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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Shah Mohit S.
  • Sanklecha M.S.
Acts
  • 28 March, 1964, the provision of Section 263 of Indian Succession Act, 1925
  • Rules 399 and 400 of the Bombay High Court (Original Side) Rules
  • Section 263 of the Indian Succession Act, 1925
  • Article 137 of the Limitation Act
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Shah Mohit S.
  • Sanklecha M.S.
Acts
  • 28 March, 1964, the provision of Section 263 of Indian Succession Act, 1925
  • Rules 399 and 400 of the Bombay High Court (Original Side) Rules
  • Section 263 of the Indian Succession Act, 1925
  • Article 137 of the Limitation Act
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

These two appeals arise from a common order dated 13 March 2013 by a learned Single Judge dismissing:

  • a Miscellaneous Petition seeking to recall/cancel/set aside the probate granted on 12 March 1973 in respect of the Will dated 28 March 1964 of Devraj Gupta; and
  • a Notice of Motion in Suit No. 3069 of 2011 (a suit for partition) seeking (i) appointment of a Receiver in respect of certain suit properties and (ii) an injunction restraining the defendants/respondents from dealing with the suit properties described in Exhibit "B" to the plaint.

Devraj Gupta died on 13 October 1965. In his Will dated 28 March 1964 he bequeathed his properties to his wife and two sons equally. The widow, Mrs. Usharani Gupta, applied for probate in 1969 and this Court granted probate on 12 March 1973.

The appellant is an (adult) unmarried daughter of Devraj Gupta who lived with her mother and brothers at the time the probate application was made; other heirs included married daughters and one transferee (Defendant No. 8 in the partition suit). The appellant filed the present Miscellaneous Petition in 2011 (seeking revocation of probate) after she says she learned about the existence of the Will and the grant of probate during proceedings in the City Civil Court in or around February 2010, when she opposed a proposed sale of ancestral property by her brother. She also filed a partition suit alleging intestacy and claiming a 1/6th share, and in that suit pursued the Notice of Motion for injunction and receiver.

The Single Judge dismissed both the Miscellaneous Petition (revocation of probate) and the Notice of Motion (injunction/receiver) by the common order dated 13 March 2013. The appellant filed these appeals challenging that dismissal.

Legal Issues Presented

  1. Whether the probate granted on 12 March 1973 in respect of the Will dated 28 March 1964 can be revoked in 2011 under Section 263 of the Indian Succession Act, 1925, in circumstances where the appellant contends she was not served with citation and only learned of the probate in 2010.
  2. Whether Article 137 of the Limitation Act applies to proceedings for probate and its revocation and, if so, when limitation begins to run for revocation proceedings (from grant of probate or from date a person learned of the grant).
  3. Whether the appellant's suit for partition (and the interim Notice of Motion for injunction/appointment of receiver) is barred by limitation or otherwise unsustainable once probate has been granted.
  4. Whether the affidavit/record of service (citation affixation and service on next of kin) in the testamentary record suffices to defeat the appellant's challenge based on non-service and delay.

Arguments of the Parties

Appellant's Arguments

  • The appellant was unaware of the probate proceedings and the existence of her father's Will until February 2010 when she became aware during City Civil Court proceedings opposing a sale by her brother.
  • Accordingly, the cause of action for revocation accrued only when she learned of the grant of probate (in 2010), and she promptly filed the revocation petition on 18 April 2011.
  • For limitation purposes, Article 137 of the Limitation Act applies to probate proceedings and their revocation (relying on decisions of the Supreme Court: Krishna Kumar Sharma v. Rajesh Kumar Sharma (2009) and Kunvarjeet Singh Khandpur v. Kirandeep Kaur & Others (2008)).
  • Her partition claim is not barred by limitation because, until she asserted her claim, the property was held by her brother as co-owner (not adverse possession). Only when she encountered a public notice inviting objections for sale did an adverse interest arise and she sought partition and protective relief.

Respondents' Arguments

  • Records in the Testamentary Department show that citations in the probate proceeding were affixed on the notice board (28 April 1971) and served on the next of kin (12 May 1971), supported by a joint affidavit of service dated 12 May 1971.
  • Given those records, there is no reason to disbelieve the testamentary record; the appellant's bare assertion of non-service is insufficient.
  • High Court Rules (Appendix III - Part I) require preservation of affidavits of service for six years; the long gap (probate granted in 1973, revocation sought in 2011) suggests lack of bonafides and the practical unavailability of documents does not justify revocation now.
  • The Supreme Court decisions cited by the appellant concern limitation for filing probate applications and thus have no application to revocation of probate or to a civil suit for partition.
  • Once probate has been granted and the revocation application is rejected, the basis of a partition suit predicated on intestacy falls away because probate establishes testamentary disposition (i.e., decedent did not die intestate).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Krishna Kumar Sharma v/s. Rajesh Kumar Sharma, 2009 AIR 3247 (SC) The appellant relied on this decision to support the proposition that Article 137 of the Limitation Act applies to probate proceedings and their revocation (i.e., limitation may begin when a person learns of the grant). The Court recorded the appellant's reliance on this case but indicated that the decisions relied upon by the appellant dealt with the period of limitation to file an application for probate (grant) and would not, on the facts of the present case, satisfy the requirements for revocation under Section 263; the Court did not treat the decision as dispositive of revocation in the present circumstances.
Kunvarjeet Singh Khandpur v/s. Kirandeep Kaur & Others, 2008 AIR 2058 (SC) The appellant relied on this decision for the proposition that Article 137 of the Limitation Act governs probate-related limitation issues. The Court observed that Kunvarjeet Singh dealt with the issue of grant of probate and not with revocation of probate; thus, the Court found it inapplicable to establish that Section 263 conditions for revocation were met in this case.

Court's Reasoning and Analysis

The Court's analysis proceeded along these principal lines, based only on the material and findings recorded in the impugned order:

  1. Nature of a probate: The Court reiterated the settled legal position that a grant of probate operates in rem and is a judgment in rem binding on the whole world. Consequently, once probate is granted by a competent Court it is conclusive evidence as to the execution and validity of the Will until revoked.
  2. Revocation requires satisfaction of statutory condition: Because a probate is a judgment in rem, it cannot be revoked except in accordance with the conditions set out in Section 263 of the Indian Succession Act, 1925. The appellant sought revocation under Section 263, asserting that the probate proceedings were defective because required citations (per Rules 399 and 400 of the Bombay High Court (Original Side) Rules) were not served upon her.
  3. Documentary testamentary record: The Court examined the testamentary department's original record called for by the appellant and found handwritten entries showing service of citation on the next of kin on 12 May 1971 and affixation on the notice board on 20/28 April 1971, as well as a reference to a joint affidavit of service filed on 12 May 1971. On that basis the Single Judge's factual finding that citation had been served and posted was accepted.
  4. Insufficiency of appellant's assertion: The appellant had not produced evidence to rebut the testamentary record. The Court found it difficult to accept the appellant's mere statement of non-service in the face of the testamentary record and the passage of substantial time (probate granted in 1973; revocation sought in 2011).
  5. Application of Article 137 and precedents: While the appellant relied on Supreme Court authority (including Krishna Kumar Sharma and Kunvarjeet Singh) to argue that Article 137 of the Limitation Act applies (so that time runs from when a person learned of the grant), the Court observed that at least one of these decisions (Kunvarjeet Singh) dealt with the grant of probate and not its revocation. On the facts here and given the absence of proof of non-service, the Court held that Section 263's requirements were not satisfied and that the time for seeking revocation runs from the date of the grant of probate under Article 137.
  6. Consequences for the partition Notice of Motion: The Court noted it did not fully agree with the Single Judge's prima facie conclusion that the period of limitation for a partition suit accrues from the date of death, but it found that this issue need not be examined in detail. The dispositive point was that dismissal of the revocation application meant the appellant's foundational assertion (that her father died intestate) was negated by the existing probate; thus the Notice of Motion for injunction/receiver in the partition suit could not succeed once revocation was dismissed.

Holding and Implications

Holding:

Both appeals are dismissed.

Implications / Direct consequences:

  • The application for revocation of the probate granted on 12 March 1973 in respect of the Will dated 28 March 1964 is rejected; the probate stands.
  • The Notice of Motion in the partition suit seeking appointment of a receiver and an injunction is dismissed; this dismissal was treated as consequent upon the rejection of the revocation application because probate establishes that the deceased made a testamentary disposition and did not die intestate.
  • No order as to costs was made.
  • The Court did not record the setting of any new broad precedent; its decision rests on the particular facts (the testamentary record showing service of citation and the applicability of Section 263 and Article 137 as interpreted on these facts). The opinion does not purport to lay down a general rule beyond those established principles.

This summary is prepared exclusively from the text of the provided opinion and does not add or infer facts beyond what the opinion itself contains.

Show full summary ...

    Shyama Prasad Mukherjee Road v. 8 Icon Green Earth Builders &

    RESERVED ON : 25th APRIL, 2013.

    ) These two Appeals arise from a common order dated 13 March, 2013 passed by the learned Single Judge dismissing:-

    (a) a Miscellaneous Petition seeking to recall/ cancel/ set aside the probate granted on 12 March, 1973 in respect of the Will dated 28 March, 1964 of one Devraj Gupta; and S.R.JOSHI 4 of 15 appl-180-181-2013

    (b) a Notice of Motion taken out in a suit for partition bearing no.3069 of 2011 seeking appointment of Receiver in respect of the suit property described in Ex. "B" to the plaint and an injunction restraining the Defendants/ Respondents in the suit from in any way dealing with the suit properties mentioned in Ex. "B" to the plaint.

    2 The Appellant and the Respondents in both the Appeals are essentially heirs of one Devraj Gupta who expired on 13 October, 1965 save and except Defendant No.8 in suit No.3069 of 2011 who is a transferee of the suit properties.

    3 On 13 October, 1965 the said Devraj Gupta expired, having executed the Will dated 28th March, 1964. In terms of the Will dated 28 March, 1964 Devraj Gupta bequeathed all his properties to his wife and two sons absolutely in equal shares. The widow of the deceased Devraj Gupta was one Mrs. Usharani Gupta who applied for probate in 1969 by filing the above Probate Petition. At the time when an application for probate was made, the Appellant was as unmarried adult daughter staying with her mother who was the widow of the deceased Devraj Gupta and her two brothers who were sons of the deceased Devraj Gupta, who were minors at that point of time. The other heirs of the deceased Devraj Gupta were married daughters. This Court on 12 March, S.R.JOSHI 5 of 15 appl-180-181-2013 1973 granted the probate to the Will dated 28 March, 1964 of the deceased Devraj Gupta.

    4 The present Miscellaneous Petition was filed in 2011 seeking revocation of the probate granted almost 38 years ago on 12 March, 1973.

    It is the case of the Appellant that she was not aware about the filing of the probate petition before this Court nor she had any idea about the existence of the alleged Will of her late father. It was only in February, 2010, that she learnt that one of the ancestral properties to which she was entitled was being put up for sale by her brother- Respondent No.1 herein that she filed a suit in the City Civil Court at Mumbai seeking permanent injunction restraining the sale, alienation and/or creation of any third party rights in respect of the ancestral property as described in Ex. "D" to the plaint in the City Civil Court without the written permission of the Appellant. It is in the City Civil Court proceedings that she learnt about the alleged Will of her late father Devraj Gupta and grant of probate to the Will on 12 March, 1963. Therefore, in 18 April, 2011, she filed the present Petition for revocation of the probate granted on 12 March, 1973.

    5 Besides the filing of the present Miscellaneous Petition in this Court, seeking revocation of the Will, the Appellant has also filed suit S.R.JOSHI 6 of 15 appl-180-181-2013 for the partition of the property of deceased Devraj Gupta. This suit for partition is filed by the Appellant on the basis that her father one Devraj Gupta had died intestate on 13 October, 1965 entitling her to 1/6 th share in the property of her father, the late Devraj Gupta. In the above partition suit, Appellant also took out the present Notice of Motion, seeking an injunction to restrain the Defendants/ Respondents i. e. the other heirs of the deceased Devraj Gupta and Defendant No.8 who is alleged to be a transferee of the suit property from dealing with the suit property.

    6 The learned Single Judge disposed of both- the Miscellaneous Petition filed in the Testamentary Petition as well as the Notice of Motion filed in the suit by a common order dated 13 March, 2013.

    7 So far as the Miscellaneous Petition is concerned, the impugned order records a finding of fact that from the record available in the testamentary department of the Court, there is a noting to the effect that citation with regard to the probate proceedings had been served upon the next of kin as well as put up in the notice board on 12 May, 1971 and 28 April, 1971 respectively. In that view of the matter, in the absence of the Appellant being able to show any evidence of the citation not being served upon her, there was no reason to disbelieve the record as maintained by the Court. In that view of the matter, the learned Single S.R.JOSHI 7 of 15 appl-180-181-2013 Judge concluded that no fault can be found with the grant of probate on 12 March, 1973 with regard to the Will dated 28 March, 1964. Therefore, the application for revocation of probate granted on 12 March 1973 of the Will dated 28 March, 1964 was rejected.

    8 So far as the claim in the suit for partition is concerned, she held that the suit appeared to be, prima facie, barred by law of limitation.

    This was so as according to the learned Single Judge, the time for claiming partition of the property of the deceased begun to run from the date of the death of the deceased and, therefore, has to be filed within three years from the date of the death of Devraj Gupta. The learned Single Judge further held that the absence of a period of limitation to apply for a probate or Letters of Administration would not apply in respect of the Civil suit or an application for revocation of probate. In the above circumstances, she dismissed the Notice of Motion holding that no case was made out for grant of injunction and/or appointment of receiver with regard to the suit properties.

    9 Ms. Iyer, the learned Senior Counsel appearing for the Appellant submits that the citation in the probate proceedings were not served upon the Appellant and she was kept completely in the dark about the alleged Will dated 28 March, 1964 and the subsequent probate S.R.JOSHI 8 of 15 appl-180-181-2013 proceedings. According to Ms. Iyer, there was no reason for the learned Single Judge to disbelieve the Appellant particularly when she states on oath that she learnt about the alleged Will dated 28 March, 1964 and grant of the probate on 12 March, 1973 only during the City Civil Court proceeding filed by her for injunction to protect the ancestral property.

    The Counsel states that immediately on learning in the City Civil Court proceedings of the grant of Probate to the alleged Will dated 28 March, 1964, Appellant applied to this Court for revocation of the probate. The cause of action according to her would accrue only when the Appellant learnt about the alleged Will dated 28 March, 1964 and the grant of the probate when the Written Statement was filed in 2010 by the Respondent No.1 in the City Civil Court proceedings. She further submits that decision of the Supreme Court in the matter of Krishna Kumar Sharma v/s. Rajesh Kumar Sharma reported in 2009 AIR 3247 (SC) and in the matter of Kunvarjeet Singh Khandpur v/s. Kirandeep Kaur & Others, reported in 2008 AIR 2058 (SC) support her contention that Article 137 of the Limitation Act applied to probate proceedings and its revocation.

    For the purposes of limitation, time will begin to run only from the time the Appellant learnt about the grant of the probate. So far as partition suit is concerned, it is her submission that her claim for partition is not barred by limitation as till she claimed partition of her deceased father's S.R.JOSHI 9 of 15 appl-180-181-2013 property, the same was being held by her brother as a co-owner and not adverse to her. It is only when the Appellant come across the public notice inviting objections for sale of the suit property that for the first time interest adverse to her was being asserted and she sought partition. In the circumstances, the suit property ought to be protected till her claim for partition of the property devolving upon her on the death of her father on 13 October, 1964 is finally adjudicated at the trial of the suit.

    As against above, Mr. Dhond, Senior Counsel appearing for the Respondent Nos.1 to 4 submits that no fault can be found with the order of the learned Single Judge dismissing the Petition for revocation of the probate granted on 12 March, 1973. Mr. Dhond draws attention to the fact that from the records available in the Testamentary Department of the Court, there is evidence to show that the citation was affixed on the notice board on 28 April, 1971 as well as served on the next of kin on 12 May, 1971. This is duly supported by reference to an affidavit filed on 12 May, 1971 in the record found in the testamentary department. The Appellant has in the proceedings for revocation of probate made a bald statement that she was not aware about the alleged Will dated 28 March, 1964 and kept in dark about the probate proceeding. Mr. Dhond invites our attention to the High Court Rules and S.R.JOSHI 10 of 15 appl-180-181-2013 in particular to Appendix III - Part-I thereof to establish the fact that affidavits of service of citation are required to be preserved by the High Court only for a period of six years. It is these circumstances that Mr. Dhond contends that the application made for the revocation of probate granted on 12 March, 1973 is not a bona fide application as the necessary evidence to prove the service of the citation may not be available now and being aware of the same, the Appellant has filed the present Petition by making false and incorrect averments without any documents in support thereof. The petition for revocation being filed almost 38 years after grant of probate in 1973 itself evidences lack of bonafides. The decisions relied upon by the Appellant of the Supreme Court dealt with the period of limitation to file an application for probate and would have no application either for revocation of probate or for a suit for partition.

    11 So far as appointment of Receiver and grant of injunction is concerned, in the Notice of Motion taken out in the partition suit, it is the submission of Mr. Dhond, the learned Senior Counsel that once the probate has been granted and its application for revocation has been rejected, the Notice of Motion in the partition suit cannot survive. This is for the reasons that the basis of the partition suit is that father of the Appellant one Devraj Gupta who expired on 13 October, 1965 died S.R.JOSHI 11 of 15 appl-180-181-2013 intestate. However, the grant of a probate in respect of the Will dated 20 March, 1964 made by one Devraj Gupta would establish that Devraj Gupta had made a testamentary disposition of his property by a Will dated 28 March, 1964 and did not die intestate.

    12 We have considered the submission. A grant of probate operates in rem and is good against all world. It is well settled that grant of a probate by a Competent Court is a Judgment in Rem which is not only binding upon the parties to the probate proceeding but also binding on the whole world. Therefore, the order granting a probate, is conclusive evidence as to the execution and validity of the Will till such a grant of probate is revoked. Therefore, the probate granted almost 38 years ago cannot be revoked unless the requirement of Section 263 of the Indian Succession Act, 1925 are satisfied/justified. The case of the Appellant is that this Court should in terms of Section 263 of the Indian Succession Act, 1925 revoke the probate as the proceedings leading to the grant of the probate were defective in substance in as much as the citation required to be served were not served upon her in accordance with Rules 399 and 400 of the Bombay High Court (Original Side) Rules before the grant of the Probate. This submission is completely negatived by the finding of fact recorded in the impugned order that in the original S.R.JOSHI 12 of 15 appl-180-181-2013 record of the probate proceedings in the Testamentary department called for by her, shows the hand written record of service of citation on the next of kin on 12 May, 1971 as well as affixing the citation on the notice board on 20 April, 1971. Reference in a joint affidavit of service filed on 12 May, 1971 is also found in the hand written record in the testamentary department of the Court.

    13 The Appellant has not been able to show any evidence to establish that the citation was not served upon her. We find it difficult to accept on her mere statement that the citation was not served upon her, particularly in view of the records of the testamentary department of the Court and the fact that probate was granted more than 38 years ago.

    So far as the decisions of the Supreme Court in the matter of Kunvarjeet Singh (supra) is concerned, the same dealt with the issue of grant of probate and not with revocation of probate. In any case, in the facts of the present case in the absence of the Appellant being able to show that citations were not served upon her and she was kept in dark about the Will dated 28 March, 1964, the provision of Section 263 of Indian Succession Act, 1925 is not satisfied. Moreover, one must keep in mind that a grant of probate by a Competent Court operates as a judgment in Rem and once the probate to the Will is granted, then the said probated S.R.JOSHI 13 of 15 appl-180-181-2013 Will is good not only in respect of the parties to the proceedings, but against the whole world. Therefore, if the probate is granted, the same operates in Rem and time runs from the date of the grant of the probate for purposes of limitation under Article 137 of the Limitation Act in proceedings for revocation of probate.

    14 So far as the Notice of Motion in the partition suit is concerned, we do not prima facie agree with the observations of the learned Single Judge that the period of limitation for the purposes of filing partition suit accrues from the date of the death of father of the Appellant. However, we are not examining the above issue in detail as the above finding will not in the present facts materially alter the result in the Notice of Motion. This is for the reason that once the application for revocation of probate is dismissed, then, the entire basis of the Appellant's case in the suit for partition that her father - Devraj Gupta died intestate on 13 October, 1965 comes to an end. The grant of probate of the Will dated 28 March, 1964 by this Court negatives the basic premise of the Appellant's case that her father -Devraj Gupta died on 13 October, 1965 intestate, entitling her to 1/6th share in his property. Therefore, the dismissal of the Notice of Motion is consequent to the dismissal of the application for revocation of the probate.

    both the Appeals filed by the Appellant. Accordingly, both the Appeals are dismissed with no order as to costs.

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    Comments

    Shyama Prasad Mukherjee Road v. 8 Icon Green Earth Builders &
    (May 10, 2013)