwise just and appropriate and this would further avoid multiplicity of litigation.

It has further been argued on behalf of the appellant that a suit has been filed by Shmt. Uma Aggarwal for removal of the executor Sh. Yadvinder Thakur and the impugned orders would stand in the way. There is no force in this contention. If the concerned court for sufficient reasons decides to remove the executor, necessary consequential relief regarding properties and documents, etc , could also be granted. The orders passed in these proceedings will not debar the court for the grant of such relief. It is not necessary to make any further comment on this aspect of the matter.

The specific orders passed on the two miscellaneous applications aforesaid are being reproduced as another argument was addressed that the Court could not give directions :--

"Civil Miscellaneous No. 6350-CII of 1990 is made by Shrt Yadvinder Thakur for delivery of possession of the bungalow No, 31, Sector 9-A, Chandigarh. There is no dispute amongst the learned counsel for the parties that the person who is granted probate shall be entitled to obtain possession of the said house. Even otherwise, Smt. Uma Aggarwall, represented by Shri R. K. Chhiber, Senior Advocate, has no objection to the delivery of the possession of the house to Shri Yadvinder Thakur or through Sh. J. C. Verma, Senior Advocate, who represents him in these proceedings. The possession shall be delivered by the end of April, 1991.

In Civil Miscellaneous No. 109-C-II of 1991, it is agreed by the learned counsel for the parties, that is, Shri J.C. Verrna, counsel for the petitioner and Shri R.K. Chhibar for Smt. Uma Aggarwal that all original scripts/certificates/fixed deposit receipts or any other document relating to monies belonging to the deceased or vesting in the aforesaid chantable Trust except those in which Smt. Uma Aggarwal is entered as nominee and under the codicil is entitled to retain the same, the remaining documents in original, as detailed in schedules A and B annexed with the main petition, shall be handed over to Shri Yadvinder Thakur petitioner or to Shri J. C. Verma, Advocate on his behalf by the end of April, 1991."

Referring to the order passed on C. M. No. 6350 CII/ 990, it may be noticed that the order aforesaid refers to raising of no dispute or objection for delivery of possession by Shmt. Uma Aggarwal. The only direction given is that the possession shall be delivered by end of April, 1991. The direction aforesaid was given on the basis of statement of Shmt. Uma Aggarwal recorded in the main case which is as under :--

"The house left by Seth Bhagirath Dass in Sector 9 Chandigarh is in possession of my mother-in-law and myself as trustees. My mother-in-law is not the trustee. I am ready and willing to hand over possession of the said house to the executor appointed under the Will."

No replies to the miscellaneous applications were filed.

Sh. B R. Mahajan, Advocate for the respondent, has argued that the present appeal is not maintainable against the aforesaid directions given on consent of the parties in view of Section 96(3) read with Section 141 of the Code of Civil Procedure. This contention cannot be accepted. Consent for passing orders could be either in the reply to the miscellaneous applications'' or otherwise expressed. Reples were not filed and the impugned judgment does not show that Shmt. Uma Aggarwal or her counsel had expressed the desire for giving such directions on the'' first application. Raising no dispute or objection to the grant of relief cannot be equated with giving consent to the passing of such orders as contemplated u/s 96(3) of the Code of Civil Procedure. The appeal is held to be maintainable qua orders passed on C. M. No. 6350-CII/1990.

8 In her statement recorded in the main case as has been reproduced above, Shmt. Uma Aggarwal stated that she alongwith her mother-in-law was in possession of H. No. 31, Sector 9-A, Chandigarh, and she was ready to deliver possession to the executor. It was an undertaking given by her which would show that she was in a position to deliver the possession. Thus, directions in that respect were justified and appropriate and in the interest of justice.

Sh. Kaushal has argued that contempt petition has been filed against Shmt, Uma Aggarwal for non-compliance of the impugned order as possession could not be delivered because mother-in-law of Shmt. Uma Aggarwal is in possession of the house and the impugned directions be set aside. There is no force in this contention. No comment in this respect i s required to be made. It is left to be determined in the contempt proceedings on evidence as to whether mother-in-law of Shmt Uma Aggarwal was. in fact, in physical possession and on that account Shmt. Uma Aggarwal was unable to deliver the possession and what is its effect on the contempt proceedings.

As far as order passed on CM. No. 109-CII/1991 is concerned, as reproduced above, it was passed on agreement and is, therefore, a consent order though no reply to the application was filed. The same cannot be challenged in appeal.

For the reasons recorded above, this appeal is dismissed with costs Counsel fee Rs. 1,000/-.