Delhi High Court
K.P.R. Nair vs Meenakshi Sardana & Anr on 5 May, 2025
Author: Dharmesh Sharma
Bench: Dharmesh Sharma
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 03 April 2025
Judgment pronounced on : 05 May 2025
+ FAO 288/2023 & CM APPL. 58371/2023
K.P.R. NAIR .....Appellant
Through: Mr. Sushil Salwan, Sr. Adv.
with Mr. Bharat Deepak, Mr.
Kaustubh Sinha, Mr. Tarun
Kapoor & Mr. Ashutosh Kumar
Singh, Advs.
versus
MEENAKSHI SARDANA & ANR. .....Respondents
Through: Mr. Sanjiv Kakra, Sr. Adv. with
Mr. Akash Madan, Adv. for R-
1.
Mr. Praveen Kumar & Mr.
Kumar Shubham, Advs. for R-2.
+ FAO 290/2023 & CM APPL. 58392/2023
K.P.R. NAIR .....Appellant
Through: Mr. Sushil Salwan, Sr. Adv.
with Mr. Bharat Deepak, Mr.
Kaustubh Sinha, Mr. Tarun
Kapoor & Mr. Ashutosh Kumar
Singh, Advs.
versus
SUNDER CHATHLI & ORS. .....Respondents
Through: Mr. Sanjeev Sindhwani, Sr.
Adv. with Mr. Sanjay Dua &
Mr. Akash Madan, Advs. for
R1.
Mr. Praveen Kumar & Mr.
Kumar Shubham, Advs. for R-2.
FAO 288/2023 & 290/2023 Page 1 of 26
Signature Not Verified
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:05.05.2025
19:08:44
CORAM:
HON'BLE MR. JUSTICE DHARMESH SHARMA
JUDGMENT
DHARMESH SHARMA, J.
1. These First Appeals have been preferred under Section 299 of the
Indian Succession Act, 1925 [“ISA”] by the appellant herein who is the
nephew and sole executor of the last Will and testament of Late Smt.
Rajamma S. Madden [“testatrix”]. He is assailing the impugned
judgment dated 30.05.2023 passed by the learned Additional District
Judge-03, New Delhi District, Patiala House Courts, New Delhi
[“Probate Court”] in Misc. DJ No. 25/2022 titled as “Meenakshi
Sardana v. K.P.R. Nair & Ors.”, whereby the learned Probate Court has
allowed the application filed by the respondent No.1 herein under
Section 263 of the ISA, thereby revoking the Letter of Probate granted
vide order dated 25.11.2014 in P.C. No. 5/2014 in respect of the
registered Will dated 23.10.2013 of the testatrix. Since the present
appeals raise common questions of fact and law, they can be
conveniently disposed of together by way of a common judgment.
FACTUAL MATRIX:
2. Before probing into the facts leading to the filing of the present
appeals, it is necessary to first establish the genealogy of the parties
involved. There is no dispute that late Mrs. Chandnee Widya Madden,
had acquired two properties in her lifetime viz. (1) Property No. 11-A,
Prithvi Raj Road, New Delhi, and (2) Property No. 21 and 21-A,
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:05.05.2025
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Tughlak Road, New Delhi, and upon her death, she left behind four
daughters and one son, namely Mrs. Rasina Bhatia, Ms. Prem Madden,
Mrs. Sheila Chathli, Mrs. Meenakshi Sardana and Mr. Santosh M.
Madden respectively. Ms. Prem Madden remained unmarried and died
on 11.01.1989. Mrs. Sheila Chathli married Mr. Sunder Chathli and
they had a daughter Ms. Jyotika Oguz. Mrs. Sheila Chathli died on
12.01.2018 and Mr. Sunder Chathli died on 01.07.2021 and are
survived by the abovenamed daughter, who is being represented in the
present proceedings through her attorney Mrs. Meenakshi Sardana. On
the other hand, Mr. Santosh M. Madden married Mrs. Rajamma S.
Madden and he died issueless on 09.12.2006. Mrs. Rajamma S. Madden
died on 07.12.2013 leaving behind no son or daughter or Class-1 legal
heir, but she had one sibling/sister, namely Mrs. Saraswathy Amma,
who is claimed to be her sole legal heir. The aforesaid position can be
explained through the following family tree:
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:05.05.2025
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3. Upon the demise of Mrs. Chandnee Widya Madden on
20.10.1965, several disputes arose between her legal heirs regarding the
division of the aforesaid two properties, however, upon the intervention
of the Court, eventually the disputes were resolved in the following
terms:
(1) The property bearing No. 11-A, Prithvi Raj Road, New Delhi
devolved exclusively upon the son Mr. Santosh M. Madden.
(2) The property bearing No. 21 and 21-A, Tughlak Road, New
Delhi devolved upon the above named four daughters in equal
share i.e., 25% each. However, it is pertinent to note that upon
the death of one of the daughters Ms. Prem Madden, by the
operation of law, the remaining three sisters as well as one
brother inherited her 25% undivided share in the said property
in equal proportion i.e., 6.25% each.
4. Accordingly, when Mr. Santosh M. Madden died intestate on
09.12.2006, his widow Mrs. Rajamma S. Madden/testatrix became the
sole and absolute owner of the residential free-hold property bearing
No. 11-A, Prithvi Raj Road, New Delhi, and she also acquired 6.25%
undivided right, title, share and interest in the lease-hold property
bearing No. 21 and 21-A, Tughlak Road, New Delhi.
5. In her lifetime, Mrs. Rajamma S. Madden appears to have
executed two Agreements to Sell dated 20.03.2010 and 19.10.2013 both
in favour of one Mr. Om Prakash Arora, for the sale of the aforesaid
two properties to the extent of her acquired share. Although no sale deed
was ever executed or registered by Mrs. Rajamma S. Madden during
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:05.05.2025
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her lifetime in this regard, it is alleged that by way of her last Will and
testament dated 23.10.2013, which was duly registered, she bequeathed
the said two properties to the extent of her share, in favour of Mr. Om
Prakash Arora and also distributed the balance sale consideration
payable, among her sisters, brothers, nieces, nephews (including the
appellant herein), friends and other relatives. Incidentally, the appellant
herein, who is one of the nephews of the testatrix and beneficiaries
under her alleged Will, was appointed by the testatrix/ Mrs. Rajamma
S. Madden as the sole executor of her Will.
6. In the aforesaid backdrop, upon the demise of the testatrix on
07.12.2013, the appellant herein, being the sole named executor, filed a
petition under Section 276 of the ISA bearing PC No. 5/2014 before the
learned Probate Court for grant of probate of the registered Will dated
23.10.2013. In the said probate petition, the appellant herein impleaded
only two parties viz. the State as the respondent No.1, and Mrs.
Saraswathy Amma, the real sister of the deceased, as the Respondent
No.2 therein.
7. Pursuant thereto, the notice of the probate petition was served on
both the respondents in said probate proceedings, i.e., the State and Mrs.
Saraswathy Amma (now deceased), and citation of the said probate
petition to the public at large was duly published through the Court,
thereby inviting objections, if any, of the public at large to the same.
However, since no objection was received by the Court either from the
State or from any other person, and upon Mrs. Saraswathy Amma filing
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KUMAR VATS
Signing Date:05.05.2025
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her ‘No-objection’ to the grant of probate, the said probate petition was
allowed by the learned Probate Court vide judgment dated 25.11.2014
and Letter of Probate with copy of the Will annexed was granted and
issued in favour of the appellant herein.
8. Accordingly, the assets of the testatrix were distributed among
the beneficiaries as per the alleged Will dated 23.10.2013 of the
testatrix, and vide order dated 04.09.2015, the learned Probate Court
discharged the appellant/ sole executor from his duties upon noting that
the compliances under Section 317 of the ISA had been made by the
appellant herein.
9. The events that transpired thereafter bring us to the precipice of
the issues raised herein. After a lapse of about 6 years from the date of
grant of probate, the respondents herein who happen to be the sister-in-
law and the husband of another sister-in-law of the testatrix, filed
separate applications on 11.12.2020 and 01.04.2021 respectively, under
Section 263 of the ISA bearing Misc. DJ Nos. 25/2022 and 26/2022
before the learned Probate Court, for revocation of the judgment dated
25.11.2014 allowing the probate of the registered Will dated
23.10.2013. The application bearing Misc. DJ No.26/2022 has been
filed by Mr. Sunder Chathli, which is being contested by Mrs.
Meenakshi Sardana on the basis of Power of Attorney dated
19.02.2021.
10. The prayer for revocation of probate of Will was sought primarily
on the ground that in terms of Sections 15(1)(b), 15(2)(b) and 8(b) read
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:05.05.2025
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with Class II of the Schedule to the Hindu Succession Act, 1956
[“HSA”], the legal heirs of the husband of the testatrix who was a
female Hindu, are entitled to succeed the estate of the testatrix. It was
also contended that notice of the probate proceedings was never issued
to the legal heirs of the husband of the testatrix i.e., Mr. Santosh M.
Madden, by the appellant herein, as per Rule 3 of Chapter XXIX of the
Delhi High Court (Original Side) Rules, 2018, and thus, the grant of
probate of the alleged Will dated 23.10.2013 is materially defective for
non-issuance of notice to necessary and proper parties, thereby vitiating
the entire probate proceedings.
11. The appellant herein objected to the said application filed under
Section 263 of ISA on various grounds inter alia challenging the same
to be barred by limitation besides assailing the locus standi of the
respondents herein; and discharge of the appellant as the executor
herein vide judgment dated 25.11.2014 followed by order dated
04.09.2015.
IMPUGNED JUDGMENT
12. Suffice it to state that after hearing parties at length, the learned
Probate Court allowed the applications filed by the
applicants/respondents herein, under Section 263 of ISA vide common
impugned judgment dated 30.05.2023, thereby revoking the Letter of
Probate with the copy of the Will dated 23.10.2013 annexed, which was
granted by it earlier vide judgment dated 25.11.2014 passed in PC No.
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:05.05.2025
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5/2014, besides reviving the proceedings in PC No. 5/2014 which are
still sub judice.
13. In summary, the learned Probate Court vide impugned judgment
dated 30.05.2023, found that the non-applicant/appellant herein i.e., the
sole executor, could not establish anything on record to prove that the
applicants/respondents herein had prior knowledge of the execution of
the alleged Will of the testatrix, or the probate so granted. The learned
Probate Court reasoned that in view of the non-issuance of notice and
non-impleadment of the applicants/respondents herein to the probate
proceedings, the right to file the applications under Section 263 of ISA
accrued from the date of knowledge and not from the date of grant of
probate. Accordingly, it was held that the applications at hand are
maintainable for having been moved by the applicants/respondents
herein well within the prescribed period of limitation of three years.
14. Pertinently, learned Probate Court inter alia opined that since the
testatrix and her husband Mr. Santosh Madden did not leave behind any
issue of their own, and since the husband predeceased the testatrix,
therefore, as per Sections 15(1)(b), 8 and 9 of the HSA besides the
Schedule annexed to the HSA, the subject properties would have
devolved upon the heirs of the husband i.e., Mr. Santosh Madden,
including the applicants/respondents herein. It was observed that since
the alleged Will of the testatrix had disturbed this natural line of
succession/ devolution, therefore, the non-applicants/respondents
FAO 288/2023 & 290/2023 Page 8 of 26
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:05.05.2025
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herein should have been put to notice of the probate proceedings by the
appellant herein as mandated by the settled law.
15. In view of the aforesaid, the learned Probate Court held that since
the applicants/respondents (who were alive at the time of filing of the
probate petition) were indeed necessary and proper parties to the
probate proceedings, thus, the omission on the part of the appellant to
implead them in the said proceedings amounts to material concealment
from the Court. Therefore, the learned Probate Court found it fit to
exercise the discretion vested with it by virtue of Section 263 of ISA to
revoke the grant of probate dated 25.11.2014, which decision is
challenged in the instant appeal.
LEGAL SUBMISSIONS ADVANCED BY THE LEARNED
SENIOR COUNSELS FOR THE PARTIES:
16. In short, Mr. Sushil Salwan, learned senior counsel for the
appellant has urged that the impugned judgment dated 30.05.2023
allowing the applications for revocation of probate of Will is liable to
be set aside as the learned Probate Court failed to appreciate that the
applications filed by the respondents herein are hopelessly barred by
limitation as the period of limitation starts reckoning from the day of
grant of probate and not from the date of knowledge. Learned senior
counsel further relied upon the decision of this Court in Snehansu Sen
Gupta v. Sitangsu Sen Gupta 1 and the decision of the Bombay High
1
AIR 2013 Del 116
FAO 288/2023 & 290/2023 Page 9 of 26
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:05.05.2025
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Court in S.A. Modi v. Mrs. T.A. Rana 2 to substantiate his contention
that the belated filing of an application under Section 263 of ISA on the
ground of omission to issue citations to the persons required to be
apprised of the probate proceedings, does not beget an absolute right to
claim revocation of probate of Will.
17. On merits, it was urged that the respondents herein have no locus
standi to file the applications for revocation since Section 15(2)(b) of
HSA is not applicable to the facts of the present case for the reason that
Mrs. Rajamma S. Madden did not die intestate, and rather she left
behind a registered Will. It was further contended that even otherwise,
the testatrix had already disposed of the two subject properties during
her lifetime by way of two Agreements to Sell executed in favour of
Mr. Om Prakash Arora, thus, the estate of the testatrix consisted of only
a part of the monetary consideration in lieu of the sale, which has since
been distributed among the beneficiaries under the Will dated
23.10.2013, and not the immovable property itself.
18. Lastly, it was argued that the impugned notice inviting objections
to grant of probate of Will which was duly published in ‘The Statesman’
newspaper on 15.02.2014 is a publication in rem, therefore, it covers
the entire conspectus as regards the relatives of the testatrix and it is the
applicants/respondents herein who should have been more vigilant and
not slept on their rights for six years. Reliance in this regard has been
placed on the decision of the Bombay High Court in Uma Vithal
2
AIR 2004 Bom 353 (DB)
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KUMAR VATS
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Jhaveri v. Nikhil Vithal Jhaveri 3. Lastly, it was contended that the
impugned judgment is liable to be set aside as it was passed by the
learned Probate Court before service of notice of the applications under
Section 263 of ISA to the legal heirs of the respondent No. 2 i.e., Mrs.
Saraswathy Amma (since deceased).
19. Per contra, Mr. Sanjiv Kakra, learned senior counsel for the
respondent No.1 in FAO 288/2023 i.e., legal heir of the husband of the
testatrix, urged that the applications filed by them under Section 263 of
ISA are not barred by limitation as the applicants/respondents herein
derived knowledge of the alleged Will dated 23.10.2013 and the probate
proceedings only in June 2020 when Mr. Om Prakash Arora filed a suit
for partition with respect to the property situated in Tughlak Road and
served notice of the same to the applicants/respondents herein. It was
submitted that immediately thereafter in December 2020, the
application for revocation was filed by the respondent No.1 in FAO
288/2023, therefore, the question of filing the application for revocation
at a belated stage does not arise.
20. While drawing the attention of this Court to Section 263 of ISA
and Illustration (ii) thereof, learned senior counsel pointed out that the
mandate of the law is that while impleading parties to a probate petition,
the petitioner has to assume that the testator died intestate and based on
that assumption, those persons who would have acquired rights in the
3 2014: BHC-OS:4627
FAO 288/2023 & 290/2023 Page 11 of 26
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KUMAR VATS
Signing Date:05.05.2025
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estate of the testatrix as per the general rules of succession, ought to be
impleaded in the probate proceedings as necessary and proper parties.
In view of the aforesaid, it was contended that since the heirs of the
husband of the testatrix i.e., his three sisters, would have inherited the
estate of the testatrix, a female Hindu, as per general rules of succession
contained in Sections 15(1)(b) and 15(2)(b) of the HSA, thus, they
should have been impleaded to the probate proceedings initiated by the
appellant herein.
21. Additionally, it was urged that citing the sister of the testatrix in
the probate proceedings instead of the legal heirs of the husband, is of
no consequence whatsoever since the chain of succession in the present
case stops at Section 15(2)(b) i.e., heirs of the husband, who were still
alive at the time of filing of the probate petition, whereas the sister of
the testatrix would’ve fallen under Section 15(2)(d) i.e., heirs of the
father, thus, she holds no locus in the chain of succession applicable to
the estate in question. While inviting the attention of this Court to
Section 17 of the Limitation Act, 1963, learned senior counsel urged
that a fraud has been played upon the Court as well as the
respondents/applicants herein as regards obtaining probate as the same
has been done without impleading the rightful legal heirs of the testatrix
to the probate proceedings.
22. On the other hand, Mr. Sanjeev Sindhwani, learned senior
counsel for the respondent No.1 in FAO 290/2023 i.e., legal heir of the
sister-in-law of the testatrix, urged that even the publication dated
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KUMAR VATS
Signing Date:05.05.2025
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15.02.2014 made in The Statesman newspaper has been issued only qua
the property at Prithvi Raj Road and makes no mention of the property
at Tughlak Road, and thus, the said publication is also tainted on
account of suppression of facts as well as fraud played by the appellant
herein in conniving with Mr. Om Prakash Arora so as to illegally usurp
the estate of the testatrix. Accordingly, it was contended that since
fraud vitiates everything, the grant of probate dated 25.11.2014 has
been rightly revoked by the learned Probate Court vide impugned
judgment dated 30.05.2023.
23. In support of their submissions, learned senior counsels for the
applicants/ respondents have relied upon the decisions in the cases of
Swaminathan v. Alankamony (dead) though LRs4, Manibhai
Amaidas Patel v. Dayabhai Amaidas 5, Yuv Rajnarain Gorwaney v.
State6, Seethalakshmi Ammal v. Muthuvenkatrama Iyenger7,
Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal8, Manju Puri v.
Rajiv Singh Hanspal 9, Pallav Sheth v. Custodian10, and A.V.
Papayya Sastry v. Government of A.P. 11.
ANALYSIS & DECISION:
4
MANU/SC/0339/2022
5
(2005) 12 SCC 154
6
2005 SCC OnLine Del 1207
7
MANU/SC/0276/1998
8
(2008) 1 SCC 267
9
(2020) 19 SCC 127
10
MANU/SC/0437/2001
11
(2007) 4 SCC 221FAO 288/2023 & 290/2023 Page 13 of 26
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24. I have given my thoughtful consideration to the submissions
advanced by the learned counsels for the parties. I have also perused the
relevant record of the case.
25. In order to decide the present appeals, it would be apposite to
refer to Section 263 of the ISA, which is found in Part IX, Chapter-III
titled ‘Alteration and Revocation of Grants’, which reads as under:
“263. Revocation or annulment for just cause.–The grant of
probate or letters of administration may be revoked or annulled for
just cause.
Explanation.–Just cause shall be deemed to exist where–
(a) the proceedings to obtain the grant were defective in substance;
or
(b) the grant was obtained fraudulently by making a false suggestion,
or by concealing from the Court something material to the case; or
(c) the grant was obtained by means of an untrue allegation of a fact
essential in point of law to justify the grant, though such allegation
was made in ignorance or inadvertently; or
(d) the grant has become useless and inoperative through
circumstances; or
(e) the person to whom the grant was made has willfully and without
reasonable cause omitted to exhibit an inventory or account in
accordance with the provisions of Chapter VII of this Part, or has
exhibited under that Chapter an inventory or account which is untrue
in a material respect.
Illustrations
(i) The Court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to have
been cited.
(iii) The will of which probate was obtained was forged or revoked.
(iv) A obtained letters of administration to the estate of B, as his
widow, but it has since transpired that she was never married to him.
(v) A has taken administration to the estate of B as if he had died
intestate, but a will has since been discovered.
(vi) Since probate was granted, a later will has been discovered.
(vii) Since probate was granted, a codicil has been discovered which
revokes or adds to the appointment of executors under the will.
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(viii) The person to whom probate was, or letters of administration
were, granted has subsequently become of unsound mind.
26. A bare perusal of the aforesaid provision would show that the
grant of Probate or Letters of Administration may be revoked or
annulled on demonstrating “just cause”, which is explained to
encompass various situations enumerated vide Explanation clause (a) to
(e). The question that arises for determination before this Court is
whether the grant was obtained fraudulently by making a false
suggestion, or by concealment of some material fact from the Court; or
whether the grant was obtained by means of an untrue allegation of fact
that was essential or the core point of law irrespective of the fact
whether such allegation was made in ignorance or inadvertently. The
decision would rest on the proposition of law governing clause (b) and
clause (c) and particularly in the light of illustration (ii), which provides
that the grant which was made without citing parties who ought to have
been cited, would result in revocation of the grant for just cause.
27. Reverting to the instant matter, it is an admitted fact that in the
petition seeking Probate of the Will dated 23.10.2013 purportedly
executed by the testatrix, the petitioner impleaded the State as
respondent No.1 and the sister of the testatrix, namely Saraswathy
Amma as respondent No.2, who has since died and sought to be
represented through her legal heirs. The pleadings categorically
averred that the testatrix left behind no other legal heir except her
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sister. It is an admitted fact that the testatrix had acquired the estate of
her deceased husband.
28. At this juncture, it would be appropriate to reproduce Section 15
of the HSA, which provides as under:
“15. General rules of succession in the case of female
Hindus.―(1) The property of a female Hindu dying intestate shall
devolve according to the rules set out in section 16,―
(a) firstly, upon the sons and daughters (including the children of
any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),―
(a) any property inherited by a female Hindu from her father or
mother shall devolve, in the absence of any son or daughter of the
deceased (including the children of any pre-deceased son or
daughter) not upon the other heirs referred in sub-section (1) in the
order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or
from her father-in-law shall devolve, in the absence of any son or
daughter of the deceased (including the children of any pre-deceased
son or daughter) not upon the other heirs referred to in sub-section
(1) in the order specified therein, but upon the heirs of the husband.”
29. A careful perusal of the aforesaid provision would show that in
terms of sub-Section (1) to section 15, as a general rule, the property of
a female Hindu dying intestate devolves: firstly, upon her sons and
daughters including children of any pre-deceased son or daughter) and
the husband; secondly, upon the heirs of husband; thirdly, upon the
mother and father; fourthly, upon the heirs of the father; and lastly, upon
the heirs of the mother. However, the general rule of succession is
controlled by sub-clause (2) that provides that where a property is
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inherited by a female Hindu from husband or from her father-in-law,
the property shall devolve, in the absence of legal heir in the first class
upon the heirs of the husband.
30. At the cost of repetition, since the testatrix inherited the estate of
her deceased husband by virtue of sub-Section (2) (b) to Section 15 of
the HSA, the property was supposed to devolve upon herself or her
husband. That being the legal position, the plea advanced by the learned
counsel for the appellant that the aforesaid provision shall not apply in
a case where the Probate of a Will left behind by a female Hindu is
instituted, cannot be sustained in law. It is well ordained in law that
since the Probate proceedings are in the nature of a judgment in rem,
the first and foremost legal requirement is that all parties who may have
some legal right or other as regards genuineness or authenticity of the
Will, should be impleaded in the Probate proceedings.
31. It is well settled that wherever a Will is propounded that has been
left behind by a female Hindu, the first step is to presume that the
testatrix has died intestate and then there should be a fact finding as to
who would be the heirs concerned who ought to be impleaded as a party
to the Probate or for that matter, petition for grant of Letters of
Administration. Reference in this regard can be had to a decision in the
case of Swaminathan v. Alankamony (dead) though LRs (supra)
wherein the Supreme Court drew a distinction as between Section 276
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vis-à-vis Section 278 12 of the ISA that enumerates the essential
requirements of setting out the relevant averments and the details for
grant of probate and Letters of Administration respectively.
32. It is pertinent to mention that the plea by the learned counsel for
the appellant that unlike a petition under Section 278 of the ISA, there
is no legal mandate to supply the details of the family or other relatives
of deceased and their respective residences was brushed aside by the
Supreme Court holding that grant under the aforesaid provision could
be revoked or annulled in terms of Section 263 of the ISA. It was held
that non-impleadment of parties in such proceedings, which ought to
have been cited shall be deemed to be a ‘just cause’ for revocation or
annulment of the grant.
33. Reference can also be invited to another decision by the Supreme
Court in the case of Amaidas Patel v. Dayabhai Amaidas (supra)
whereby in reference to Section 263 of the ISA, it was held as under:
“9. This would clearly show that it is necessary to cite parties who
would otherwise have an interest in the succession to the estate of
the deceased. That would naturally include all the heirs of the
12 278. Petition for letters of administration.–(1) Application for letters of administrationshall be made by petition distinctly written as aforesaid and stating–
(a) the time and place of the deceased’s 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 petitioner’s 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 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.
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deceased. Besides, Section 283 gives power to the District Judge as
regards the issue of 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. Necessarily therefore the
facts on the basis of which the District Judge is required to exercise
his discretion must be fairly placed before him. In this case the
respondent had done nothing of the sort as we have already noticed.
10. The courts below also overlooked the fact that in their
application for revocation the appellants had clearly stated that in
other proceedings between the members of the family of Amaidas
and the respondent the Will had been successfully disputed. In the
circumstances, for the respondent to say that the grant was being
opposed by “nobody” was misleading. The grant was obtained by
concealing from the court something which was very material to the
case. The appellants were entitled to be heard and doubtless the
District Judge would have directed to issue of citations to each of
Amaidas’s heirs on intestacy under Section 283(1)(c) of the Act had
the true facts been revealed by the respondent in his application for
grant of probate. The advertisement in this case was wholly
insufficient to patch up the gross lacuna.”
34. Further, the issue in question also came to be decided by the
learned Single Judge of this Court in the case of Yuv Rajnarain
Gorwaney v. State (supra) wherein in the same context i.e., interpreting
Section 263 of the ISA, reference was invited to Original Side Practice
Direction No.4 relating to testamentary and intestate jurisdiction of the
High Court, and in particular Rule (3), whereby it is provided as under:
“3. In all applications for probate or for letters of administration with
the will annexed, the petitioner shall state the names of the members
of the family or other relatives upon whom the estate would have
devolved in case of any intestacy together with their present place
of residence.”
35. In summary, it was reiterated that in determining whether a party
is a necessary or proper in Probate proceedings, it should firstly be
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assumed that the testator has died intestate and then the heir should be
ascertained. Having ascertained as to who are the legal heirs, then all
of them ought to be impleaded de hors the execution of the Will. It was
further held as under:
“5. Therefore, the Rule clearly prescribes that the applicant ought to
have been named in the probate application. That was not done.
However, the learned Counsel for the petitioner submits that he
cannot be faulted on this ground inasmuch as he represents the
executor of the Will in question and is an outsider and not a family
member. He also submitted that a public notification was carried out
in the newspaper as per Rules and that the applicant has come after
five years despite being aware of the death of late Smt. Avinash
Pandit and also being present in the cremation ceremony. Therefore,
according to the learned Counsel for the petitioner, this application
ought not to be entertained. The learned Counsel also states that in
any event he does not admit the relationship between the applicant
and the testator as disclosed by him.”
36. Further, the Supreme Court in the case of Basanti Devi v. Ravi
Prakash Ram Prasad Jaiswal (supra), again delved into Section
283(1)(c)13 read with Section 263 of the ISA, and it was held as under:
13 283. 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 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.
(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.
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18. The provisions contained in sub-section (3) of Section 283 are
mandatory in nature. Once the statutory requirements are found to
have not been complied with, an application for revocation of the
grant of probate would be maintainable in terms of Section 263 of
the Act, apart from the fact that non-publication of citation could be
one of the grounds to revoke the grant of probate. Explanation (c)
appended thereto in a case of this nature would be attracted. The said
provision reads thus:
“263. Revocation or annulment for just cause.–The grant of
probate or letters of administration may be revoked or annulled for
just cause.
Explanation.–Just cause shall be deemed to exist where–
(a)-(b) * * *
(c) the grant was obtained by means of an untrue allegation
of a fact essential in point of law to justify the grant, though
such allegation was made in ignorance or inadvertently; or
(d) to (e) * * *”
24. It is now well settled that an application for grant of probate is a
proceeding in rem. A probate when granted not only binds all the
parties before the court but also binds all other persons in all
proceedings arising out of the will or claims under or connected
therewith. Being a judgment in rem, a person, who is aggrieved
thereby and having had no knowledge about the proceedings and
proper citations having not been made, is entitled to file an
application for revocation of probate on such grounds as may be
available to him. We are, therefore, of the opinion that the
application for revocation of the grant of probate should have been
entertained.”
37. In the light of the above, at this juncture, it would be apposite to
refer to the relevant decisive observations made by the learned Probate
Court which read as under:
“7.29 The present case is in stark contrast to the cases above. Here
the primary ground raised by the applicants seeking revocation is
that persons entitled to the property by the operation of Hindu
Succession Act have been actively kept in the dark by their non
impleadment by the propounder of the Will. It is the applicant’s case
that the probate has been obtained from the court by concealment of
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of persons vitally interested in the determination as to whether a
probate should be granted or not amounts to fraud. While the
applicants have pleaded and shown that the probate was obtained
behind their backs, the non applicants have not been able to point to
any fact by which they could claim that the applicants had
knowledge of filing of the probate proceedings or of the grant of
probate. As per Article 137 of the Limitation Act the date of
limitation is 3 years from “When the right to apply accrues” which
right accrued not when the probate was granted but when the
applicants gained knowledge of the grant of probate and the fraud
played upon them, the concealments made before the cou1t and the
applications at hand have been filed within the prescribed time since
gaining of the knowledge by the applicants. For similar reason Som
Parkash (supra) and Pawan Kumar Sharma (supra) do not come
to the rescue of the non applicants. Moreover both these case laws
based upon completely distinct facts altogether. Neither any fraud,
concealment was pleaded nor the same could be established. As far
as Snehansu Sen Gupta (supra) is concerned, the facts of the said
case were also different. In the said case the applicant merely
claimed that he was close to the testator who had assured him that
he shall get equal share in the estate. In the case at hand the
applicants were necessary and proper parties, as discussed above in
detail and their omission in the probate proceedings is unjustified
and amounts to material concealment. Furthermore in the said case
it was held in para 17 as under:-
“17. Clearly, the omission to issue citations to persons who
should have been apprised of the probate proceedings
would normally result in revocation but this is not an
absolute right irrespective of the other considerations
arising from the proved facts of a case. ”
7.30 In the given facts and circumstances of the case, the
discussion as above, it is a fit case to exercise the discretion vested
with the court, by virtue of Section 263 of the Indian Succession Act
1925, to revoke the grant of probate. As regards S.A. Modi (supra)
is concerned, one of the major reason why the Hon’ble Court did not
agree with the applicant who sought revocation was that the Court
did not believe that the applicant did not have any knowledge of the
Will/probate and rather it was a case where the applicant had due
knowledge but despite that he did not take any steps to find out the
status of the Will or whether any probate in respect of the same has
been obtained or not. As far as the discretionary power of the court
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is concerned, once there is a just cause, justifiable grounds for
revocation of the probate and there is no other impediment in
exercising the discretionary power, the same ought to be exercised
in the interest of justice as well as to satisfy the court’s conscience.
Moreover the entire estate of the testatrix has not been administered
and once revoked the natural consequences as per the law shall
follow.
7.31 As far as the other grounds raised by the applicants are
concerned, none of those grounds are available to the applicants for
seeking revocation of the probate so granted, though they may be a
ground to challenge the probate proceedings, the genuineness &
authenticity of the Will sought to be probated. Same was also fairly
conceded by Ld. Counsels for the parties during the course of
arguments.”
38. Unhesitatingly, the aforesaid observations are absolutely
flawless. In summary, since the applicants/ respondents Mrs.
Meenakshi Sardana and Ms. Sheila Chathli were alive at the time of
filing of the Probate petition, by all means they should have been
impleaded as a necessary and proper party to the Probate proceedings
upon forming an assumption as if testatrix had died intestate. In other
words, the applicants/sisters of the testatrix being Class II legal heirs,
were indeed necessary and proper parties and should have been arrayed
as such in the Probate petition. The plea raised by the learned counsel
for the appellant herein that there was a delay of six years in filing the
applications for revocation is hardly of any consequence since it is
borne out from the record that the applicants/legal heirs of testatrix
acquired knowledge of the agreement to sell dated 19.10.2013 as well
as Will dated 23.10.2013 on receiving a copy of the suit bearing CS(OS)
No. 162/2020 titled as ‘Om Prakash Arora v. Meenakshi Sardana &
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Ors.‘ filed before the High Court of Delhi on 04.07.2020 seeking
partition of the suit property at Tughlak Road, New Delhi on the basis
of an agreement allegedly entered into with the testatrix for sale of her
alleged 6.25% share in the suit property at Tughlak Road, New Delhi.
39. Be that as it may, if the conditions provided under section 263 of
the ISA are fulfilled, the issue of limitation does not come into play at
all. Reference in this regard can be invited to decision in the case of
Pallav Sheth v. Custodian (supra) wherein it was observed as under:
“48. The provisions of Section 17 of the Limitation Act are
applicable in the present case. The fraud perpetuated by the
appellant was unearthed only on the Custodian receiving
information from the Income Tax Department, vide their letter of 5-
5-1998. On becoming aware of the fraud, application for initiating
contempt proceedings was filed on 18-6-1998, well within the
period of limitation prescribed by Section 20. It is on this application
that the Special Court by its order of 9-4-1999 directed the
application to be treated as a show-cause notice to the appellant to
punish him for contempt. In view of the abovestated facts and in the
light of the discussion regarding the correct interpretation of Section
20 of the Contempt of Courts Act, it follows that the action taken by
the Special Court to punish the appellant for contempt was valid.
The Special Court has only faulted in being unduly lenient in
awarding the sentence. We do not think it is necessary, under the
circumstances, to examine the finding of the Special Court that this
was a continuing wrong or contempt and, therefore, action for
contempt was not barred by Section 20.”
40. Interestingly, in the case of Manju Puri v. Rajiv Singh Hanspal
(supra), the Supreme Court allowed the revocation of the Probate even
after 29 years of the grant for the fact that the necessary parties had no
knowledge of the Probate proceedings. The sum and substance of the
matter is that the question of delay attributable to the applicants/
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respondents/heirs of the Second Class as regards the testatrix is
dispensable for the fact that they had not been joined in the Probate
proceedings and were not aware of the execution of the Will.
41. Before parting with this case, the plea raised by the learned senior
counsel for the appellant that the impugned order was passed even
before the LRs of the deceased Mrs. Saraswathy Amma were brought
on the record, does not cut any ice for the simple reason that the sister
of the testatrix does not fall under Section 15(1)(b) of the HSA. There
is no merit in the plea that if a Will is left by the testatrix, the matter
would be governed by Section 15(1) of the HSA. All said and done, the
impugned order does not go into the veracity of the Will. The veracity
of the Will is yet to be tested by the learned Probate Court after hearing
the contest put forth by the applicants/respondents i.e., Mrs. Meenakshi
Sardana and Mr. Sunder Chathli.
42. Insofar as the decision in the case of Uma Vithal Jhaveri v.
Nikhil Vithal Jhaveri (supra), relied upon by the learned senior counsel
for the appellant, the same is clearly distinguishable since it was a case
where a plea was taken by the objectors to the Probate of a Will on the
ground that the citation by way of publication in the newspaper had not
been served upon them. However, it was found that soon upon the death
of the testator, the objectors were apprised by way of a legal notice that
the deceased-testator had left behind a Will in favour of the petitioner,
which was also replied to, and the Will was challenged. It was in the
said backdrop that it was held that the petition for revocation under
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Section 263 of the ISA was barred under Article 137 of the Limitation
Act, 1963.
43. In view of the aforesaid discussion, this Court has no hesitation
in holding that the impugned order dated 30.05.2023 passed by the
learned Probate Court does not suffer from any illegality, perversity or
incorrect approach in law or facts.
44. Accordingly, both the present appeals are hereby dismissed.
45. The pending applications also stand disposed of.
DHARMESH SHARMA, J.
MAY 05, 2025
Sadiq
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